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to make an examination of appellant's eyes and to report to Buxbaum. Friedman's examination included the use of measuring apparatus and charts which he asked appellant to read with advices to Friedman as to the extent of his vision, thus tested. Friedman told Evers nothing about the results of his examination. He telephoned to Buxbaum, however, and outlined to Buxbaum a prescription for the attainment of appellant's best visual acuity. He also told Buxbaum, but not Evers, of the existence of a “possible Pathology.” Buxbaum duly recorded: “Dr. F. suggests recommending ophthamologist” 5 (sic) either to a private doctor or to the Episcopal Eye, Ear & Throat Hospital.
In Silver v. Lansburgh & Bro. we concluded that a corporation in the District of Columbia may lawfully
specified respects including “(c) Anatomy and physiology and such pathology as may be applied to optometry.” Id. $ 511. If an optometrist must exhibit such knowledge to qualify, we may assume he is expected to refer for treatment such cases as he recognizes may require it. "Moreover, the complaints do not show that a supervision of sales of spectacles by optometrists ... who will be in position to inform [the customer] as to eye troubles which cannot be remedied by magnifying glasses, is not a step in the public interest.” D. S. Kresge Co. v. Ottinger, 29 F.2d 762, 765 (2 Cir. 1928), aff'd sub nom. Roschen v. Ward, 279 U.S. 337, 339 (1929), where Mr. Justice Holmes, commenting on the New York statute, said: “If we assume that an examination of the eye is not required in every case, it plainly is the duty of the specialist to make up his mind whether one is necessary and, if he thinks it necesary, to make it.”
And see excerpts from Friedman's deposition, infra.
5 “An ophthalmologist is a duly licensed physician who specializes in the care of the eyes. An optometrist examines eyes for refractive error, recognizes (but does not treat) diseases of the eye, and fills prescriptions for eyeglasses. The optician is an artisan qualified to grind lenses, fill prescriptions, and fit frames." Williamson v. Lee Optical Co., 348 U.S. 483, 486 (1955).
6 72 App. D.C. 77, 111 F.2d 518 (D.C. Cir. 1940).
employ a licensed optometrist. While deciding that the practice of optometry failed to rise to the level of a professional relationship such as that between a physician and his patient or an attorney and his client, we nevertheless recognized that the primary purpose of the regulatory statutes “was to insure that the service would be rendered by competent and licensed persons and thereby to protect the public from inexpertness.
The District Code denounces as unlawful and as a misdemeanor the practice of optometry without a license. Implicit in the very fact of regulation, as the Silver case makes clear, is the Congressional policy that the optometrist be competent and that the public be protected from "inexpertness.” The Code itself makes a distinction between the optometrist and “persons selling spectacles and (or) eyeglasses
19 The Congress in prescribing a plan of licensing as to optometry "was not dealing with traders in commodities, but with the vital interest of public health .. » 10 to the end that there might be afforded "protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief.” 11 The pub
7 Id. at 79, 111 F.2d at 520; we so interpreted the legislative plan and the purpose to be accomplished. Compare New Jersey State Board of Optometrists v. Koenigsberg, 110 A.2d 325, 328, 33 N.J.Super. 387 (1954): “The general aim of the legislature evidenced by the act is to protect the public against ignorance, incapacity, deception and fraud in connection with the care and preservation of a vital and delicate human organ."
8 D. C. CODE $ 2-502 (1951).
9 D. C. CODE § 2-520 (b) (1951) specifies that the provisions of Chapter 5 shall not apply to those merely merchandising eyeglasses and “who do not attempt either directly or indirectly to adapt them to the eye.”
10 Semler v. Dental Examiners, 294 U.S. 608, 612 (1935). 11 Ibid.
lic policy considerations so outlined by Mr. Chief Justice Hughes are no less vital when applied, in principle, to those who would render services in connection with so essential and delicate an organ as the human eye. We would not read the Silver case as implying that high standards of quasi-professional conduct are not to apply simply because we there decided that a corporation might render services to the public through licensed optometrists in its employ.
Here for all practical purposes the optometrist Friedman joined the optician Buxbaum for the accomplishment of a business result, common to both, for which a charge was to be made which both would share. Buxbaum could not measure the visual acuity of Evers. Friedman did not have the customer who had consulted Buxbaum. Appellees' respective counsel properly conceded when questioned that it made no difference whether Friedman rendered his services in Buxbaum's establishment or in his own. As the consulted optician, Buxbaum had undertaken an affirmative line of conduct, and throughout he was under an affirmative duty accordingly to take whatever precautions were reasonably required to protect Evers from negligence stemming from that conduct. He certainly knew that Evers had consulted him to have his eyes examined and to see if he needed glasses. He likewise knew that the “doctor” had found a possible pathology and had suggested recommending that Evers consult an ophthalmologist. Buxbaum made no such recommendation. He sold the trusting Evers eyeglasses for which he charged $27, remitting $5 to Friedman. Had he advised Evers to consult a specialist in accordance with Friedman's recommendation, he might not have sold the glasses. Evers might in that circumstance have consulted a specialist who might have detected earlier, as he did later, the real source of what Friedman identified as a pathological case. Buxbaum was warned, Evers was not. This appellee can now scarcely be heard to say that, be
cause he himself was unlicensed, he can be justified in withholding information which if disclosed might have lost him a customer. We need not be concerned with fine distinctions between "misfeasance" and "nonfeasance.” The simple subsisting fact is that when he was under a duty to speak he chose not to do so.12 To say shortly that such conduct may give rise to one of the essential elements of a claim for which relief may be had can hardly be assailed.
Much of what has been said applies with even greater force to the licensed Friedman. He questioned Evers as to his condition and his personal habits. He had examined the appellant within the limits of the skills he was licensed to exercise. He found, as his deposition discloses, that Evers with his right eye was not able to read the 20/200 letter, the large “E” on the chart.
Excerpts from his deposition will demonstrate additional background. Friedman recognized that Evers was a pathological case, suffering from what Friedman believed to be a "chronic retrobulbar neuritis. This in itself is a pathologic case. The ... glasses did help the patient to a degree ... between twenty-five and thirty percent. ... [I]f glasses do not improve a person's vision
[ in a pathologic case at least twenty percent, at least two
12 When Evers tried on the glasses and told Buxbaum that he failed to note any improvement, Buxbaum “said for me to wear the glasses and get used to them and that my eyes would adjust themselves, or that I would get to where I could see later on.”
No claim has here been urged with reference to D. C. CODE $ 28-1115(1) (1951) which reads in part: "Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment ... there is an implied warranty that the goods shall be reasonably fit for such purpose.” Cf. Gilbert v. Louis Pizitz Dry Goods Co., 186 So. 179, 182, 237 Ala. 249 (1939); Frank R. Jelleff, Inc. v. Braden, 98 U.S. App.D.C. 180, 187-88, 233 F.2d 671, 678-79 (D.C.Cir. 1956).
lines, we do not prescribe glasses. We only prescribe glasses where the visual acuity is increased.” But Friedman knew, clearly, that “He should be referred to a medical doctor or an ophthalmologist, someone who is more trained for further study and investigation to look into this.” Later he added “There was enough pathology not to go any further. The man was a pathologic case . I am not a medical doctor, I am not a brain surgeon nor a neurologist, and I can't go any further. I am trained just so much.” Friedman explained that he kept no records since Buxbaum was a competitor. “Since this man is not my patient directly, but I was helping Mr. Buxbaum in the examination of this man, all the information is phoned to Mr. Buxbaum. The patient is not told anything in our office, since he is not our patient; he is Mr. Buxbaum's.” Thus, Friedman would absolve himself-he had been employed by Buxbaum—not by Evers. We do not understand that as a licensed optometrist he may thus be freed of responsibility or that be may compose his own standard and thus be shielded. His own testimony disclosed a limit beyond which he himself would not go in a pathological case when so recognized in one of his own customers. Whether that standard so defined is one generally applicable in the District of Columbia by those possessed of an optometrist's skill is a matter of proof on which the record here is silent. We are left in no doubt on this much—when he identified a pathological case here, he remained silent.
Enough has been said to indicate the basis upon which Evers placed himself in the care of both appellees. Certainly Friedman with his greater training, and Buxbaum to whom the information was imparted, could be found to have failed Evers at a critical point, despite appellant's reliance upon them. When the public, including Evers, might have expected under the Code to be protected against "inexpertness, " 13 his vulnerability was compound
13 Silver v. Lansburgh & Bro., supra note 6, 72 App.D.C. at 79, 111 F.2d at 520.