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ed. Reliance by Evers upon these men was reasonable and foreseeable by the appellees. They also are chargeable with the not unreasonable likelihood of the consequences of Evers' attempting to get adjusted to the glasses when he should have been in the hands of an ophthalmologist.14
The facts as to Evers' later visit to the appellees and other details of the relationship between appellant and the appellees need not now be developed. The record shows that Evers finally on July 30, 1956, went to Episcopal Eye, Ear & Throat Hospital complaining of failing vision in the right eye. The hospital report disclosed, apparently in October, a final diagnosis of optic atrophy of that eye. A summary of the records of the George Washington University Hospital indicates that, meanwhile, on August 3, 1956, Evers was admitted with a pathological diagnosis of "papilloma of choroid plexus,” and that a tumor about the size of a large walnut was removed. When the patient was discharged on August 20, 1956, he was “able to read with his left eye with continued loss of vision in his right eye, otherwise improved.”
This case did not require that Friedman make a correct diagnosis--even if by law he had been permitted to make one. The question is whether or not in execution of the duty the appellees owed to Evers, under all the circumstances, they reasonably were required to impart to him the existence of a recognized need that he consult a doctor who might make the correct diagnosis. We cannot know whether or not if appellant had been referred to an ophthalmologist on April 28, 1956, the tumor was then discoverable, or, if so, whether or not surgery at that early date could have led to the saving of the sight of his right eye.15 Whether or not Evers was actually induced
14 2 HARPER & JAMES, TORTS § 18.6 (1956).
15 Cf. Hampton v. Brackin's Jewelry & Optical Co., 186 So. 173, 179, 237 Ala. 202 (1939), where on undisputed by fraudulent misrepresentations to purchase the glasses, however tenuous the claim on the record here, is a matter of proof. The case never reached the point where evidence in such particulars might have been adduced. We therefore are likewise unable to consider whether or not the conduct of the appellees constituted the legal cause of the appellant's ultimate loss of vision in his right eye. Evidence as to all such issues must be developed in a trial whereupon the appellant may prove he is entitled to go to the jury.
It seems indisputably clear, on the record before us, this was no case for summary judgment.
WILBUR K. MILLER, Circuit Judge, dissents.
evidence the disease of the plaintiff's eye was not such that it should have been detected by the optometrist. "And, therefore, he did not breach a possible duty in that connection.”
THE OPTOMETRIC SOCIETY OF THE DISTRICT OF COLUMBIA,
Washington, D.C., March 25, 1966. Memorandum to Dr. Evart F. Warren.
The facts associated with the attached letter, as related to me by Mr. Reynolds and Mr. Jerry Byrd of Neighborhood Legal Services, are these.
James Edward Freeman is a school dropout who was persuaded to reenter school in Fairfax County to complete his education. One day, as I recall in the fall of 1965, Mr. Freeman was simply passing by the New York Jewelry Co. at 7th and G Streets, N.W., and with a friendly hand on his arm was invited into the store for a "free" eye examination. Upon leaving the store, he had signed papers owing some $85.00 for one pair of glasses and another $65.00 for a ring. When he was unable to pay these charges, he was sued by New York Jewelry Co. After a period of great anguish, he informed his instructor, Mr. Reynolds of the circumstances. He in turn got in touch with attorney Byrd. Those two gentlemen then contacted me. I indicated our interest and willingness to assist.
On February 23, 1966, Mr. Byrd met with Dr. Wendell P. Witten who was then on clinic staff duty at the Optometric Center, and myself. Dr. Witten examined the glasses and appraised them as having a value of approximately $25.00 to $30.00 if prescribed in the office of an optometrist in private practice. Mr. Byrd prepared a deposition to that effect which Dr. Witten signed. The conferees also noted that the lenses of these glasses were very simple spheres of such low power that they would not ordinarily be prescribed for any patient. Further, the frames were Japanese and would have been impossible to adjust. We also noted the ring in question as a very inexpensive item with an imitation stone, or was undoubtedly so.
Armed with the deposition, Mr. Byrd went to the Court of General Sessions the following morning, February 25, 1966. The suit against Mr. Freeman was dropped. Additional information can be had from Mr. Reynolds or Mr. Byrd.
HORACE W. White, Jr.,
Thomas JEFFERSON High School,
Alexandria, Va., March 7, 1966. Mr. H. W. WHITE, Jr., Executive Director, Northern Virginia Optometric Society, Alexandria, Va.
DEAR MR. WHITE: I would like to thank you for your help and advice in the case of New York Jewelry Co. v. James Edward Freeman. It was so gracious of you to give of your time in helping me prepare for the case. I would also like to thank Dr. Wendell P. Witten for giving his professional opinion on the eyeglasses in question.
I think that the Optometric Society is a definite asset to your profession and to the general public. Keep up the fine work.
Once again, on behalf of Thomas Jefferson High School, Jim Freeman, and myself, I thank you for your time, consideration, and help. Sincerely yours,
Distributive Education. Mr. Dowdy. Thank you, gentlemen, for your time. Dr. WARREN. Thank you, Mr. Chairman. Mr. Dowdy. The committee stands adjourned. (Whereupon, at 11:35 a.m., the subcommittee adjourned.)
QUOTATIONS FROM VARIOUS STATE SUPREME COURT OPINIONS
RESPECTING VALIDITY OF PROVISIONS OF OPTOMETRY LAWS IN THOSE STATES
(Submitted by Charles M. Babb, Esq., Texas Optometric Association)
Dentistry and optometry both belong to the healing arts, and the reason for regulating one is equally applicable to the other. The following observations might as well have been made of optometry: “* * * Dentistry is a profession having to do with public health, and so is subject to regulation by the State ***." Punk Jewelry Co. v. State, 50 pp. 2d 945 (Ariz. 1935).
There can be little doubt that the general assembly had power to declare optometry a learned profession, and this it has done on two occassions * * *
* What the measure prohibit is employment of an optometrist by one who is not licensed. In other words, a layman may not engage in the profession by employing a licensed optometrist. Melton v. Čarter, 164 Š. W. 2d 453, 455, 457 (Ark. 1942).
CALIFORNIA The error of petitioner herein is that he considers and refers to the science of optometry as the "business" of optometry, and that the license fee of $12 is imposed as a tax for revenue purposes, and that such license fee, being imposed upon a business is limited to the amount necessary for licensing, including reasonable compensation for supervision over the particular industry
There can be no question but that the practice of optometry is more than a business: It is a profession relating to the public health, and as such, is particularly subject to State control.
The regulation of such activity is not for the benefit of the licensee but for the protection of the State * * *
The right to practice a learned profession comes from the State and is held subject to conditions implied by the State and may be taken away for noncompliance with such conditions. Pennington v. Bonelli, 59 P. 2d 448 (Calif. 1938).
CONNECTICUT * the patient who resorts to an optometrist for advice and help is entitled to the same undivided loyalty that he should receive from a physician. Lieberman v. Board of Examiners in Optometry, 130 Conn. 344, 349 (1943).
The Florida board promulgated rules limiting the size and number of signs, prohibiting the display of eyeglasses or eye signs; prescribing the contents of a professional card; prohibiting display advertising or window displays, etc.
In upholding the board's rules, the Supreme Court of Florida said that the power to make rules and regulations not inconsistent with the provisions of the law governing the practice of optometry "involves a very broad discretion. Each and every one of the rules complained of has been examined; and while some of them may be said to explain, expand or expound the statute, we cannot say that they are not contemplated by it or comprehended in the power conferred.”
It is * * * our view that the rules * * * are within the express or implied authority of the board * * * and that they are not only valid but necessary to effectuate the full intent and purpose of the law. Fisher v. Schumacher, 72 So. 2d 804 (Fla. 1954).
The only questions the writs of error present for decision are whether or not the corporate defendant is unlawfully practicing the profession of optometry by employing and paying the defendant Gold, a licensed optometrist, to examine