*1 STEPHENSON, Justice. INC., OPTICAL, TEXAS STATE damages an action for upon both and breach of BARBEE, Appellee. H. Neal alleged that his damaged improper- were because defendant ly fitted him with contact lenses. Trial Appeals of Texas. by jury was rendered Beaumont. upon jury findings that de- fendant breached the fit for use intended. be re- ferred to here were in the trial court. jury findings not
easily
It
reconciled.
was found: That the
by
lenses furnished
plaintiff, during
were not
reasonably fit for use
the surface of
this caused or con-
injury
damage
tributed to cause
proximate
eyes,
was a
cause
rep-
injuries.
That
contact lenses
resented to
injurious to his
fitted
it would not be
relied,
eyes, upon
but that de-
repre-
fendant did
plain-
That the
furnished
sentation.
properly
defendant did
negli-
eyes,
which was
curvature
plain-
gence,
but not a
cause
failed to
That
tiff’s
negli-
clean,
keep
which was
of his in-
gence
but not a
to fol-
juries.
not fail
That
^
given
him
wearing instructions
low the
$10,000.00
com-
That
defendant.
damage
pensate plaintiff
sustained
of the contact
him as
result of
him defendant.
lenses furnished
point
error that the
.has
disregarded
have
trial court should
as to
judg-
should have
the evidence
for defendant because
ment
that defendant
of law
shows as a matter
Rienstra, Beaumont,
King, Sharfstein &
furnishing
service
appellant.
nei-
argued
It
mere chattel.
not a
contractual
the law as
Beaumont,
ther
Tucker,
&
Orgain, Bell
Paul
doctrine
nor
Houston,
appellee.
Regnier,
P.
*2
when the dentist contracted with his
public policy as ex-
that
of
because
provide
in
teeth
to
patient
of
to extract her
and
pressed by
Supreme Court
Texas
the
denture,
engaged
with
was
in the
Sons,
139 her
a
he
Capps,
E. Decker &
Jacob
1479,
if
to
practice
dentistry,
of
he failed
609,
828, 142 A.L.R.
Tex.
skill,
average degree
care
exercise the
of
this
has
to the
of
facts
the
diligence,
exercised members of
the
plaintiff
case. The
is
to hold
seeking
theory
profession,
guilty
of the tort
same
was
defendant liable
the alternate
under
significant
malpractice.
of
statement
One
of breach of
that contact
opinion
only a strained
in this
was that
plaintiff
lenses sold
professional relationship be
view of the
having
jury
the use intended. The
found
patient
tween the dentist
could
against plaintiff
theory
breach of
on the
of
category
in
of a sales
class
dentist
express
effect,
to the same
man of false teeth.
finding
though
express
that even
war-
ranty was made that
Likewise,
practice
optometry
of
is a
representation.
jury
The
profession
governed
in
State
Texas
having
found against plaintiff on the
through
Articles 4552
statute.
4566—
malpractice theory by
that
even
optometrist in
The
Vernon’s Ann.Civ.St.
though defendant did not properly fit the
defendant,
duly
case,
this
was
curvature of
and that such
state,
practice in this
licensed to
was
negligence,
was
that such failure was
anot
practice
examining
engaged in such
while
lenses,
plaintiff’s eyes, prescribing the
fitting
then
with such lenses.
As far we
can discover this is a case
only testimony in this
record as
first impression.
We have been cited
as follows:
unfitness of
lenses was
no
precise
cases in
question
which this
has
the lens
Plaintiff
testified that
wasn’t
been
In
raised.
all of the cases cited
us
to
Dr.
testified
right.
Christensen
curved
support
in
of the
by plain
contention made
in
the contact lenses were
only completed
involved,
a
was
flatter curve
the corneal curve
than
and none of the cases dealt
with both
poorly.
and that
lenses fit
Case
Mr.
professional
product.
service and a
There
large
testified that
lenses were too
is one
indirectly
out-of-state case which
suggestion
thick. There
no
too
passes upon
point.
this
In Cox v. Cart
record that
lenses were manufactured
wright, 96
App. 245,
patient specifically prohibits could class the as a statute from salesman of lenses. treating manner whatsoever unless he is a licensed Reversed physician. 4565d, Arts. 4565c and nothing. take *3 hardly V.A.C.S. Such limitations envision malpractice of the law of DISSENTING OPINION applied physicians as and dentists. Moreover, the harm to plaintiff whether HIGHTOWER, Chief Justice. was occasioned defendant’s respectfully implied I dissent. technicians to grind its suitability warranty purpose prescription the optome- lenses to ap especially sold is trist, the law of pro plicable is also the where seller consequent liability apply must under these Sug ducer or manufacturer the article. facts. Industries, Falco, arland Tex.Civ. Accordingly, public a matter App., n.r.e.). De (err. ref. policy, I judgment would affirm the fendant here not sold but manufac trial of appellee. court in favor question. The majority tured lenses basing on the Ohio App. case Cox v.
245, 121 appears to attach no N.E.2d
importance to distinction. necessary im-
All for an the elements at are fully supported
bar and are knew of (1) vendor evidence: GILDER, Aubrey Lee put; (2) which the knowledge superior vendee relied COMPANY, ALLSTATE INSURANCE vendor; (3) the vendor is skill of Appellee. manufacturer; (4) are , n privity of the contract. Appeals of Texas. argues production Antonio. San requires judgment skill use. may not be and that the 1967. In most the cases involved July 26, Rehearing Denied production the article to warranty, required judgment skill be sold object not be fit for
most cases very reason appears be the
use. imposed. The
why an part of-
need skill tending to create element
the vendor is an im- an negate
rather than existence
plied duties 4552, V.A.C.S., Art.
specifically limited. (1) optometrist can: meas-
provides eye; the human of vision of powers
ure the visual defect. (2) to correct a fit lenses