Barbee v. Rogers, B--515

• Decision Date: 28 February 1968
• Docket Number: No. B--515,B--515
• Citation: 425 S.W.2d 342
• Parties: Neal H. BARBEE, Petitioner, v. N. Jay ROGERS and S. J. Rogers d/b/a Texas State Optical, Respondents.
• Court: Texas Supreme Court

Page 342

425 S.W.2d 342

Neal H. BARBEE, Petitioner, v. N. Jay ROGERS and S. J. Rogers d/b/a Texas State Optical, Respondents.

No. B--515.

Supreme Court of Texas.

Feb. 28, 1968.

Paul Regnier, Houston, Orgain, Bell & Tucker, Lawrence L. Germer and Howell Cobb, Beaumont, for petitioner.

King, Sharfstein & Rienstra, John D. Rienstra, Jr., Beaumont, for respondents.

STEAKLEY, Justice.

Petitioner sued N. Jay Rogers and S. J. Rogers, doing business as Texas State Optical, Respondents, and Texas State Optical, Inc., for damages. He alleged that he purchased contact lenses from them which were improperly fitted and that he was given improper prescriptions and instructions for their use. He further alleged that such acts constituted negligence; also, that the defendants represented to him that the lenses would be suitable for his use and benefit and not injurious but they were harmful and injurious and as such constituted a breach of warranty. The case was tried to a jury and judgment was rendered against Respondents upon findings later noticed. A take-nothing judgment was rendered in favor of the defendant, Texas State Optical, Inc., and no complaint of this action is here. The Court of Civil Appeals reversed the judgment of the trial court against Respondents and rendered judgment that Petitioner take nothing against them. 417 S.W.2d 750. We affirm.

The jury found favorably to Petitioner that he sustained an injury to the cornea of his eye following the prescription, fitting and sale to him of contact lenses furnished by Respondents; and that the lenses were not reasonably fit for use upon the surface of his eyes which caused or contributed to his injury. The jury found favorably to Respondents that they did not fail to fulfill representations that the lenses would not be injurious to Petitioner's eyes; and that although the lenses did not properly fit the natural curvature of Petitioner's eyes, which failure was negligence, such was not the proximate cause of his injury. The jury also found that Petitioner was negligent in failing to keep the lenses clean but that such was not a proximate cause of his injury; and that Petitioner did not fail to follow the wearing instructions given him by Respondents. The jury assessed Petitioner's damages in the sum of $10,000.

Petitioner attacks the holding of the intermediate court upon three points of error, the full text of which is copied in the footnote. ¹ These points assert in substance that the court erred in holding that Respondents were not liable upon the theory of strict liability in tort or for breach of a contractual implied warranty of fitness; and that the court erred in recognizing a professional relationship between Petitioner and Respondents. The main thrust of Petitioner's argument is that 'This is a products liability case' in which liability 'on breach of an implied warranty of fitness' is supported under our holding in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.Sup.1967), by the jury findings that (a) the contact lenses were not reasonably fit for use upon the surface of plaintiff's eyes; (b) the contract lenses caused injury or damage to the tissues of his eyes; and (c) such failure of the lenses to be reasonably fit was the proximate cause of the injuries. Petitioner says, 'The simple fact is that defendant manufactured and sold an unfit product, contact lenses, to the plaintiff and breached the warranty of fitness imposed by public policy.' Petitioner also argues under his second point that the traditional common law contractual warranty of fitness applies. The jury found, however, that Respondents did not fail to fulfill representations that the lenses would not be injurious to the eyes of the Petitioner, and we agree with Respondents that the issues found favorably to Petitioner did not submit the theory of an implied contractual warranty. Moreover, Petitioner assumes in this portion of his argument that Respondents were also the manufacturer of the contact lenses; e.g., 'this is a perfect exposition of the 'consumer reliance upon the integrity of the manufacturer' stated in Shamrock Fuel and Oil Sales Co., Inc., v. Tunks,' 416 S.W.2d 779 (Tex.Sup.1967). But the evidence establishes that the contact lenses were manufactured by Texas State Optical, Inc., a separate corporate entity, in whose favor a take-nothing judgment was entered by the trial court, and there is no claim that the corporate entity of the manufacturer should be disregarded. The question is thus narrowed to whether the doctrine of strict liability, which is tortious and not contractual, will be extended to the prescription, fitting and sale of contact lenses under the circumstances here shown.

Respondent, Dr. N. Jay Rogers, testified that he and his brother are licensed optometrists and compose a partnership operating eighty-four offices throughout Texas. They employ approximately one hundred twenty-five licensed optometrists and promote the sale of contact lenses by newspaper, television and radio advertisements. The contact lenses are sold for the same price regardless of the difficulty or the simplicity of the eye problems and the number of subsequent examinations which may be required. The charge is made for the product and not for the time of the optometrist. Respondents warrant to those responding to their advertisements of contact lenses that they will be properly cared for and fitted, subject to the qualification of care and use in accordance with specific instructions.

Petitioner's eyes were examined by a licensed optometrist in one of the offices of Respondents in May, 1959, and contact lenses were prescribed and subsequently fitted for him. They were unsatisfactory to Petitioner, and there followed a series of examinations and corrections by optometrists in the employ of Respondents at offices of Respondents in the Houston area. Petitioner testified that he suffered pain and discomfort when he wore the lenses and that he ceased using them approximately sixteen months later. He subsequently moved to California where he was examined by Dr. Robert E. Christensen, a medical doctor of Ophthalmology. Dr. Christensen testified by deposition that it was his opinion that the contact lenses worn by Petitioner were of a flatter curve than the corneal curve; that he found unusual scarring in Petitioner's eyes and that 'it would be logical to relate the corneal scars to the contact lenses.' A contact lens manufacturer, Jack R. Case, testified that 'in checking the lenses on Mr. Barbee we found that the lenses, in our opinion, would be too large and too thick.'

Article 4552 ² defines the practice of optometry as follows:

'The practice of optometry is defined to be the employment of objective or subjective means, without the use of drugs, for the purpose of ascertaining and measuring the powers of vision of the human eye, and fitting lenses or prisms to correct or remedy any defect or abnormal condition of vision. Nothing herein shall be construed to permit...