Evers v. Buxbaum, 13903.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: WILBUR K. MILLER, FAHY and DANAHER, Circuit
• Citation: 253 F.2d 356,102 US App. DC 334
• Parties: Stacy EVERS, Appellant, v. Herbert A. BUXBAUM, t/a Rubin Optical Company, and Dr. Joseph Friedman, Appellees.
• Docket Number: No. 13903.,13903.
• Decision Date: 06 March 1958

102 US App. DC 334, 253 F.2d 356 (1958)

Stacy EVERS, Appellant,
v.
Herbert A. BUXBAUM, t/a Rubin Optical Company, and Dr. Joseph Friedman, Appellees.

No. 13903.

United States Court of Appeals District of Columbia Circuit.

Argued November 13, 1957.

Decided March 6, 1958.

Petition for Rehearing Denied April 1, 1958.

253 F.2d 357

Mr. Ralph F. Berlow, Washington, D. C., with whom Messrs. William T. Hannan, Joseph F. Castiello, and Kent D. Thorup, Washington, D. C., were on the brief, for appellant.

Mr. Harold J. Nussbaum, Washington, D. C., with whom Mr. Nathan M. Lubar, Washington, D. C., was on the brief, for appellee Buxbaum.

Mr. Alfred M. Schwartz, Washington, D. C., for appellee Friedman.

Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.

Petition for Rehearing In Banc Denied April 1, 1958.

DANAHER, Circuit Judge.

When this suit was brought, appellant's eyesight had become seriously impaired, with blindness in the right eye, allegedly due to the fault of the appellees. The complaint charged that the appellees, both inaccurately described as optometrists, were negligent in their treatment of the eye condition for which appellant had consulted them in that they failed "to discover and/or timely advise him of the presence of a tumor." A second count, incorporating the allegations of the first count, additionally charged that appellees had represented that appellant needed eyeglasses, a representation alleged to have been knowingly false. Both appellees answered, refuting appellant's allegations, and pleading separate defenses. Friedman denied he had treated Evers and, in substance, set up that he, as a licensed optometrist, acting only in behalf of the unlicensed Buxbaum, had examined appellant's eyes and reported back the type of lenses required for improving appellant's vision. Buxbaum's answer, in substance, further denied that he practiced optometry, and averred that he had made no representations as to assisting appellant's vision with eyeglasses, and that the glasses he delivered to appellant were made as prescribed by Friedman to reflect what Evers himself represented during Friedman's taking of measurements as improving appellant's "visual acuity to the best possible extent." Both appellees filed motions for summary judgment. The District Court concluded that appellant had no "cause of action" and "accordingly there does not exist any triable issue." Judgments having been entered for the appellees, this appeal followed.

This was not a case for summary judgment, which, the Supreme Court has pointed out, is authorized "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try. Citing cases"¹

The appellees, as moving parties, had the burden under a strict standard of showing the absence of any genuine issue as to all material facts; indeed all inferences of fact from the proofs available must be drawn against the movants and in favor of the appellant here.² Moreover, the movants must establish that they are entitled to their judgments as a matter of law.³

The factual allegations of the complaint, when aided by the answers, the exhibits and such portions of the depositions as have been submitted, spell out a claim for relief which stemmed originally from appellant's visit on April 28, 1956, to the Rubin Optical Company conducted by the appellee Buxbaum, an optician, who had no license to practice optometry. According to the Evers deposition,

253 F.2d 358

appellant then told Buxbaum: "I was having trouble with my eyes and I wanted to get them examined and see if I needed glasses." Buxbaum replied that his "doctor" was on vacation but that he could call a doctor nearby "who would examine my eyes for Buxbaum." Pursuant to telephonic arrangements made by Buxbaum, Evers went as directed to appellee Friedman who maintained a competing optical business nearby. Friedman, a licensed optometrist,⁴ undertook at Buxbaum's request, 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.⁶ we concluded that a corporation in the District of Columbia may lawfully 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."⁷

The District Code denounces as unlawful and as a misdemeanor the practice of optometry without a license.⁸ 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

253 F.2d 359

itself makes a distinction between the optometrist and "persons selling spectacles and (or) eyeglasses * * *."⁹ 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 public 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....