Hampton v. Brackin's Jewelry & Optical Co.

• Decision Date: 12 January 1939
• Docket Number: 6 Div. 265.
• Citation: 186 So. 173,237 Ala. 212
• Parties: HAMPTON v BRACKINS'S JEWELRY & OPTICAL CO., INC.
• Court: Alabama Supreme Court

186 So. 173

237 Ala. 212

HAMPTON v BRACKINS'S JEWELRY & OPTICAL CO., INC.

6 Div. 265.

Supreme Court of Alabama

January 12, 1939

Rehearing Denied Feb. 9, 1939.

Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler Judge.

Action by Priscilla Hampton against Brackin's Jewelry & Optical Company, Inc., for damages for injury to eyes proximately caused by alleged negligent and unskillful conduct of defendant's optometrist. From a judgment for defendant plaintiff appeals.

Affirmed.

Hugh A Locke and Frank M. James, both of Birmingham, for appellant.

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellee.

KNIGHT Justice.

Suit by plaintiff, appellant here, for damages sustained by her from the loss of one of her eyes, and the impairment of the vision of the other, due as the proximate result of the alleged negligence of the defendant, its agents or servants, in rendering optometrical service for plaintiff.

As originally filed, the complaint consisted of two counts, but thereafter two additional counts were added. Demurrer was sustained to count 2, and the case went to the jury on counts 1, 3 and 4.

Along with the Brackin's Jewelry & Optical Company, Inc., the plaintiff made P. H. Tyler, the Company's Optometrist, a co-defendant, but, before the case was given to the jury, the individual defendant was stricken, thus leaving the corporation as the sole defendant.

In count 1 the plaintiff claimed that her injuries were proximately caused by the negligent and unskillful conduct of defendant's optometrist "in and about rendering the optometrical service," which, it is alleged, the defendant had undertaken for a reward to perform for plaintiff.

Count 3 proceeds upon the theory that the plaintiff was suffering from a disease of the eye, which could not be remedied by the application of glasses, or mechanical treatment, but which could have been remedied or cured by medical treatment, but that nevertheless the defendant's optometrist, after an examination of plaintiff's eyes, fitted plaintiff with glasses, and represented to her that the glasses would cure the trouble. That by defendant's action and representation, the plaintiff was prevented from securing treatment by a doctor or specialist, and that by reason of the delay in securing medical treatment plaintiff lost the sight of one of her eyes, which could have been saved by a specialist, and deterioration of the sight of the other eye could have been stopped.

The fourth count proceeds upon practically the same theory.

There was no averment, in any of the counts, of a failure on the part of the defendant to exercise reasonable care and diligence in the selection of its optometrist.

The attorney for the appellant in his brief, under the caption of "Statement of Facts," has undertaken to set out the evidence so far as necessary to properly present for review the errors and exceptions relied on by appellant for a reversal of this cause. We here excerpt same.

"The plaintiff, Priscilla Hampton, went to the defendant's place of business in Birmingham, Jefferson County, Alabama, Brackin's Jewelry & Optical Company, Inc., a corporation, on or about the 17th day of May, 1935, for the purpose of having an examination made to determine whether or not she needed glasses (Tr. p. 42). Prior to this date the plaintiff had been suffering with an ailment of her eyes. They would hurt her when she tried to sew or read. She saw the defendant's ad in a Birmingham newspaper, to the effect that it had an optometrist and was open to optometrical patients. She made the trip to defendant's place of business, as mentioned above. On or about the 17th day of May, 1935, when she was in defendant's place of business, she talked with Dr. P. H. Tyler, who was the defendant's optometrist and waited on its optometrical patients. He examined her eyes and prescribed glasses for the cure of her ailment. Plaintiff then agreed to pay seventeen dollars and fifty cents for the services and glasses, with the amount of three dollars being paid down and a payment each week thereafter. (Tr. p. 43). She was given a little brown receipt book, which was to be presented to the defendant each time she made a payment in order that the payment might be marked in the book. Through some error this book as an exhibit has been lost and cannot be found. Its contents are therefore not set forth in the record. However, its existence does not have a bearing upon appellant's contention in this case.

"About three days after the first visit plaintiff went back to the defendant's place of business to receive her glasses (Tr. p. 43). After receiving the glasses she attempted to wear them but they seemed to hurt her eyes. About a week later she went back to defendant's place of business to have Dr. Tyler check over the glasses and her eyes. According to her statement Dr. Tyler informed her that the glasses would remedy her ailment when she became used to wearing them. Plaintiff continued to wear the glasses, but from time to time between May 17, 1935 and November 2, 1935, she went back to defendant's place of business and had her eyes and glasses checked. According to plaintiff's statement each time she went back to defendant's place of business, she talked with Dr. Tyler, and each time he insisted upon her continuing to wear the glasses. These facts are disputed by Dr. Tyler.

"On November 2, 1935, plaintiff went back to defendant's place of business and again talked with Dr. Tyler and complained to him that she could not see out of one of her eyes. On this occasion Dr. Tyler made an examination and discovered that the sight of her right eye was completely gone, and advised her at this time to see a physician. She then saw a physician and was informed that she was suffering from glaucoma which had caused a detached retina of her right eye and was at that time affecting her left eye. Subsequent thereto plaintiff had to undergo an operation to have her right eye removed, and her left eye treated in order to save it."

The evidence showed, without conflict, that the said P. H. Tyler was a duly licensed optometrist, of many years' experience, and there was no evidence in the case showing, or tending to show, a failure on the part of the defendant to exercise reasonable care and diligence in the selection of its optometrist.

The court, at the instance of the defendant, gave a number of written charges, which the appellant insists were erroneous. However, the court refused the general charge requested by the defendant as to each of the three counts separately.

There were verdict and judgment for the defendant. From the judgment the present appeal is prosecuted by the plaintiff.

It is apparent that the case, after the defendant's demurrers had been overruled, was tried upon the theory that the relationship of master and servant existed between the appellant and its optometrist, P.

H. Tyler, and, therefore, that the doctrine of respondeat superior applied.

A proper solution of the question involved on this appeal requires a determination of whether the relationship of master and servant did in fact and law exist between the said P. H. Tyler and Brackin's Jewelry & Optical Company, Inc., at the time the plaintiff had the said Tyler to examine her eyes and fit her with glasses. If no such relationship existed, then of course the doctrine of respondeat superior would not apply in the case.

In 1919, the Legislature of Alabama, following similar legislation in other states, undertook to legislate upon the subject of optometry, and to define optometry, to regulate the practice, and to prescribe qualifications for those who would engage in the practice; to provide for the examination of applicants by a Board of Optometry to be appointed by the Governor; and to punish violations of the provisions of the Act.

Section 1 of the Act, Laws 1919, p. 742, now Section 2873 of the Code, provides: "The practice of optometry is defined to be the examination of the human eye for the purpose of ascertaining any departure from the normal, measuring its functional powers and adopting mechanical means for the aid thereof."

Section 3 of the Act, now Section 2875 of the Code, provides for the appointment of a Board of Optometry.

Section 9 of the Act, now Section 2880 of the Code, provides, inter alia: "Every person desiring to commence the practice of optometry in this state, except as otherwise provided, shall take the standard examination provided in this article, and fulfill the other requirements as herein provided. *** Such standard examination shall consist of tests in practical, theoretical and physiological optics, in theoretical and practical optometry and in the anatomy and physiology of the eye and in pathology as applied to optometry. Such standard examination shall not be out of keeping with the established teachings and adopted text books of recognized schools of optometry."

Section 14 of said Act, now Section 2885 of the Code, provides for the issuance of license to such applicants as shall pass the standard examination, etc.

Section 2890 of the Code provides: "Nothing in this article shall be construed as authorizing any optometrist to administer drugs in any form, to practice or claim to practice, medicine, or surgery in any sense, or to use any title or appellation intended or calculated to indicate the practice of medicine or surgery."

The statute also provides for the suspension or revoking of an optometrist's license for certain enumerated causes, among them, unprofessional conduct and gross incompetency.

Section 2893 of the Code provides: "Nothing in this article shall be so construed as to prevent any person, firm, or corporation from owning or operating a store or business...