Texas State Optical, Inc. v. Barbee, 6883

• Decision Date: 15 June 1967
• Docket Number: No. 6883,6883
• Citation: 417 S.W.2d 750
• Parties: TEXAS STATE OPTICAL, INC., Appellant, v. Neal H. BARBEE, Appellee. . Beaumont
• Court: Texas Court of Appeals

Page 750

417 S.W.2d 750

TEXAS STATE OPTICAL, INC., Appellant, v. Neal H. BARBEE, Appellee.

No. 6883.

Court of Civil Appeals of Texas.

Beaumont.

June 15, 1967.

King, Sharfstein & Rienstra, Beaumont, for appellant.

Orgain, Bell & Tucker, Beaumont, Paul P. Regnier, Houston, for appellee.

STEPHENSON, Justice.

This is an action for damages based upon both negligence and breach of warranty. Plaintiff alleged that his eyes were damaged because defendant improperly fitted him with contact lenses. Trial was by jury and judgment was rendered for plaintiff upon jury findings that defendant breached the implied warranty that such contact lenses were reasonably fit for the use intended. The parties will be referred to here as they were in the trial court.

The jury findings in this case are not easily reconciled. It was found: That the contact lenses furnished by defendant to plaintiff, during the year 1959, were not reasonably fit for use upon the surface of plaintiff's eyes, and this caused or contributed to cause injury or damage to the plaintiff's eyes, and was a proximate cause of his injuries. That defendant represented to plaintiff that any contact lenses fitted by it would not be injurious to his eyes, upon which he relied, but that defendant did not fail to fulfill such representation. That the lenses furnished plaintiff by defendant did not properly fit the curvature of his eyes, which was negligence, but not a proximate cause of plaintiff's injuries. That plaintiff failed to keep such lenses clean, which was negligence but not a proximate cause of his injuries. That plaintiff did not fail to follow the wearing instructions given him by defendant. That $10,000.00 would compensate plaintiff for the damage sustained by him as a result of the use of the contact lenses furnished him by defendant.

Defendant has a point of error that the trial court should have disregarded the finding of the jury as to the implied warranty and should have rendered judgment for defendant because the evidence shows as a matter of law that defendant was furnishing a professional service and not a mere chattel. It is argued that neither the law as to implied contractual warranty nor the doctrine of implied warranty because of public policy as expressed by the Supreme Court of Texas in Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, has application to the facts of this present case. The plaintiff is seeking to hold the defendant liable under the alternate theory of breach of implied warranty that contact lenses sold plaintiff were reasonably fit for the use intended. The jury having found against plaintiff on the theory of breach of the express warranty to the same effect, by finding that even though such express warranty was made that defendant did not fail to fulfill such representation. The jury also having found against plaintiff on the malpractice theory by finding that even though defendant did not properly fit the curvature of plaintiff's eyes, and that such was negligence, that such failure was not a proximate cause of plaintiff's injuries.

As far as we can discover this is a case of first impression. We have been cited no cases in which this precise question has been raised. In all of the cases cited to us in support of the contention made by plaintiff only a completed product was involved, and none of the cases dealt with both a professional service and a product. There is one out-of-state case which indirectly passes upon this point. In Cox v. Cartwright, 96 Ohio App. 245, 121 N.E.2d 673 (1953), suit was brought against a dentist on the ground that the partial plate furnished plaintiff and fit into her mouth did not fit and therefore was not fit for the purpose for which it was made and sold to her. The court held that the action was barred by the one year statute of limitation applying to 'malpractice' and not the six year statute of limitation applying to contracts not in writing, express or implied. Plaintiff contended that her action was one for breach of contract and breach of implied warranty of fitness of the plate for which it was made and sold. The court wrote in its opinion that the practice of dentistry is regulated by statute, and high standards of qualification govern the licensing of the practitioner. It was stated that when the dentist contracted with his patient to...