Mabry Et Al. v. State Board Examiners

O. D. Mabry under the trade-name of Mabry Optical Company conducts at 84 Forsyth Street in the City of Atlanta a business described as that of a dispensing optician. He sells eye-glasses or spectacles, the lenses of which are ground according to prescriptions furnished to him. The grinding of the lenses and the manufacture of the frames are done for him in New York City. In making sales he sometimes makes measurements of the distance between the customer's eyes to tell how wide the frame must be, and also measures the bridge of the glasses for size. He is a layman, is not licensed to practice optometry or medicine, has never practiced either, has never made an examination of eyes or tested any one's power of vision, and has not adapted or attempted to adapt lenses in aid of defective vision. He employs Alton L. Turner, who is furnished an office at the Forsyth Street address, which he is required to occupy during business hours. His duties are to examine the eyes of such persons as may be sent to him by Mabry or who may for any other reason come to him. When he finds a defect in vision which he thinks can be remedied or improved by eye-glasses, he gives a written prescription for such glasses. This prescription is delivered to Mabry, who endeavors to sell the patient the glasses called for by the prescription. Samples of frames are exhibited to the patient, and measurements of the bridge and the distance between the eyes are made by Mabry and entered on the prescription. If the sale is made, the prescription is sent to the New York manufacturing optician where the lenses are ground and fitted into the frame selected by the patient and returned to Mabry. When received, Turner checks the lens as ground against the prescription, and if found correct the glasses are delivered to the customer; and the price agreed upon, which embraces the cost of the material, examination and prescription, is paid to Mabry. For his services Mabry pays Turner $42.50 per week, which is a fixed charge, and does not vary with the number of eyes examined or prescriptions written. Turner is a duly licensed osteopath, having obtained his Georgia license in 1934. His connection with Mabry began in October, 1939. In making eye examinations he uses some instruments of his own and others furnished by Mabry. Before acquiring his license as an osteopath he completed a course of four years of nine months each, and received a diploma from Kirksville College of Osteopathy and Surgery, of kirksville, Missouri. This is a legally incorporated and reputable college, which requires as prerequisite to a diploma a course of study of at least three terms of nine months each in separate years. In the four-year course given him at Kirksville College Turner was taught as a regular part of that course all subjects taught in medical schools recognized by the American Medical Association, and which lead to the degree of Doctor of Medicine. Under the general head of surgery he was taught and practiced the subject of ophthalmology, which embraced a study of the various diseased processes, symptoms, diagnosis and treatment of the eye, refraction, and use of all modern instruments for the determination of eye conditions. As a part of his course he was taught and learned the use of the ophthalmoscope and the retinoscope. He was also given a course especially devoted to the eye, ear, nose, and throat.