DISSENTING OPINION
HIGHTOWER, Chief Justice.I respectfully dissent. The implied warranty of suitability for the purpose for which a product is sold is especially applicable where the seller is also the producer or manufacturer of the article. Sugarland Industries, Inc. v. Falco, Tex.Civ.App., 360 S.W.2d 806 (err. ref. n.r.e.). Defendant here not only sold but manufactured the lenses in question. The majority opinion in basing its opinion on the Ohio case of Cox v. Cartwright, 96 Ohio App. 245, 121 N.E.2d 673, appears to attach no importance to such distinction.
All the elements necessary for an implied warranty are present in the case at bar and are fully supported by the evidence: (1) vendor knew of the use to which the contact lenses would be put; (2) vendee relied upon the superior knowledge and skill of vendor; (3) the vendor is also the manufacturer; and (4) the parties are ,⅛ privity of the contract.
Defendant argues that the production of contact lenses requires skill and judgment and that the lenses may not be fit for use. In most of the cases involved in implied warranty, the production of the article to be sold required skill and judgment and in most cases the object will not be fit for use. This appears to be the very reason why an implied warranty is imposed. The need for skill and judgment on the part of-the vendor is an element tending to create rather than negate the existence of an implied warranty.
The duties of an optometrist are specifically limited. Art. 4552, V.A.C.S., provides that an optometrist can: (1) measure the powers of vision of the human eye; and (2) fit lenses to correct a visual defect. The statute specifically prohibits the optometrist from treating the eyes in any manner whatsoever unless he is a licensed physician. Arts. 4552, 4565c and 4565d, V.A.C.S. Such limitations hardly envision the application of the law of malpractice as applied to physicians and dentists.
Moreover, whether the harm to plaintiff was occasioned by defendant’s optometrist or its technicians employed to grind the lenses to the prescription of the optometrist, the law of implied warranty and consequent liability must apply under these facts.
Accordingly, and as a matter of public policy, I would affirm the judgment of the trial court in favor of appellee.