Kahn v. Shaw

I dissent from the judgment because there was no evidence of negligence. Dr. McDuffie was not an optometrist, and did not testify that Dr. Kahn did not exercise skill according to the prevailing methods and practices of optometrists. The whole *Page 569 import of his testimony is that the boy's eyes could not have been fitted with glasses without the use of drugs. I do not know whether this is true or not. That is a much disputed question. If it is true, optometrists should not be licensed to fit glasses for persons whose eyes can not be fitted without drugs. The State of Georgia licenses optometrists to use their skill in fitting glasses. If they do not have the required skill they are not guilty of negligence when their exercise of what skill they have produces injury. There is no evidence that Dr. Kahn was negligent in failing earlier to discover his inability to treat the boy and fit his glasses properly. Dr. McDuffie did not testify that Dr. Kahn was negligent in that he could have fitted the boy's eyes by the optometrical method and did not do so. The majority opinion, in effect, applies the rule of res ipsa loquitur, and I do not think it is applicable in such a case.