LEE OPTICAL OF GEORGIA, INC. v. STATE BOARD OF EXAMINERS IN OPTOMETRY et al.; GOLD v. STATE BOARD OF EXAMINERS IN OPTOMETRY et al., 220 Ga. 204

Candler, Justice. The Georgia State Board of Examiners in Optometry filed a petition in the Superior Court of Floyd County for injunctive relief against Lee Optical of Georgia, Inc., a Georgia corporation, and D. L. Gold, a licensed optometrist.

Its petition as amended alleges that the defendant corporation conducts an optical business in the City of Rome, Georgia; that it employs and pays the defendant Gold to render for it optometric services to its customers at its place of business; that the defendant Gold uses equipment which the defendant corporation furnishes him; that he has been and is rendering optometric services for the corporate defendant; and that the defendant Gold receives no fees from and has no relationship with the corporate defendant’s customers except in virtue of his employment.

Attached to the petition as an exhibit is a copy of the rules and regulations adopted by the petitioner which became effective on April 1, 1963. Besides for process, rule nisi and service, the prayers are that the defendants be temporarily and permanently enjoined from engaging in the practice of optometry contrary to the law regulating the practice of that profession and the rules and regulations adopted pursuant to such law and for general relief.

The defendant corporation answered the petition and at an interlocutory hearing the parties stipulated that the defendant Gold, a duly licensed optometrist who is authorized to practice optometry in the State of Georgia, is employed and paid by the corporate defendant to examine eyes of persons for it but no charge is made to such persons for the service he renders them.

It was also stipulated that the copy of the rules and regulations of the board of examiners in optometry which was attached to the amended petition is a correct copy thereof and that such rules and regulations were in force and effect at all times mentioned in the petition. No other evidence was introduced on the interlocutory hearing and the court temporarily restrained and enjoined the defendant from committing any of the acts complained of in the petition. The exception is to that judgment.

Held: The only questions the writs of error present for decision are whether or not the corporate defendant is unlawfully practicing the profession of optometry by employing and paying the defendant Gold, a licensed optometrist, to examine eyes of persons for it when no charge is made to such persons for the service he renders them, and whether or not the defendant Gold is violating the rules and regulations which the board of examiners in optometry adopted pursuant to

an Act which was passed in 1963 (Ga. L. 1963, p. 214) by accepting employment from the corporate defendant to render such optometric services for it. Argued April 13, 1964 Decided July 13, 1964 Rehearing denied July 27 and August 11, 1964. Matthews, Maddox, Walton & Smith, John W. Maddox, William G. Grant, John W. Dorn, Wright, Walther & Morgan, Clinton J. Morgan, for plaintiffs in error. Eugene Cook, Attorney General, G. Hughel Harrison, Assistant Attorney General, contra. James L. Moore, Jr., Francis Shackelford, Will Ed Smith, Henry P. Eve, Ed G. Barham, H. H. Perry, Jr., Paul M.

Conaway, Trammell Shi, for parties at interest not parties to record. These two questions are fully answered in the affirmative by the unanimous decision which this court rendered on October 10, 1963, in Pearle Optical of Monroeville, Inc. v. State Board of Examiners in Optometry, 219 Ga. 364 (133 SE2d 374); and since the opinion in that case so exhaustively deals with and settles the questions presently before us for review adversely to the contentions of the plaintiffs in error, no further discussion of them is here deemed necessary, and the motion to overrule that case, after being fully considered, is denied.

A ruling different from the one here made is not required by the decision this court rendered on December 4, 1936, in Georgia State Board of Examiners in Optometry v. Friedman’s Jewelers, 183 Ga. 669 (189 SE 238); and this is true for the reason that the law respecting optometry has been materially changed since that case was decided, and optometry is now by statute expressly declared to be a learned profession and not merely a mechanical art as it was classified and deemed to be when Friedman’s case was decided. See Ga. L. 1956, p. 94, as amended by Ga. L. 1963, p. 214. Judgment affirmed.

All the Justices concur, except Duckworth, C. J., who dissents.