reproducing a poem by Sam Walter Foss to illustrate the absurdity of blindly following precedent and stating: “The. quaint poetic lines of Sam Walter Foss put in perspective the philosophy of those courts which feel compelled to sacrifice their sense of reason and justice upon the altar of the Golden Calf of precedent.”
How later courts described this case
- reproducing a poem by Sam Walter Foss to illustrate the absurdity of blindly following precedent and stating: “The. quaint poetic lines of Sam Walter Foss put in perspective the philosophy of those courts which feel compelled to sacrifice their sense of reason and justice upon the altar of the Golden Calf of precedent.”
- reproducing a poem by Sam Walter Foss illustrating the dangers of blindly following precedent
- involving a county hospital board
Written by the judges who cited it.
The opinion
ON REHEARING
JONES, Justice.
The earnest contention of appellee’s able counsel that our reversal is grounded on an issue — sovereign immunity — not raised or argued in appellant’s brief deserves our response.
Plaintiff’s complaint contains two counts: one in tort and one in contract. Appellant assigns as error the trial Court’s order granting defendant’s motion for summary judgment as to both counts. Appellant’s fifteen-page brief, except for the final paragraph, is devoted entirely to the validity of the contract count. In view of the posture of our case law — permitting actions ex contractu under certain circumstances to circumvent the immunity defense — such priority of consideration is understandable. The last paragraph of appellant’s brief, however, reads:
“We respectfully submit to the Court that the Circuit Court of Morgan County, Alabama, was in error in granting the motion for summary judgment as to the Hospital Board o.f Morgan County and that this ruling should be reversed and the cause remanded. The time is at hand to clarify the air and to once and for all remove the fallacy of governmental immunity. There is no reason or logic for us to be bound by the theory that the King can do no wrong when we do not have Kings. The theory of governmental immunity has out lived usefulness two hundred years.”
The Court held the contract count invalid. Appellee now says in effect that, since he won on the issue made the central thrust of appellant’s argument, appellant should not be allowed to win on an issue, though properly preserved and assigned, that was so scantly contended for. We know of no such quantitative test. However scant this argument may be, it raised the issue to which the opinion addresses itself.
Opinion corrected and extended. Application for rehearing overruled.
FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.
HEFLIN, C. J., and MERRILL, BLOODWORTH and MADDOX, JJ., dissent.