# Watkins v. Southcrest Baptist Church

> Texas Supreme Court · January 5, 1966 · 9 Tex. Sup. Ct. J. 176

URL: https://www.frixlaw.com/law-library/cases/9773972

## Case

- **Full name:** Mary A. WATKINS, Petitioner, v. SOUTHCREST BAPTIST CHURCH, Respondent
- **Court:** Texas Supreme Court
- **Decided:** January 5, 1966
- **Citations:** 9 Tex. Sup. Ct. J. 176; 399 S.W.2d 530; 1966 Tex. LEXIS 378
- **Precedential status:** Published
- **Opinion:** Concurrence by Greenhill
- **Judges:** Norvell, Walker, Greenhill, Calvert, Steakley, Smith
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated by Howle v. Camp Amon Carter, 14 Tex. Sup. Ct. J. 445 (1971).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773972

## Opinion text

GREENHILL, Justice
(concurring).
The Court has correctly stated that in the past the law of this state has been that in the usual case, charitable institutions have enjoyed an immunity from tort liability. It has been also held that the presence or absence of indemnity insurance does not change the rule. Hence these institutions, with justification, have been entitled to rely upon these holdings, and they may or may not have protected themselves with insurance coverage. I therefore concur in the Court’s decision adhering to the precedent which has been set in the past. When problems regarding title to land or contracts, or the necessity for contracts, are involved, precedent is necessarily a highly important factor. Hardware Dealers Mut. Ins. Co. v. Berglund (Tex.Sup.1965), 393 S.W.2d 309 at 315 . This is not to say that a precedent involving liability or contract should never be summarily overruled. But where the matter involved is of the great magnitude as is charitable immunity, it seems to me to be proper to give some warning that the precedent may be reconsidered.
I am impressed with the arguments made that the doctrine of charitable immunities may now be unsound in the light of current conditions, particularly as to some “charities” which now enjoy immunity. Some “charities” are now large business institutions which make substantial charges for their services. It is difficult, for example, to consider a person who pays $20 to $50 per day for a hospital room to be the object of charity and entitled to no protection from negligent acts of the employees of the hospital. Many forceful and persuasive opinions have been written to the effect that the entire doctrine is outmoded or should be modified, generally beginning with President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C., 123 , 130 F.2d 810 (1942), by Justice Rutledge. Some twenty-four states have now rejected the doctrine of charitable tort immunity. 1 The doctrine had its inception in early English cases which have long since been overruled. 2
*536 So while I am of the opinion that the Court has correctly decided this case, I believe that the Court should declare that particularly in cases arising after this case becomes final, it would feel free to re-examine the doctrine. While I ordinarily honor without further question the holdings of the Court, it seems to me that this question is of such great importance that the question should he re-examined. So for whatever it may be worth, and so that people and institutions may be appraised of .the situation, this caveat is here noted.
This procedure was suggested by Cardozo in an address to the New York Bar Association in January 1932 as reported in Levy, Realistic Jurisprudence and Prospective Overruling, 109 U.Pa.L.Rev. 1 at 13 (1960), and also by Robert E. Keeton, Creative Continuity in the Law of Torts, 75 Harv.L. Rev. 463 at 490 (1962). A similar caveat was used by the Supreme Court of Arkansas in Hare v. General Contract Purchase Corp., 220 Ark. 601 , 249 S.W.2d 973 at 977 (1952). This procedure does not go nearly so far as the “Sunburst” doctrine of adhering to precedent for the particular case but dogmatically announcing that the rule will be different hereafter, and stating what the new holding shall be. Great Northern Ry. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358 , 53 S.Ct. 145 , 77 L.Ed. 360 (1932), written by Cardozo. Several states including Illinois, Michigan and Wisconsin have rejected the immunity doctrine under the “Sunburst” doctrine. See Keeton, supra, at page 490 for a list of the cases. See also Note, Charitable Immunity — Contracts, Torts, Rule of Property and Prospective Overruling, 16 Ark.L.Rev. 289 (1962), and Note, 60 Harv.L.Rev. 437 (1947). In Spanel v. Mounds View School District, 264 Minn, 279, 118 N.W.2d 795 (1962), the Minnesota Supreme Court prospectively overrule the immunity of school districts, municipal corporations, and other subdivisions of government whose immunity had been conferred by judicial decision, effective after the adjournment of the next Minnesota legislature. The court in that case pointed out that it had, in a previous opinion, expressed dissatisfaction with the doctrine, had called the matter to the attention of the legislature, and the legislature had wholly ignored the problem. Thus the court, in its former opinion, had given a warning that it felt free to re-examine the doctrine of immunity to school districts and other governmental subdivisions. These cases are not cited as a precedent for what should or should not be ultimately held, but as a precedent for the procedure which should be followed here.
STEAKLEY, J., joined in the concurring opinion.
. The cases are collected and discussed in an annotation, 25 A.L.2d 29 (1952), and in Fisch, Charitable Liability for Tort, 10 Villanova L.Review 71 at 74 (1964). There are some later cases such as Flagiello v. Pennsylvania Hospital (1965), 417 Pa. 486 , 208 A.2d 193 , as to hospitals; and Adkins v. St. Francis Hospital of Charleston, W. Va. (W.Va.Sup.1965), 143 S.E.2d 154 . The doctrine is widely criticized by writers. See, e.g., Prosser, Torts, 1019 et seq. (3d ed. 1964); and articles in 11 Baylor L.Rev. 86 (1959), 16 Southwestern L.J. 689 (1962), and 3 South Texas Law Journal 225 (1958). To the contrary, see Joachim, Why Abolish Stare Decisis?, 45 A.B.A.J. 822 (Aug.1959), discussing cases from states refusing to abrogate the doctrine.
. Mersey Docks v. Gibbs, L.R. 1 H.L. 93 (1866); Foreman v. Mayor of Canterbury, 6 Q.B. 214 (1871); Gilbert v. Corp. of Trinity House, 17 Q.B. 795 (1886).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773972. Public record. Not legal advice.