Southern Methodist University v. Clayton

• Court: Texas Supreme Court
• Writing for the Court: Brewster
• Citation: Southern Methodist University v. Clayton, 176 S.W.2d 749, 142 Tex. 179 (Tex. 1943)
• Decision Date: 15 December 1943
• Docket Number: No. 8146.,8146.
• Parties: SOUTHERN METHODIST UNIVERSITY v. CLAYTON.

176 S.W.2d 749

SOUTHERN METHODIST UNIVERSITY v. CLAYTON.

No. 8146.

Supreme Court of Texas.

December 15, 1943.

Rehearing Denied January 26, 1944.

Error from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by J. B. Clayton against Southern Methodist University. Judgment for defendant was reversed and the action was remanded for new trial by Court of Civil Appeals, 172 S.W.2d 197, and defendant brings error.

Judgment of Court of Civil Appeals reversed, and judgment of District Court affirmed.

Sawnie R. Aldredge and Julian B. Mastin, both of Dallas, for plaintiff in error.

Harris & Palmer, John C. Harris, and Philip I. Palmer, all of Dallas, for defendant in error.

BREWSTER, Commissioner.

During a football game between the teams of petitioner, Southern Methodist University, and Texas A. & M. College, at Dallas, on November 9, 1940, a temporary bleacher collapsed. This is a suit by respondent, J. B. Clayton, to recover damages for injuries sustained by his wife, who was seated in the bleacher when it fell. After Clayton rested his case the trial court sustained the university's motion for an instructed verdict. That action was reversed by the Court of Civil Appeals and the cause was remanded for a new trial. 172 S.W.2d 197.

There is no dispute as to the material facts. Southern Methodist University is incorporated under the laws of Texas as an institution of higher education. It is owned and maintained by the Methodist Church and is governed by a board of trustees elected by subordinate bodies of the church. It has no capital stock and nobody can receive any pecuniary profit from its operation. In addition to a college of arts and sciences, it conducts schools of theology, law, engineering, music, business and the like. It also has a department of athletics, supervised by a professor of physical education, and every student is required to take some form of physical training. Football is one of them, but it is not self-sustaining. Over a period of fifteen years this department showed a net loss of $55,000 to the university's general fund. Besides moneys received from athletic contests, this general fund is constituted by tuition and fees collected from students and by income realized from gifts and endowments. From it all expenses of the university's operation are paid.

One L. B. Morgan had been employed by the university for about fifteen years with the duty, among others, of supervising the football field. That included the erection of temporary bleachers when it was expected that the permanent stands would not seat the spectators. The stand that fell and injured Mrs. Clayton was finished about five days before the game in question. Morgan directed the work.

Clayton alleged that the university was negligent (1) in permitting this stand to be crowded beyond its normal capacity; (2) in failing sufficiently to brace it; and (3) in constructing it of old and defective material. He alleged, further, that it was negligent in keeping Morgan in its employ, on the theory that he was incompetent. However, during the trial Clayton formally waived this last issue. Hence, the trial court's action in instructing a verdict was a holding that the other three acts of negligence charged, if true, did not render the university liable for Mrs. Clayton's injuries.

Because it is devoted to public education without private gain, the university is a charitable institution, despite the fact that it is under the control of a religious denomination and charges tuition. 14 C.J.S., Charities, p. 444, § 15 a. There is a divergence of opinion in our several American jurisdictions as to the tort liability of such an institution to its beneficiaries or to strangers. Some extend absolute immunity, others recognize a limited liability, while a few hold to the doctrine of respondeat superior. 14 C.J. S., Charities, p. 544, § 75 a. Since the limitation generally is based on the theory that it is better that the injured individual go without his damages than that the assets of the charity be dissipated to pay them, it is sometimes held that liability exists but that it cannot be enforced by levy of execution on property exclusively devoted to charity purposes. Obviously this holding is to permit the injured party to get the benefit of indemnity insurance carried by the charity. O'Connor v. Boulder Colorado Sanitarium Association, 105 Colo. 259, 96 P.2d 835, 133 A.L.R. 819. See 10 Am. Jur., Charities, secs. 140 to 143, inc.; Annotation in 14 A.L.R., beginning at page 572; and President and Directors of Georgetown College v. Hughes, 76 U.S. App.D.C. 123, 130 F.2d 810, for excellent reviews of the various holdings.

It seems definitely established in this state that a charity corporation is liable to an employee for injuries proximately caused by the negligence of its officers, vice principals or agents. Armendarez v. Hotel Dieu, Tex.Civ.App., 145 S.W. 1030; Hotel Dieu v. Armendariz, Tex.Civ.App., 167 S.W. 181; Id., Tex. Com.App., 210 S.W. 518. On the other hand, it is equally well settled that it is not liable for such injuries to beneficiaries of the charity, provided it is not negligent in hiring or keeping the agent whose negligence proximately causes the injuries. The principle...