Tunnell v. Otis Elevator Co., 7451

• Citation: 400 S.W.2d 781
• Decision Date: 22 March 1965
• Docket Number: No. 7451,7451
• Parties: Ralph E. TUNNELL et ux., Appellants, v. OTIS ELEVATOR COMPANY et al., Appellees. . Amarillo
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 781

400 S.W.2d 781

Ralph E. TUNNELL et ux., Appellants, v. OTIS ELEVATOR COMPANY et al., Appellees.

No. 7451.

Court of Civil Appeals of Texas.

Amarillo.

March 22, 1965.

Rehearing Denied March 21, 1966.

Huff & Bowers, Lubbock, for appellants.

Crenshaw, Dupree & Milam, Evans, Pharr, Trout & Jones, Lubbock, for appellees.

CHAPMAN, Justice.

This is an appeal by Ralph E. Tunnell and wife, Myrtle L. Tunnell, from a summary judgment granted the Northwest Texas Conference of the Methodist Episcopal Church and from a judgment in a case tried to the jury and after the evidence was completed withdrawn from the jury and the judgment rendered by the court for Otis Elevator for the reason that 'the facts and law, are with Otis Elevator Company.' The defendants were sued jointly by the Tunnells, who alleged personal injury to Mrs. Tunnell in an Otis manufactured automatic operating elevator being operated as equipment in the Methodist Medical Building. The summary judgment and the judgment for the elevator company were rendered as one Final Judgment for the defendants below and against the Tunnells.

The Tunnells will be referred to hereafter as Tunnell or appellant, Otis Elevator Company as Otis, and the Methodist Medical Building as Methodist, the record showing it is owned by the Northwest Texas Conference of the Methodist Episcopal Church.

Methodist insists a summary judgment was rendered for them on November 4, 1963; that it constitutes a final judgment from which no appeal was perfected and that this appeal as to them should be dismissed.

From our view of the case as a whole, the question on the motion to dismiss becomes immaterial and would only unnecessarily extend this opinion to write on the question.

The first attack made on the judgment summarily rendered is that the trial court erred in applying the charitable immunity doctrine.

The record shows Methodist Hospital in Lubbock is operated by a board of trustees duly elected at and by the Annual Conference of the Northwest Texas Conference of Methodist Episcopal Church, which owns both the Methodist Hospital and the Methodist Building; that both are operated and managed by such board, the administration of which hospital and building are under one administrator. Though operated as an adjunct of the hospital and the accounting kept separate from that of the hospital, it still is uncontradicted in the record that it is a non-profit operation of the named church and that if any profit is ever made it will, according to the deposition of the accountant for the institution, 'go into the repair and replacement of facilities and equipment of either that building or the hospital.'

It is also true that offices in the Methodist Building are rented to doctors on the staff of the hospital, but the deposition shows it is 'strictly a functional design that is geared for clinic operation' that such tenants facilitate the hospital operation in that the offices of the doctors are directly connected with hospital floors. The deposition of the hospital accountant shows that plans are projected for hospital facilities in the Methodist Building itself and at that time and at all times 'We try to have located in that building those people which facilitate our hospital operation.'

The motion for summary judgment alleged: 'That as a charitable entity owned and operated by the Northwest Texas Conference of the Methodist Episcopal Church, and operated in conjunction with the Methodist Hospital, said building and religious organization and association are entitled to immunity from any claims asserted herein for plaintiffs.'

Appellants cite authorities from other jurisdictions to justify their contention that the Texas position on charitable immunity is an erroneous position and cites some cases from this State with facts not analogous to our own. They admit this court has neither power nor authority to overrule and restate a proposition of law previously announced by our Supreme Court and then urges this court in effect to announce 'an enlightened and critical opinion' seeking to influence the Supreme Court on the proposition that the charitable immunity doctrine is outmoded. They then state that the State Supreme Court alone has the power to set aside and repudiate the doctrine. We would agree that either that court or the legislature has such power and not an intermediate appellate court.

Our position on the charitable immunity doctrine was announced recently in Watkins v. Southcrest Baptist Church, Tex., 399 S.W.2d 530. We admitted in effect that some opinions from other jurisdictions argue strongly against the doctrine but followed, as we still feel bound to do, our own Supreme Court.

The case relied on so strongly by appellant as to what the rule of law should be in Texas ¹ was taken note of by our Supreme Court in Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749, in discussing the divergence of opinion in our several American jurisdictions, the court saying:

'Some extend absolute immunity, others recognize a limited liability, while a few hold to the doctrine of respondeat superior.'

The court then held:

'We must agree, therefore, with the holding of the Supreme Court of South Carolina in the Vermillion case, ² supra, that no liability exists. As said in that case, 'This rule does not put such charities above the law, for their conduct is subject to the supervision of the court of equity; nor does it deny an injured person a remedy for his wrong. It is merely an exception to the rule of respondeat superior, which is itself based on reasons of public policy. The injured person has his remedy against the actual wrongdoer. It is said, however, that he may be and often is financially irresponsible. But the answer is that the law does not undertake to provide a solvent defendant for every wrong done. There are many cases of wrongful injury not compensated, because the wrongdoer is insolvent. * * * Questions of public policies must be determined upon consideration of what on the whole will best promote the general welfare.'

'Therefore, we think sound public policy demands that charity corporations be held immune from liability for the torts of their agents, in the absence of negligence in employing or keeping the latter, whether the injured party be a beneficiary of the trust or a stranger to it, since the result to the charity would be the same in either case.'

There is no pleading by appellant nor any point presented upon appeal which asserts negligence of Methodist in employing Mr. Fewell, their employee who caused the action of the elevator upon the occasion in question and from which appellants assert Mrs. Tunnell received her injuries. Therefore, that question was not before the trial court in its consideration of the summary judgment.

Appellant contends that the rule in Southern Methodist University v. Clayton, supra, was not intended to be applicable in a case such as this one because Methodist in this case carried public liability insurance. In Baptist Memorial Hospital v. McTighe, Tex.Civ.App., 303 S.W.2d 446 (N.R.E.), the Baptist Memorial Hospital carried indemnity insurance against injuries similar to the one in the instant case. ³

The El Paso Court of Civil Appeals in the case just cited said:

'The appellee caused to be introduced in the absence of the jury, an indemnity insurance policy purporting to protect the defendant from having to pay damages for an accident such as this. We have not found any authority in Texas (although some other courts have made the distinction) where the presence of an insurance policy caused any change in the liability or immunity of a charity institution. We do not feel that there is any escape from the holding and implication of the Clayton case, and we must hold that it is decisive of the case on appeal here. Southern Methodist University v. Clayton, supra; Vermillion v. Woman's College of Due West, supra; * * *.'

Though eleven points were raised by appellant in Baptist Memorial Hospital v. McTighe, supra, the El Paso Court wrote on only one of them; i.e., if recovery could be had against a charitable organization which carried indemnity insurance as in the instant case. The stamp of N.R.E. by the Supreme Court in that case indicates to us that the court is still adhering to the rules announced in Southern Methodist University v. Clayton, supra, and Vermillion v. Woman's College of Due West, supra, even though a charitable institution carries insurance indemnifying against accidents and resultant injuries such as those in the McTighe case and the instant case.

Therefore, under the record before us, we feel we are compelled to sustain that part...