¶1(specially concurring) — I concur but I deem it desirable to file this special concurrence lest my position and *974perhaps that of this court be misunderstood or. our holding misconstrued. As pointed out in the foregoing opinion one narrow question is considered on this appeal, i.e., whether plaintiff pleads negligence constituting nonfeasance or misfeasance. The opinion holds as against defendant Sheriff A. J. Murphy plaintiff pleads misfeasance. As such it brings plaintiff’s claim within one of the many exceptions to the court-made doctrine of governmental immunity from liability for torts.
¶2In recent years much has been written by legal scholars criticizing this doctrine. It has been abrogated by many other courts. All seem to agree the concept originated with Russell v. The Men of Devon, 100 Eng. Rep. 359, 2 T.R. 667 (1788) and came to this country as English common law which the American courts have continued to follow although the English courts soon after that decision ceased to follow the rule.
¶3In Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, 25, 163 N.E.2d 89, 96 (1959) the Illinois court said: “We conclude that the rule of school district tort immunity is unjust, unsupported by any valid reason, and has no rightful place in modern day society.”
¶4In Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 213, 359 P.2d 457, 458 (1961) the court said: “After a reevaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust.”
¶5In Williams v. City of Detroit, 364 Mich. 231, 262, 111 N.W. 2d 1, 26 (1961) in overruling the doctrine of governmental immunity for injuries received in a building used solely for governmental purposes the court said: “We see no legal, practical or moral justification for continuation of the court-decreed doctrine of governmental immunity from such actions.”
¶6On June 5, 1962, in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, 625, Wisconsin abrogated the doctrine. The opinion reviews criticism of the rule of tort immunity by other courts and several law review and text writers. In answer to the contention a change should only be made by the legislature the Wisconsin court quoted from Hargrove v. Cocoa Beach (1957 Fla.), 96 So.2d 130, 132, 60 A. L. R.2d 1193, “ ‘The courts should *975be alive to the demands of justice. We can see no necessity for insisting on legislative action in a matter which the courts themselves originated.’ ”
¶7In a recent decision (December 14, 1962) Minnesota also rejected the doctrine of immunity. In Spanel v. Mounds View School District No. 621, Minn., 118 N.W.2d 795, 802, 803, that court said:
“Our consideration of the origins of tort immunity persuade us that its genesis was accidental and was characterized by expediency, and that its continuation has stemmed from inertia. The development of governmental liability for proprietary functions was an acknowledgment that the original rule was unduly restrictive, and reflected an uneasiness in the corporate conscience. No student of the law has suggested any explanation for the arbitrary assumption of legal responsibility for negligence in the maintenance of municipal streets and sidewalks and contemporaneously a rigid adherence to immunity with respect to those maintained by towns and counties. It has been argued on behalf of defendants that if immunity is abolished public schools will be deluged with claims for injuries resulting from inadequate supervision, from frostbite while waiting for buses, from blows struck by other children, from, forbidden and mischievous activities impulsively and foolishly inspired, and from a host of other causes. Schoolchildren have a special status in the eyes of the law, and in view of the compulsory attendance statute deserve more than ordinary protection. Operating an educational system has been described as one of the nation’s biggest businesses. The fact that subdivisions of government now enjoy no immunity in a number of areas of activity has not noticeably circumscribed their usefulness or rendered them insolvent.
“Nor have our privately endowed schools and colleges been forced to close their doors or curtail their academic and extracurricular programs because the law has imposed on them liability for the negligence of their employees in dealing with students and the public. Whatever may have been the economy hi the time of ‘Men of Devon’, it is absurd to say that school districts cannot today expeditiously plan for and dispose of tort claims based on the doctrine of respondeat superior.”
¶8*976With such a wide trend established by these and other decisions those who rely on immunity as a defense must realize our court-made doctrine of governmental immunity may be subjected to a reexamination in the near future. My concurrence in the present opinion is based on the narrow issue decided. A reevaluation of the entire immunity doctrine can wait until the question is properly presented.