(dissenting):
I agree that the Supreme Court of Appeals of Virginia would hold that churches are charitable associations which are exempt from tort liability to persons who qualify as beneficiaries of their bounty. I disagree, under the facts pleaded in this case, which, because of its summary disposition, must, for present purposes, be taken as true in the light most favorable to plaintiff, that plaintiff was a beneficiary of defendant’s bounty.
Plaintiff, a citizen of another state, pleaded that she entered the church building “which was then open to the public, for the purpose of viewing the sanctuary and the stained glass windows in the church; that one of the stained glass windows in the church had been installed upside down and thereafter maintained in this condition by the defendant until the present time for the purpose of attracting visitors, such as plaintiff, inside the church building.” There was a further allegation that defendant held the church out to be of historical interest and significance and permitted information concerning the same to be disseminated by the Lexington, Virginia, Visitor’s Information Center.
In an affidavit in response, defendant pleaded the eleemosynary nature of the church, stating, inter alia, that it is a religious society and that when plaintiff entered the church no religious service was being conducted nor was one scheduled. It was alleged that the church performed its function in part for the benefit of students and faculty of Washington & Lee University and Virginia Military Institute, but that “[I]t [the church] is not maintained as a tourist attraction, but is for the religious use and benefit of its members and other people of the community, including students and faculty, as aforesaid.” (emphasis added)
With the district judge, my brothers find that plaintiff partook of religious *385devotion and morality by viewing the physical embellishments of the sanctuary, including the upside down window, and, therefore, brought herself within the mainstream of the church’s spiritual function and service so as to become a beneficiary of its charity. With the district judge, they also venture the dictum that if the church were maintained as an historical shrine, the same rule of immunity would be applicable.
I cannot read plaintiff’s complaint as alleging that she visited the church for any religious purpose. Affording the allegations of the complaint the liberality to which they are entitled, I would read them as saying that plaintiff went to the church to view an historic site and the accoutrements of that site, including the upside down window and other objects of religious art. While the result of plaintiff’s visit may have been to satisfy her aesthetic or historical curiosity, or to widen her aesthetic or historical knowledge, or to realize aesthetic enjoyment, she has nowhere pleaded any religious motive for her visit, nor is such a motive inferable. One who views religious art no more necessarily contributes to his spirituality, morality or religiousness than one who views depictions of battle scenes necessarily contributes to his proclivity to violence. Since the church disavows that its purpose is to maintain a tourist attraction and says that its sole purpose is for the religious use and benefit of its members and other people of the community, I would hold that the pleadings do not establish that plaintiff was a beneficiary of the church’s bounty.
Bianchi v. South Park Presbyterian Church, 123 N.J.L. 325, 8 A.2d 567, 124 A.L.R. 808 (1930), is not in point. There it was concluded that maintenance of a social center where a girl scout troop was permitted to meet was a purpose of the church, albeit incidental to its original purpose; here the purpose of the church was, by the admission of its rector, more strictly limited. In view of defendant’s characterization of its purposes, the dictum is unnecessary and academic.
I would reverse and remand for an evidentiary determination.