Banker v. McLaughlin

208 S.W.2d 843, 146 Tex. 434, 8 A.L.R. 2d 1231, 1948 Tex. LEXIS 381

• Court: Texas Supreme Court
• Decided: February 4, 1948
• Docket: No. A-1272.
• Status: Published

Opinions

Mr. Justice Taylor

delivered the opinion of the Court.

James McLaughlin brought this suit against H. F. Banker to recover damages for the death of his minor son (five years and ten months old). The trial court awarded judgment in plaintiff’s favor on the jury’s verdict for $15,200.00. The Court of Civil Appeals, under the view that the award was excessive, caused a remittitur to be filed which reduced the judgment to $6,000.00. 200 S. W. (2d) 699. The case is here on Mr. Banker’s application for the writ.

The child met his death on June 19, 1945, by drowning in a large hole, or pit, of water on Forest Park Subdivision, a home-site addition which Mr. Banker, the owner, at that time and since, was in the process of developing and marketing, his-agent, C. O. Dumb assisting him in selling the homesites “to the general public.” The subdivision is a 60-acre tract of land ■ located a few miles from the city of Orange, platted into an addition of small homesites."

Plaintiff brought the suit, alleging the ownership of the subdivision by Mr. Banker, the digging of the hole by the owner which, as plaintiff alleged, made the spot (when the hole filled with water) especially attractive to children, and dangerous; and that it attracted to it the child, James McLaughlin, Jr. He alleged the owner’s negeligence in creating on his premises

(without warning devices or protective measures of any character) such dangerous condition where he knew or should have known that children played.

The owner answered by general denial, and further by special answer that the child was neither a licensee nor an invitee but was a trespasser, and that the drowning was an accident occasioned by no fault of his. Defendant also alleged contributory negligence on the part of both the father and the child. The more specific defensive allegations were to the effect that the pool of water was not different from any other, and held no hidden danger; that the child was negligent in entering it, “the water in itself being sufficient notice to him not to enter”; that the child was negligent in that he had been warned by other children that he was too small to swim there”; that the father “was negligent in allowing his child of that age to wander about the neighborhood unattended” and “in not keeping the child at home”; and “in not keeping the child away from the pool of water; and “in not warning the child of the dangers * *

The trial court submitted to the jury twenty special issues all of which were answered in plaintiff’s favor. The pertinent findings were to the effect that the premises (while especially attractive to children) were dangerous to children, such as James McLaughlin, Jr.; that children of tender years, as defendant knew or should have known, played about and swam in the pit; that defendant was negligent in failing to inclose it prior to June 19, 1945, and in failing to fill it up, or drain it, within a reasonable time; and that these acts of negligence were proximate causes, respectively, of the child’s death; and that plaintiff was not guilty of contributory negeligence in not keeping the child away from the pool.

Petitioner’s basic contention throughout was, as aptly expressed in Mr. Banker’s second amended answer to plaintiff’s petition:

“* * * that plaintiff’s son wa§ neither a licensee nor an in-invitee but that he was a trespasser, and that the defendant would be indebted to plaintiff only for damages wilfully or intentionally caused * * The points of error under which he urges this contention in his application for the writ are that the Court of Civil Appeals erred (1) in holding that the evidence raised any issue of liability on the part of petitioner; (2) in holding that the verdict of the jury was sustained by the evidence; (3) in holding that the trial court did not err in overruling petitioner’s motion for judgment non obstante; (4) that the court erred in stating in its opinion that the conditions surrounding the hole were such as to make it unusually attractive to small children and did attract James McLaughlin, Jr., and cause his death; (5) in stating that the owner permitted an unguarded, unused and abandoned pit of water, deep and dangerous, in no manner useful to him, to remain on his premises in the midst of a group of families which contained many small children; (6) in stating that the matter of inclosing or draining or filling the hole would have been accomplished with small trouble or expense without impairment of the use of the property by the owner; and (7) that children were accustomed to playing about this hole, and (8) that it was not used for any purpose.

The contentions made under the foregoing points [all except (1) and (3) ] merely weigh in the scales of preponderance the testimony adduced by petitioner against that adduced by respondent. Also, the contentions, as stated, fail to accord (as they should) to the testimony adduced by respondent the more favorable consideration, and fail to recognize that the findings are in accord with a judgment in respondent’s favor. The contentions, to obviate unnecessary repetition, will be considered jointly and the following all-inclusive excerpt from the opinion of the Court of Civil Appeals, together with additional items of evidence set out below, will suffice as a basis for such consideration :

“According to the evidence and finding of the jury, the appellant permitted an unguarded and unusued and abandoned pit of water, deep and dangerous, in no manner useful to him or to any one else, to remain on his- premises in the midst of a group of families which contained many small children. The conditions and surroundings of the pit were such as to make it unusually attractive to small children for use as a swimming hole and did actually attract James McLaughlin, Jr., and caused his death. The matter of enclosing or draining or filling such pit could have been accomplished with small trouble or expense without any impairment of the use of the property on the part of the appellant.” (Emphasis ours).

At the time the child was drowned about 50 families (4fi of which had small children) were living in Forest Park Subdivision ; and numerous children were living in contiguous group settlements. In response to plaintiff’s written request Mr. Bank er filed, in addition to admission of ownership and that the child was drowned June 19, 1945, in the pit or hole, the following admissions:

“Defendant * * * does admit that prior to June 19, 1945, some people had bought lots in this subdivision, none of which were located in the immediate vicinity of the pool of water * * *; but does not admit * * * the depth of the water; because it was unknown to the defendant as to the exact depth of the pool at that time. * * * That no warning sign or devices were placed in or near such pit or hole to warn persons of its presence. That H. F. Banker took no precautions' whatsoever to prevent children of immature years from playing about or swimming in said pit or hole. That H. F. Banker’s business in connection with the Forest Park Subdivision was to sell lots and homesites therein and in connection therewith he encouraged and invited members of the public to come upon said premises and inspect the same with the vieto of selling said members of the public residential sites and lots in said subdivision.” (Emphasis and noted omissions ours).

Under the plan of marketing, the lots (mostly with 50 ft. frontage) were being sold in pairs as homesites. The plat of the addition in evidence does not designate the extent of development at the time of the child’s death, nor all of the homes in the addition where the families were living at that time. It does show that the addition contained 125 small homesites on the 60 acres, without any reservation for park or other recreational purposes. Mr. Banker testified that his plan was to subdivide this tract into homesites and sell them to the general public; and “to build streets or roads” on it, which he did “prior to June 19, 1945 * * * and since also”; and his “best estimate” was that at that time “everything was sold that faced on “the old Ferry Road” (about 2000 feet in length along the west side of his addition) ; that the closest house to the pool he had sold up to the time of the trial was “about 150 or 200 feet.” The pool is located on the east side of Lot 10 of Block 7. Mr. McLaughlin’s home (about 200 yards distant) is west of the pit on the back of Lots 15 and 16, Block 1, a small two-room house, the second purchased after Mr. Banker began marketing the homesites. The general surroundings about the pool from the standpoint of the record are described by the following bits of testimony of witnesses who saw them: As indicated by the name (Forest Park) the addition was a wooded area. One could “get to it (the pool) without any trouble”; about the pit “there was quite, a bit * * * vegetation, and quite a bit of grass”; that there was a truck “road or trail” out there; people went “back in there to have picnics”; it was “open” there, “all except some small bushes and grass”; about “the scene of this pit” there were “small bushes, where the trucks ran over them and beat them down”; there were “no trees” right at the hole or “around it”; in the “spring and summer” there would be “wild flowers and things like that growing there.” Defendant himself testified that the pool was accessible to those located where plaintiff was “if they wanted to wade through grass and weeds and brush.”

The waterhole itself is designated on the plat. The bank “down to the water * * * was staight off, then it had a sharp incline to the bottom”; the bank “was pretty slanting, and whenever I stepped off in there I slid on to the bottom; it (the water) came up to my chin”; the water was “well over the head of a child five or six years old”; when I (one of the searchers for the child) “got there it (the pool) was full of water”; were no outlets to it,” however; “the banks were a straight off drop.”

The utility of the pool to the owner was negligible after he ceased excavating there for dirt for street grading purposes. His testimony was that the pool was of “no further use” except that “it remained there for the future”; that it would be there as a reservoir for persons “who might purchase the adjoining land”; that it had never “been used for irrigation”; that “I had nothing to irrigate.” He had no cattle or other stock to water there. When asked if he “wanted it for water at the time he built it” his reply was, — “I never had occasion to use it”; and that he “let it remain full of water (that period was “eight or nine months”).

Mr. Banker’s own testimony indicates also that the expense necessary to be incurred, if any, to eliminate the danger would have been .small, if not trivial. As indicated by his filed admissions, he did not endeavor to eliminate the dangerous condition he had created; nor did he erect any warning devices, or any “keep out” signs at the pool, or any “keep off” signs on the premises in its immediate vicinity. He testified that there was a “drain ditch on the property” close by. When asked about the course of this ditch through the block on which the pool' was located, on the east edge of the block, he replied: “It goes right near by, so that a person by manuvering a few shovels, full of dirt can drain off the surplus water, or by blocking it, can hold it.” The drain ditch was there, he said, on June 19, 1945, the date of the drowning.

While there was substantial proof of the inherent attractiveness of the place we, under our view of the case as properly one of negligence, are concerned primarily with the dangerous condition created by petitioner on his open premises and the fact that the dangerous features of the condition could have been eliminated at small expense without interfering with the owner’s marketing of the homesites. The element of attraction is important only in so far as it may mean that the presence of children was to be anticipated.

The excavation was from 5 to 8 feet deep “at the very shallowest place.” (Emphasis ours). It appears that soon after its use as a dirt supply had been discontinued it filled up with water so that its depth would not be ascertained by children unless (contrary to the nature of children) they are of such mature years and experience that they would measure the depth (as the average adult who could not swim would do) before entering the water.

The jury found not only that the pit, or pool, was attractive to children, but that it %oas dangerous, and did attract to it the McLaughlin child. It was found in answer to one special issue that the pit was unusually attractive and in answer to a separate issue that it was dangerous to children. That it was dangerous to children is not open to question under the record. Plaintiff so alleged; the jury so found, and the evidence to that effect is indisputably substantial.

The following features of the facts and circumstances of the case are determinative of the correctness of the action of the Court of Civil Appeals in affirming the trial court’s judgment: (a) the place where the condition was maintained was one upon which the possessor knew or should have known that small children would likely frequent the place and play about it; (b) the condition was one of which the possessor knew, or should have known, involved an unreasonable risk of death or serious bodily harm to such children; (c) the child, because of its tender years, did not realize the risk involved in going into the pool; and (d) the utility, if any, to Mr. Banker of eliminating the danger was slight as compared to the prob-x ability of injury resulting therefrom. See in this connection, Restatement, Torts, Sec. 339 and 36 A. L. K. p. 294.

We agree with the judgment of the Court of Civil Appeals affirming that of the trial court, and overrule all of the above points. Flippen-Prather Realty Co. v. Mather, 207 S. W. 121; Little v. James McCord Co., 151. S. W. 835; Bustillos v. Southwestern Portland Cement Co. (Com. App.) ,211 S. W. 929; McCoy v. Texas Power & L. Co., 239 S. W. 1105, reversing Id., 229 S. W. 623; Galveston-Houston Elec. Ry. Co. v. Reinle, 113 Texas 456, 258 S. W. 803; Houston E. & W. T. R. Co. v. Jones, 1 S. W. (2d) 743, (dr. ref.) ; Duron v. Beaumont Iron Works, 7 S. W. (2d) 867; Johns v. Ft. Worth P. & L. Co., 30 S. W. (2d) 549; West Tex. Utilities Co. v. Renner, 32 S. W. (2d) 264; Texas Pub. Service Co. v. Armstrong (wr. ref.), 37 S. W. (2d) 294; West Texas Utilities Co. v. Renner (Com. App.), 53 S. W. (2d) 451; Quisenberry v. Gulf Prod. Co., 63 S. W. (2d) 248; Tex.-La. Power Co. v. Bihl (Com. App.), 66 S. W. (2d) 672; Renfro Drug Co. v. Jackson, 81 S. W. (2d) 101, loc. cit. (5,6), p. 103; Gulf Prod. Co. v. Quisenberry (Com. App.), 128 Texas 347, 97 S. W. (2d) 166; Kellum v. Wheeler (Com. App.), 129 Texas 74, 101 S. W. (2d) 225, loc. cit. (1, 2) p. 229; Fruge v. James, 115 S. W. (2d) 1175, loc. cit. (6, 7), 1177; Texaco Country Club v. Wade, 163 S. W. (2d) 219; Best v. District of Columbia, 291 U. S. 411, 54 Sup. Ct. 487, 78 L, Ed. 882; “Liability Arising from Dangerous Premises” (1923), 1 Texas Law Review, p. 1, serially continued, Id. pp. 289 to 406; “Landowner v. Intruder, Intruder v. Landowner,—Basis of Responsibility in “Tort” (1923), 57 Amer. Law Review, pp. 321-51 (reprinted from Michigan Law Review by permission).

The Supreme Court of this State took early recognition that the so-called “attractive-nuisance doctrine” had its origin in the turntable cases; and that when children of tender years came upon the premises by virtue of their unusual attractiveness, the legal effect was that of an implied invitation to do so. Such child was regarded, not as a trespasser, but as being rightfully on the premises. We quote from the Duron (7 S. W. (2d) 869) case as follows:

“The theory of liability under the attractive nuisance doctrine is that, where the owner maintains a device or machinery on his premises of such an unusually attractive nature as to be especially alluring to children of -tender years, he thereby impliedly invites such children to come upon his premises, and, by reason of such invitation, they are relieved from being classed as trespassers, but are in the attitude of being rightfully on the premises. Under such circumstances, the law placed upon the-owner of such machinery or device the duty of exercisigig ordinary care to keep such machinery in reasonably safe condition for their protection, if the facts are such as to raise the issue that the owner knew, or in the exercise of ordinary ccure ought to have known, that such children were likely or would probably be attracted by the machinery, and thus be drawn to the premises by such attraction.” (Emphasis ours).

The “attractive-nuisance,” or so called turntable doctrine, is applicable to cases involving different dangerous instrumentalities and conditions on the premises. See in this connection the McCoy case; the Duron case; San Antonio & A. P. Ry. Co. v. Morgan, 92 Texas 98, 46 S. W. 28; Stanford Oil Mill v. Barnes, 103 Texas 409, 413, 128 S. W. 375, 31 L. R. A. N. S. 1218, Ann. Cas. 1913a, 111; the Flippen-Prather case; and the McCord case.

In the Bustillos case the following rule was applied and quoted by the Supreme Court (opinion on certified question) in Galveston-Houston Elec. Ry. Co. v. Reinle (113 Texas 456, 258 S. W. 804) :

“The owner or occupant of real property is under no obligation to make it safe for the benefit of trespassers, intruders, or mere licensees coming upon it without his invitation, expressed or implied. If, however, such owner or occupa/nt invites the public or particular members of it to come upon his premises, he owes to such persons the duty to have same in a reasonably safe condition and to give warning of latent or concealed perils.” (Emphasis ours).

An important decision in the history of the holdings of this Court on the subject under discussion was made in Gulf Production Co. v. Quisenberry, supra. The suit was by the father (Quisenberry) on behalf of his minor son for damages sustained while playing upon a tubing rack teetering on its frame (with a tubing spoon at one end of the frame convenient for climbing on the rack) whereby a situation dangerous to children was created on the company’s premises. The defendant company knew, as pointed out in the opinion, that “children played over the company’s entire property so far as fencing or segregation is concerned,” and that the company must have anticipated the presence of children there; and, knowing of conditions likely to cause injuries to persons coming on the premises, “was bound yfco use the care of an ordinarily prudent person” to prevent such injuries. The holding stated governed this Court’s decision in th&. case and was announced on the theory, as stated in the opinion, that “the basis for recovery must be the company’s negligence.” It was pointed out in the Quisenberry case preliminary to giving application to this doctrine, that liability was sought by plaintiff Quisenberry to be predicated “upon the ‘attractive-nuisance doctrine’ which had its origin in the ‘turntable cases’ * * citing the Johns, McCoy and Duron' cases.

In the Bihl case, supra, this Court said, citing 6 C. J. 819, San Antonio & A. P. Ry. Co. v. Morgan, 92 Texas 98, 46 S. W. 28 and Simonton v. Citizens’ E. L. & P. Co., 67 S. W. 530:

“Generally speaking, an attractive nuisance is a thing which may naturally be expected to allure young children upon private premises, or a thing which has an especial or unusual attraction for young children by reason of their childish instincts. * *. * In order for a thing to constitute an attractive nuisance, it must be so construed or maintained as to constitute an implied invitation to young children. In other words, the thing or instrumentality must be such that cm account of its nature, location, and surroundings it is especially and unusmRy calculated to attract and does attract young children.”

It is obvious from the above holdings that it is immaterial, so far as the question of liability is concerned, whether a hidden peril be in the teetering condition of a tubing rack on its frame (as in the Quisenberry case) or (as in the present case) in an abandoned excavation filled with water. It is of course immaterial also whether the dangerous condition be in close proximity to a path or highway, as is held in some cases, since that fact merely bears on whether the presence there of members of the public is reasonably to be anticipated. Whether the dangerous condition is an “attractive nuisance” is also merely a circumstance bearing on the same question. It is manifest from the above holdings that whether the facts bring the case within the rule respecting pitfalls and dangerous conditions are adjacent to highways or by-paths, is not determinative as a matter of law of the question of implied invitation, or the owner’s liability, but may be such, (as in the present case), to raise and support special issues on the subject. Certainly this is true if it is a matter of common knowledge, as held in Williams v. Kansas City, C. C. & St. J. Ry. Co., 222 Mo. App. 865, 6 S. W. (2d) 48, “that many boys every years lose their lives by drowning”; and that the number of deaths of those visiting ponds and lakes to swim and play, in comparison to the number visiting such pools for such purposes, is comparatively small. Norris it important for what purpose a person (impliedly invite^') enters premises on which a dangerous condition is maintained, provided his presence there is reasonably anticipated. NoNis it important, for the same reason, whether the dangerous condition is visible from traveled ways.

What appears to correspond with the view of this Court as to the present case being one of negligence, was later expressed in the Best case, supra, by Chief Justice Hughes, as follows:

“The question is one of negligence, * * * and * * * that while ‘temptation is not invitation’, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow a bait as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation * * (291 U. S. 411, 54 Sup. Ct. 490).

It is pertinent as showing the general law on the subject in other jurisdictions to quote from 38 Amer. Jur., Negligence, Section 142, pp. 802-4:

“While the doctrine (attractive nuisance, sometimes called turntable) has been variously stated, courts which accept it generally are in substantial accord with the proposition that one who maintains upon his premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years, by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction, * * (Emphasis ours). See in this connection Montgomery-Ward Co. v. Ramirez (Civ. App.), 127 S. W. (2d) 1034. Also pertinent is the following excerpt from Prosser on Torts (1941) under the subheading “Trespassing Children”;

“Accordingly two-thirds of the American courts have developed a doctrine, which has been sadly miscalled by the name of ‘attractive nuisance’, making the occupier of land liable for conditions on it which are highly dangerous to trespassing children. This doctrine, which has aroused * endless discussion, is surrounded by no little confusion, * * *. The better authorities now agree that the element of ‘attraction’ is important only in so far as it may mean that the trespass is to be anticipated, cmd that the basis of liability is merely the foreseeability of harm to the child. * * (Emphasis ours).

As showing a trend of the law along the same line in other jurisdictions, see Angelier v. Red Star Yeast & Products Co., 215 Wis. 47, 254 N. W. 351, (the court overruling its former opinions, Zartner v. George, 156 Wis. 131 and Lewko v. Milling Co., 179 Wis. 83, 190 N. W. 924) ; Gimmestad v. Rose Bros., 194 Minn. 531, 261 N. W. 194; Wolfe v. Rehbein, 123 Conn. 110, 193 Atl. 608; Parsons v. Appalachian Electric Power Co., 115 W. Va. 450, 176 S. E. 862, 100 A. L. R. 615, and 47 C. J. 757. See also Restatement, Torts, Sec. 339, which reflects the result of the labors of the American Law Institute in working out along a line not inconsistent with the above holdings a rule calculated to justly balance the rights between an occupant of land (who has created thereon a dangerous condition, particularly to children) and a person whose injury was proximately caused by such condition.

The Court of Civil Appeals, in applying in this case the law as declared in the Flippen-Prather case, was well within' the holdings of that case, as well as the other cases cited above as controlling. The controlling facts parallel __ closely the facts of this case. A Dallas addition 'on which a dangerous water hole created by enlargement from an abandoned well), unguarded and without utility to the owners of the addition, was in the process of being developed and marketed when Vernon Mather was drowned in it. Reference was made by the court to Dobbins v. Missouri, K. & T. Ry. Co., 91 Texas 61, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep., 856, (cited by appellant as controlling in the present case) but the Court of Civil Appeals did not follow it, saying merely that the case was not ruled by it” or by any case cited by appellant * * * in conflict with the views * * * (there) expressed.” (Emphasis ours). The question of the basis of liability as presented in that case was squarely before the Supreme Court on application by the owners of the addition for writ of error wherein it appears they relied primarily on, the Dobbins case. In refusing the application for the writ the Supreme Court committed itself to the correctness of the law as declared by the Court of Civil Appeals in the Flippen-Prather case, and as applied in the present case.

This is a type of case that rests on its own facts and circumstances. The governing rules and principles, although well established, should be applied with caution; that is, they should be given application only when the controlling facts bring the case well within such rules and principles.

It is obvious from what has been said that no new rule of liability on the part of occupants of real property is announced here, and that such occupants in constructing or maintaining tanks, water reservoirs, or devices of any kind, for use on their lands, are under no greater burden with respect to creating dangerous conditions thereon than has heretofore rested upon them. The governing rules and principles have been regarded from tiie beginning as among those which should be cautiously applied.

We overrule all of the points of error presented in the application of petitioner and affirm the judgment of the Court of Civil Appeals which affirms that of the trial court. It is so ordered.

Opinion delivered February 4, 1948.

Mr. Justice Garwood not sitting.

Rehearing overruled March 17, 1948.