Ansin v. Thurston, 57-39
| Decision Date | 05 November 1957 |
| Docket Number | No. 57-39,57-39 |
| Citation | 98 So.2d 87 |
| Parties | S. ANSIN, Appellant, v. Ralph L. THURSTON, individually and as Administrator of the Estate of Ralph L. Thurston, Jr., Deceased, Minor, Appellees. |
| Court | Florida District Court of Appeals |
Blackwell, Walker & Gray, and John R. Hoehl, Miami, for appellant.
Nichols, Gaither, Green, Frates & Beckham, and Sam Daniels, Miami, for appellees.
The appellant was defendant in each of the two cases now considered upon a consolidated appeal. The cases arose out of an accident which resulted in the death by drowning of appellee's minor son, Ralph L. Thurston, Jr. The first case was brought by the father, Ralph L. Thurston, individually and the second as the administrator of his son's estate. The causes were tried together below and are now considered together in this court.
These cases were transferred from the Supreme Court of Florida to this court under the authority of Sec. 26(6), Article V of the Constitution as amended, F.S.A. Prior to the transfer, the appellees filed a motion to strike points two and three in appellant's brief and the argument thereon upon the ground that said points were not raised by the only assignment of error argued thereunder. Point two attempted to raise alleged error in a charge to the jury and point three alleged error in the admission of a photograph. It was sought to base these points upon the following assignment of error:
'The court erred in denying defendant's motion for a new trial.'
The Supreme Court struck appellant's points two and three. There remains for our consideration appellant's point number one which is based upon assignments of error directed to the refusal of the trial court to direct a verdict. Therefore, the evidence on this appeal must be viewed in the light most favorable to the plaintiff. Viewed in this light there was sufficient evidence to establish each of the elements of the plaintiff's case and the court did not commit error by its refusal to take the case from the jury.
The complaints in these actions are identical in the portions alleging negligence. The cause of action in each instance is dependent upon the proof of facts sufficient to bring the situation which existed upon the property of the defendant within the basis of liability in tort that is usually referred to as 'Attractive Nuisance'. This doctrine was applied first to the maintenance of a condition where children of immature age are lured to go upon dangerous machines or contrivances. See May v. Simmons, 104 Fla. 707, 140 So. 780. It has found a broader application in many cases and its application to the danger of artificial bodies of water was approved by the Supreme Court of Florida in Allen v. William P. McDonald Corporation, Fla.1949, 42 So.2d 706.
In that case the court adopted the rule that the owner of an artificial body of water is not guilty of actionable negligence on account of drownings therein unless it is constructed so as to constitute a trap or unless there is some unusual element of danger lurking about it not existent in ponds generally. The court found...
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