Banker v. McLaughlin

Citation208 S.W.2d 843
Decision Date04 February 1948
Docket NumberNo. A-1272.,A-1272.
CourtSupreme Court of Texas

Smith, Smith & Levy and Carl D. Levy, all of Beaumont, A. H. Boyd, of Rusk, Homer E. Stephenson, of Orange, and Gil K. Phares, of Port Arthur, for petitioner.

Cecil & Keith, and John P. Blair, all of Beaumont, for respondent.

TAYLOR, Justice.

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. 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. 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 homesite 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 negligence 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 negligence 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 was neither a licensee nor an 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 unused 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 (40 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. Banker 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 view to 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 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 of * * * 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...

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    ...... this state, for example, we have excepted from these categorizations attractive nuisances (Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843 [1949] ); dangerous conditions obvious to the owner ......
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