Bicandi v. Boise Payette Lumber Co.

• Decision Date: 03 May 1935
• Docket Number: 6037
• Citation: 44 P.2d 1103,55 Idaho 543
• Parties: EUGENIO BICANDI and DOLORES BICANDI, Respondents, v. BOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

44 P.2d 1103

55 Idaho 543

EUGENIO BICANDI and DOLORES BICANDI, Respondents, v. BOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant

No. 6037

Supreme Court of Idaho

May 3, 1935

NEGLIGENCE - MILL-POND - INJURIES TO CHILDREN - ATTRACTIVE NUISANCE DOCTRINE - INVITEES-PLEADING-GENERAL DEMURRER-APPEAL AND ERROR-ASSIGNMENT OF ERROR, SUFFICIENCY OF.

1. Liability under "attractive nuisance doctrine" is based on negligence of owner of dangerous property in failing to exercise reasonable care for protection of those endangered by property; but owner is not liable to children injured by useful property where owner could not have excluded children from contact with property nor otherwise prevented their injury by reasonable care, or where owner has used property only as reasonably prudent person would do under like circumstances.

2. Sawmill operator held not liable for death of boy drowned in mill-pond because of failure to maintain sufficient fence or barrier to keep boys away from pond.

3. "Attractive nuisance doctrine" applies only where children have been injured while on premises where they would be trespassers except for implied invitation by something thereon which has attracted them.

4. Complaint against sawmill operator for death of boy drowned in mill-pond stated no cause of action under "attractive nuisance doctrine," where complaint alleged that boy was invited to remain on defendant's premises by watchman acting within scope of his authority, but stated cause of action for watchman's negligence in permitting boy to go to island, formed in part by pond covered with logs, and in taking no action to protect boy from danger while there.

5. Sawmill watchman owed boy drowned in mill-pond, of whose presence he knew, positive duty to exercise reasonable care for his safety, if boy was on premises by watchman's invitation, and, whether boy was licensee or invitee, owed boy duty to protect him from disaster which was imminent from playing about mill-pond and logs floating thereon and to prevent boy from playing there.

6. General demurrer should be overruled if facts alleged in complaint are sufficient to constitute cause of action entitling plaintiff to any relief against defendant.

7. Where no error was assigned on instruction erroneously submitting action for boy's death by drowning in mill-pond under attractive nuisance doctrine, and there was undisputed evidence supporting allegations of complaint based on defendant's negligence in permitting boy to go to pond and in taking no precaution to prevent injury while boy was there, verdict for plaintiff was sustained.

8. Sawmill operator held not liable under "attractive nuisance doctrine" for death of boy drowned in mill-pond after receiving invitation from watchman to remain on mill premises.

9. Supreme Court will not review acts of district court which have not been assigned as error.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

Action for damages for death of child. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs awarded to respondents. Petition for rehearing denied.

Ralph S. Nelson and Alfred A. Fraser, for Appellant.

If a person is granted a license to go upon a certain part of the premises and he should wander or go upon any other part, he immediately becomes a trespasser toward whom the landlord owes no duty except not to wilfully and wantonly injure him.

The complaint in this case alleges that the boy, Lucio B Bicandi, requested permission from one Steele, a watchman for the defendant, to go down upon the island and play, and evidence to the same effect was introduced upon the trial. When the deceased Bicandi left the island and proceeded for a half-mile or more up to the log pond, he then became a trespasser.

In Lange v. St. Johns Lumber Co., 115 Ore. 337, 237 P. 696 this court said: "There is a difference between one present on premises by invitation, express or implied, and one who is merely there by permission or toleration. The one is termed an invitee and the other a mere licensee. As to the former, the owner of the premises is bound to use reasonable care to prevent the infliction of hurt upon the invitee. (Keeran v. Spurgeon Mercantile Co., 194 Iowa 1240 191 N.W. 99, 27 A. L. R. 597.)

"As to the latter, the owner of the premises owes no duty than to avoid wilful or wanton injury to the licensee."

Dean Driscoll and Carey Nixon, for Respondents.

The "attractive nuisance" doctrine is applicable to both natural and artificial bodies of water as much as in other cases where the facts are such as to show negligence on the part of the defendant. (Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882; Franks v. Southern Cotton Oil Co., 78 S.C. 10, 58 S.E. 960, 12 L. R. A., N. S., 468; Starling v. Selma Cotton Mills, 168 N.C. 229, 84 S.E. 388, L. R. A. 1915D, 850; Renno v. Seaboard Air Line Ry. Co., 120 S.C. 7, 112 S.E. 439.)

The act of the watchman in permitting deceased to enter the premises was an act of negligence for which the defendant was responsible. (Cook v. Houston Direct Nav. Co., 76 Tex. 353, 13 S.W. 475, 18 Am. St. 52; 39 C. J., Master and Servant, p. 1285, sec. 1477.)

MORGAN, J. Givens, C. J., and Sutton, D. J., concur, HOLDEN, J., Concurring Specially. BUDGE, J., Dissenting.

OPINION

MORGAN, J.

Appellant owns and operates a sawmill adjacent to Emmett, in Gem County. The mill property is situated along the Payette River and, as a part of it, appellant has constructed an artificial pond which is filled with water by means of a canal from the river. The pond, canal and river surround a tract of land referred to in the case as the island. This pond is, and during the times herein mentioned was, used by appellant for the purpose of storing saw logs, brought on the premises by it to be manufactured into lumber at the mill. April 5, 1931, Lucio B. Bicandi, aged 11 years, son of respondents, with two other boys went to the pond and Bicandi and one of his companions went upon the logs floating therein, fell into the water and were drowned. This action was prosecuted by the parents of the Bicandi boy for damages, on the theory that appellant's negligence caused the death of their son. A general demurrer to the complaint was overruled, defendant answered, and trial to a jury resulted in a verdict for plaintiffs. A motion for judgment notwithstanding the verdict was overruled and judgment on the verdict was entered. This appeal is from the judgment, and one of the specifications of error brings here for review the order overruling the demurrer.

It is alleged in the complaint that respondents were and are husband and wife and the parents of Lucio B. Bicandi, and that his death was the result of the negligent acts of appellant as therein set forth. The corporate existence of appellant is alleged, as is its ownership and operation of the sawmill and premises above mentioned; also that on April 5, 1931, and for sometime prior thereto, one Steele had been employed by appellant as caretaker and watchman, agent and employee in charge of its mill premises and was, on the afternoon of that day, acting in the course and within the scope of his employment. Then follows a description of the mill property, and it is set out that it is bounded on the North side by the Payette River and fenced on the East, South and West sides by a high picket fence. The construction and maintenance of the mill pond is alleged, as is its use for the storage of logs by appellant, and it is pleaded that the pond and logs were visible to children traveling and playing thereabouts and constituted an alluring, enticing and attractive place for boys to play. It is also alleged that at a point on the East side of the mill property where the fence ends at the South bank of the river the lower portion of the pickets have been broken off, some distance above the ground, making a hole under the fence sufficiently large to admit boys to appellant's premises, and paths and trails leading to the hole in the fence are described. These conditions are alleged to have been well known to appellant, its agents, servants and employees and particularly to its watchman on and prior to April 5, 1931. It is further alleged that many small boys living in and about Emmett were enticed, attracted and allured by the mill pond and floating logs and by the trails and paths leading through the fence to go into and upon appellant's property and play on the island; that on April 5, 1931, the Bicandi boy and his two companions, one 7 and the other 8 years old, went through the hole in the fence and from thence in a westerly direction toward the island; that the watchman was standing about 150 feet from the point where the boys entered the premises and asked them where they were going, to which they answered they were going down to the island to play, and that he replied "All right"; that the boys went to the island and shortly thereafter Bicandi and one of his companions commenced to play and run upon the logs floating in the mill pond; that one or more of the logs rolled or twisted throwing the two boys into the water and the logs closed over them rendering it impossible for them to get out, and they were drowned; that the other boy ran for help and located the watchman a short distance away at a point where he could, and did, or in the exercise of reasonable care, should have seen that the boys were playing and running on and about the logs. It is further alleged in the complaint:

"That the said injuries to the said minor, Lucio B. Bicandi, were directly and proximately due to and caused by the negligence of the defendant, Boise Payette Lumber Company, in the following particulars, to-wit:

"(1) In...