Boyer v. Guidicy Marble, Terrazzo & Tile Co.

• Decision Date: 10 March 1952
• Docket Number: No. 42473,No. 1,42473,1
• Citation: 246 S.W.2d 742
• Court: Missouri Supreme Court
• Parties: BOYER v. GUIDICY MARBLE, TERRAZZO & TILE CO

Page 742

246 S.W.2d 742

BOYER v. GUIDICY MARBLE, TERRAZZO & TILE CO.

No. 42473.

Supreme Court of Missouri, Division No. 1.

March 10, 1952.

Paul M. Patton, St. Louis, and Ennis & Saunders, Festus, for appellant.

Dearing & Matthes, Will B. Dearing and Joseph G. Stewart, Hillsboro, for respondent.

COIL, Commissioner.

Appeal from a final judgment dismissing plaintiff's amended petition which prayed damages of $20,000 for personal injuries.

Plaintiff averred these facts: that defendant owned and operated a rock quarry in Jefferson County, Missouri, near Horine Road, a road to the west of a U. S. highway; that in the operation of the quarry defendant possessed, used, and controlled dynamite caps which were dangerous agencies a fact known to defendant; that defendant failed to exercise proper care in keeping and maintaining the dynamite caps in that it negligently permitted the caps to lie on the ground in an apparent abandoned and 'thrown away' condition at a place near the quarry, which place was open, unguarded, easily accessible to children, and frequented by them; that plaintiff, a boy 17 years of age, and a companion, 13 years of age, found the apparently abandoned and 'thrown away' dynamite raps at the place frequented by children; that neither plaintiff nor his companion knew what they had found or that the dynamite caps were dangerous; that each believed the caps had been thrown away and abandoned; that plaintiff took the caps to his home and two days later, during which interval plaintiff's knowledge as to the identity or character of the caps had not changed, stuck a nail into one of them, causing it to explode and seriously injure him.

Defendant contends that the trial court properly dismissed the petition because it fails to state a claim upon which relief can be granted for the reasons that it discloses: (1) that plaintiff was a trespasser to whom defendant owed no duty; (2) that even if there was some duty owed by defendant to plaintiff which was breached by defendant, such breach of duty was not the proximate cause of any injury to plaintiff; and (3) that there is no averment in plaintiff's petition charging defendant with actual or constructive knowledge of the presence of plaintiff.

Plaintiff to the contrary contends that the petition sufficiently charges defendant with negligence in leaving dangerous explosives in a state of abandonment at an open and unguarded place frequented by children; that defendant could reasonably anticipate serious injury would result; and that the removal of the explosive by plaintiff and his subsequent acts were not efficient intervening causes between the alleged negligence and plaintiff's injury.

It is important to be mindful of the fact that we here consider only the question of whether plaintiff's amended petition, when its averments are accorded every reasonable and fair intendment, states a claim which can call for the invocation of the principles of substantive law which may entitle plaintiff to relief. Gerber v. Schutte Inv. Co., 354 Mo. 1246, 1252, 194 S.W.2d 25, 28[4-7]. The record shows that, on motion of defendant, plaintiff's original petition was dismissed with leave to plead further within 20 days. Plaintiff thereafter filed his amended petition. Under these circumstances, it appears that plaintiff probably has had an opportunity to discover all the facts pertaining to his claim and further, the probability is that the specific reasons for defendant's attack upon his original petition were made known to plaintiff prior to the court's first order of dismissal. Thus, if thereafter plaintiff has not stated a claim upon which relief can be granted, it does not appear that substantial justice would not be served by enabling the pleader to avail himself of trial procedure. Gerber v. Schutte Inv. Co., supra.

With the facts of a prior dismissal and the subsequent filing of an amended petition in mind, we are justified in assuming, even though the petition does not affirmatively aver it, that the dynamite caps found by plaintiff were at the time on the property of defendant; and that plaintiff is not mentally subnormal.

We may narrow our further discussion by eliminating now defendant's contention, (3) above, that the petition does not charge defendant with actual or constructive knowledge of the presence of plaintiff. It is obvious from the averments of the petition that plaintiff has used the word 'children' therein to describe a class of persons under the age of 21 years, and the averment that the place frequented by children was near the quarry being operated by defendant is sufficient to have charged at least constructive knowledge by defendant of the presence of persons of a class to which plaintiff belonged.

The meritorious questions are: whether, solely from the averments of the petition, we may say as a matter of law that defendant owed plaintiff no duty; and if there was a duty and a breach thereof, whether such breach was a proximate cause of plaintiff's injury.

Plaintiff apparently does not seek recovery on the theory of 'attractive nuisance.' He may not recover on this theory, as the doctrine of 'attractive nuisance' has been applied in this state, because there is no averment which, under the most liberal construction of the petition, may be said to aver that plaintiff was caused to trespass because an inherently dangerous condition or instrumentality attracted him. The fact that the attractive nuisance caused the original trespass is an essential prerequisite to the invocation of the 'attractive nuisance' doctrine in Missouri. Holifield v. Wigdor, 361 Mo. 636, 641, 235 S.W.2d 564, 567[3, 4]; State ex rel. W. E. Callahan Const. Co. v. Hughes, 348 Mo. 1209, 1215, 159 S.W.2d 251, 254; Hull v. Gillioz, 344 Mo. 1227, 1235, 1236, 130 S.W.2d 623, 627, 628[1-3][4, 5].

We have long recognized and applied the principle that the existence of and the extent of a duty of protecting one from danger on private premises is controlled by the status of the person subject to such danger. Thus, we have consistently held that a property owner has no duty to a trespasser or licensee to use reasonable care to keep his land in reasonably safe condition for them and no duty to carry on his activities so as not to endanger them. An exception to this rule, which is usually stated as part of the rule, is that the landowner may not willfully or wantonly injure the trespasser or licensee. Kelly v. Benas, 217 Mo. 1, 9, 116 S.W. 557, 559, 20 L.R.A.,N.S., 903; Ford v. Rock Hill Quarries Co., 341 Mo. 1064, 1070, 111 S.W.2d 173, 175[2-4]. There are other exceptions to the general rule. Among these are factual situations which call for the application of the 'attractive nuisance' doctrine. Hull v. Gillioz, supra. Those situations which call for the duty of lookout on the part of railway employees as to trespassers or licensees using a pathway long and habitually used. Ahnefeld v. Wabash R. Co., 212 Mo. 280, 300, 111 S.W. 95, 99. And fact situations wherein it may be said that some affirmative negligence inflicted injury upon a licensee or trespasser present upon an habitually used pathway. Porchey v. Kelling, 353 Mo. 1034, 1041, 185 S.W.2d 820, 823[5, 6], and cases there cited.

There is another exception to this general rule which is recognized in this state. This, that one who is under the duty to exercise the care in using, maintaining, and handling extremely dangerous explosives which a reasonably careful person would exercise under the same or similar circumstances, owes a duty especially to children and those of immature judgment, irrespective of the fact that the status of the person may be that of trespasser or licensee. In Kansas City ex rel. Barlow v. Robinson, 322 Mo. 1050, 1059, 17 S.W.2d 977, 981, 32 S.W.2d 1075, this court en banc held that it was negligence to leave exposed and unguarded in an accessible place, explosives which may be found by trespassing children. In Diehl v. A. P. Green Fire Brick Co., 299 Mo. 641, 655, 253 S.W. 984, 988[2, 3], we recognized that unexploded dynamite caps are 'extremely dangerous agencies. They are easily exploded and most deadly in their effect when exploded.' It was held there that it was for the jury to say whether a reasonably prudent and careful man would throw away unexploded dynamite caps at a place where children might find them. In Kennedy v. Independent Quarry and Const. Co., 316 Mo. 782, 790, 291 S.W. 475, 477, we recognized the general rule that one having highly dangerous explosives in his control must exercise care commensurate with the circumstances. See also: Gerber v. Kansas City, 304 Mo. 157, 174, 263 S.W. 432, 436.

This recognition of a landowner's liability to a trespasser is not an extension of the 'attractive nuisance' doctrine. It may involve some of the basic considerations which prompted the 'attractive nuisance' doctrine, but it is, nevertheless, a rule independent of the 'attractive nuisance' doctrine. Alligator Co. v. Dutton, 8 Cir., 109 F.2d 900, 903[1, 2]; Holifield v. Wigdor, supra.

In some other jurisdictions in which the basic concept of the 'attractive nuisance' doctrine differs from ours, in that it is not required that the child's trespass be caused by the 'attractive nuisance,' the courts have applied their 'attractive nuisance' doctrines to highly dangerous explosives. See exhaustive annotation in 10 A.L.R.2d 22, wherein most of the cases involving explosives left in a place accessible to children are collected and analyzed. At pages 35 and 36, the annotator states: 'In a large majority of the cases, however, it has been held, without reference to the factor of the child's sense of moral responsibility, that where an owner or occupant stores or uses explosives on his premises, and has actual or constructive notice of the probable presence of children thereon, the rule relating to ordinary trespassers does not apply, and the owner cannot avoid liability for his negligence...