Dennis v. Spillers
| Decision Date | 01 July 1947 |
| Docket Number | 32714. |
| Citation | 185 P.2d 465,199 Okla. 311,1947 OK 208 |
| Parties | DENNIS et al. v. SPILLERS et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 21, 1947.
Appeal from District Court, Tulsa County; Oras A. Shaw, Judge.
Action by H. B. Dennis and Beulah B. Dennis against Grover C Spillers and Lorene Spillers to recover for the death of a seven year old child of the plaintiffs who was drowned in a pond belonging to the defendants. From a judgment sustaining defendants' demurrer to the petition and dismissing the case after plaintiffs' election to stand thereon, the plaintiffs appeal.
Judgment affirmed.
Syllabus by the Court.
1. Ordinarily, a landowner owes no duty of active care toward one, either adult or infant, who is on his premises without an invitation, express or implied, and neither silence acquiescence or permission is, alone, sufficient to establish an invitation.
2. A pond of water, whether natural or artifical, is not an attractive nuisance, in the absence of any hidden inherent dangers.
John R Woodard, of Tulsa, for plaintiffs in error.
W. E Green, J. C. Farmer, Robert J. Woolsey, David H. Sanders and Otho Flippo, all of Tulsa, for defendants in error.
This is an appeal from an order sustaining defendants' demurrer to plaintiffs' amended petition, and dismissing the case after plaintiff's election to stand thereon. The parties will be referred to as they appeared in the trial court.
The plaintiffs were the parents of William D. Dennis, a seven year old child, who was drowned in an ornamental pond built by the defendants, partly on the premises occupied by them as a home and partly on an unused street adjacent thereto, in the City of Tulsa. Plaintiffs alleged that they were the parents and next of kin of the deceased; that the defendants were occupying certain lands owned by them and a portion of an adjoining street as a home, upon a part of both of which was a pond, 75 feet in diameter and approximately 10 feet deep, with steep sides. That there was shubbery around a part of the pond and also rock steps down into the pool over which water ran. That it was attactive to children and was in a thickly populated residential section of the city, was not fenced in, and was in close proximity to another pond or lake in a municipally owned park, which latter pond was enclosed with a strong fence; and there near a place where children often played. That in maintaining said pond the defendants were wantonly negligent and that decedent was attracted to and into said pond, where he was drowned, as the direct and proximate result thereof. That defendants were cognizant of the alluring and dangerous condition because of the fact that another child had been drowned there some nine years previously. The prayer was for actual and exemplary damages.
Certain parts of the petition were stricken by the trial court as irrelevant and redundant, on motion of defendants and the general demurrer of the defendants sustained.
The plaintiffs urge that it was error for the trial court to strike those portions of the petition and also to sustain the demurrer thereto. We will treat and consider the petition before any part was stricken, and if the same stated no cause of action, the striking of the...
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