Holifield v. Wigdor
| Decision Date | 08 January 1951 |
| Docket Number | No. 1,No. 41841,41841,1 |
| Citation | 361 Mo. 636,235 S.W.2d 564 |
| Parties | HOLIFIELD et al. v. WIGDOR et al |
| Court | Missouri Supreme Court |
J. Grant Frye, Cape Girardeau, attorney for appellant.
Marshall Craig and Bailey & Craig, all of Sikeston, attorneys for respondents.
ASCHEMEYER, Commissioner.
This is a suit to recover damages in the amount of $15,000 for the alleged wrongful death of plaintiffs' son, a child approximately five years of age. There was a verdict for the defendants and plaintiffs have appealed.
Plaintiffs' son was drowned on January 27, 1949, in a water-filled excavation located on residential property in Charleston, Missouri, owned by Jesse N. Scott and his wife. The Scotts, along with the Semo Gas Company, were originally joined as defendants but plaintiffs dismissed as to these defendants prior to trial and proceeded against the Wigdor Furniture Company and Julius Wigdor, the respondents on this appeal.
In January, 1949, the Scotts purchased from the Wigdor Furniture Company, through Julius Wigdor, as gas furnace to be installed in their residence. The respondents were to install the gas heating system, including a 500 gallon underground gas tank which was to be located adjacent to the residence, but the Semo Gas Company was supervising and checking the installation. After the furnace and two small gas tanks were installed, a hole was dug for the large tank on January 22, 1949. There was a good deal of rainfall after the hole was dug and by January 27, 1949, the hole was 'brimful of water.' On the latter date, sometime after 4:00 p. m., appellants' (plaintiffs') son entered the water-filled excavation (in some manner not disclosed by the evidence) and was drowned.
Appellants base their right to recover upon the attractive nuisance doctrine. Their theory of the case, as pleaded and submitted by an instruction, was that the installation of the two small gas tanks next to the Scott residence, the water-filled excavation for the large gas tank, and the large tank situated adjacent to the excavation 'created an inherently dangerous condition to children of the age of such deceased child' because the tanks were bright and shiny and could be easily seen from the adjacent street and 'that the tanks, their appearance, their location, the fresh dirt, the water in the hole, and the area in and about such hole became naturally attractive to such deceased child.'
Appellants assign error in the giving of various instructions on behalf of respondents. Respondents contend such instructions were properly given but argue that any error therein is immaterial since appellants failed to prove a submissible case and are not entitled to recover. This was the view of the trial court expressed, as follows, in a memorandum opinion filed at the time appellants' motion for a new trial was overruled: 'This court is still of the opinion that there was insufficient evidence in the whole case to make a submissible case and if there is any error in the instructions, it is harmless error because the verdict and judgment are for the proper parties.'
Did appellants make a submissible case? Respondents offered no evidence. Appellants' evidence, in addition to facts already stated, showed: The Scott residence was on the west side of South Main Street in Charleston, Missouri. The house faced east and was a short distance north of Ashby Street, an unpaved, east-west intersecting street. Main Street was paved and was much traveled. There were paved sidewalks on both sides of Main Street, north of Ashby Street. Appellants lived on the east side of Main Street about one block south of the Scott residence. This was a residential neighborhood and many children lived in the immediate vicinity.
The two small gas tanks were installed close to the south side of the Scott residence. They were 3 1/2, feet high; 10 inches in diameter; were painted with aluminum paint; and were silvery in color, except for a black cap. The hole for the large tank was 8 or 10 feet south of the residence. It was 5 feet wide, 8 feet long and about 6 feet deep. Earth was piled around three sides of it. The east end of the hole was about 64 feet west of the sidewalk in front of the Scott home. The large gas tank was delivered in the late afternoon of January 26. It was placed approximately 5 feet east of the hole. This tank was also aluminum in color. It was 7 feet long, 5 feet high and 4 1/2 feet wide. The tanks were plainly visible from the sidewalk.
The hole was dug on Saturday, January 22. Mr. Wigdor was on the premises on the following Monday and Tuesday. The rainy weather delayed the installation of the tank. There was no fence or barricade placed around the hole.
It was cloudy and rainy on January 27 but when the deceased child left his home about 4:00 p. m. to go out to play, the sun was shining. The child was missed about 4:30 p. m. Other children looked for him without avail. Later, Mr. Holifield and some neighbors began to search. The child was found submersed after 8 o'clock that evening. A wooden toy was floating on the water and a stick with which the child played was found near one end of the hole.
Mrs. Scott had been working on her back porch most of the afternoon. She had a view of the side yard and the hole and large tank. She did not see the child and at no time had she or her son noticed any children playing on the south side of the house near the tanks and the excavation. When the weather was seasonable, children played croquet in the front yard of their home.
Mr. Holifield stated that the tanks were bright and shiny and on the day following the accident he noticed the sun shining on them, although he had never noticed them prior to the time his son was drowned.
There has been a diversity of opinion among the courts of various states concerning the recognition and the scope of the attractive nuisance doctrine. 38 Am.Jur.Sec. 142, p. 802; 65 C.J.S., Negligence, Sec. 29(1), p. 457. In Missouri, the doctrine has been given only limited application. Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623, 627. While it has not been restricted to 'turntable cases', it has been held that 'the 'attractive nuisance' doctrine will not be extended beyond the so-called 'turntable' cases, wherein it had its inception in this country.' Howard v. St. Joseph Transmission Co., 316 Mo. 317, 326, 289 S.W. 597, 601. See also 49 A.L.R. 1034; State ex rel. Kansas City Light & Power Co. v. Trimble, 315 Mo. 32, 285 S.W. 455, 49 A.L.R. 1047; State ex rel. W.E. Callahan Const. Co. v. Hughes, 348 Mo. 1209, 159 S.W.2d 251, 253. This does not mean that only a turntable could be an attractive nuisance, but it does mean...
To continue reading
Request your trial
-
Anneker v. Quinn-Robbins Co.
...v. Consumers Co., 334 Ill.App. 530, 79 N.E.2d 826; Plotzki v. Standard Oil Co. of Ind., 228 Ind. 518, 92 N.E.2d 632; Holifield v. Wigdor, 361 Mo. 636, 235 S.W.2d 564; Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E.2d 255; Dennis v. Spillers, 190 Okl. 311, 185 P.2d 465; Meyer v. General Elect......
-
Lockridge v. Standard Oil Co., Ind.
...ponds, pools, lakes, streams, reservoirs, and other bodies of water, do not per se constitute attractive nuisances.' Holifield v. Wigdor, 1951, 361 Mo. 636, 235 S.W.2d 564; McGuire, Appellant v. Carey, 1951, 366 Pa. 627, 79 A.2d 236; Maher v. City of Casper, 1950, 67 Wyo. 268, 219 P.2d We a......
-
Seiferth v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, 15529.
...the general rule of nonliability of a property owner for negligent injury to a trespasser, is present. See, e. g., Holifield v. Wigdor, 361 Mo. 636, 235 S.W.2d 564 (1951); Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623 (1939); Buddy v. Union Terminal Ry., 276 Mo. 276, 207 S.W. 821 (1918). No......
-
Patterson v. Gibson
...Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623; Lentz v. Schuerman Bldg. & Realty Co., Banc, 359 Mo. 103, 220 S.W.2d 58; Holifield v. Wigdor, 361 Mo. 636, 235 S.W.2d 564; and Morrison v. Phelps Stone Co., 203 Mo.App. 142, 219 S.W. 393. The cases of Zuber v. Clarkson Const. Co., 363 Mo. 352, ......