Hollinghead v. Carter Oil Company, 15349.

• Decision Date: 04 May 1955
• Docket Number: No. 15349.,15349.
• Parties: James D. HOLLINGHEAD, Appellant, v. The CARTER OIL COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

221 F.2d 920 (1955)

James D. HOLLINGHEAD, Appellant, v. The CARTER OIL COMPANY, Appellee.

No. 15349.

United States Court of Appeals Fifth Circuit.

May 4, 1955.

M. B. Montgomery, P. Z. Jones, Jackson, Miss., Franklin Evans, Butler, Ala., Barnett, Jones & Montgomery, Jackson, Miss., of counsel, for appellant.

P. H. Eager, Jr., Jackson, Miss., Forrest M. Darrough, Harry L. Arnold, Tulsa, Okl., Watkins & Eager, Jackson, Miss., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment of the trial court sustaining the defendant's motion for summary judgment in an action by appellant for the wrongful death of his fifteen year old son.

The facts are relatively simple, and we find that the trial judge correctly decided that there was no genuine issue of fact established by the pleadings and affidavits and the summary judgment was proper.

Plaintiff's son, Obie Hollinghead, a youth fifteen years of age, accompanied by his eight year old brother, was out hunting possums after dark on land leased by the appellee for its crude oil storage tanks; Obie was carrying a lighted acetylene lamp in his hand; the two boys came to the tank in question, which had a staircase up its side; there were no gates or fences and no chain across the stairs; nor were there any warning signs on the property; Obie mounted the stairs and presumably looked into the top of the partially filled tank, which exploded and caused his death. Appellee's foreman deposed that the hatch or opening in the top of the tank had been firmly closed and that it required considerable force and effort to open it against a strong spring. All of these facts were placed before the court in the form of affidavits which also showed that the owner of the land on which the tanks were placed made no objection to the presence of hunters or others who frequented the area; that the deceased had previously climbed the tank in the daytime and that this was known to appellee's employees.

This action was brought under the applicable Alabama statute.¹ It is, of course, conceded that the law to be applied is the Alabama law. Under the Alabama cases it is clear that the "attractive nuisance" doctrine does not apply.² If, upon consideration of the affidavits submitted by the parties it was clear that no genuine issue of fact was presented, the trial court properly granted the motion for summary judgment.³ The office of the motion for summary judgment is concisely stated by Judge Holmes, of this Court, in Creel v. Lone Star Defense Corporation, 171 F.2d 964, where at page 969 he said: "The intention of this rule is to put an end to useless and expensive litigation if there is no genuine issue as to any material fact."

Appellant seeks to make a jury issue as to negligence and as to the degree of care required of appellee under the circumstances. He relies strongly on the fact that the lands on which the tanks were built belonged to others who permitted deceased and others to roam at will over them and to hunt and fish on them. He seeks to draw from this, and the fact that there was open access to the tanks and no one had prohibited climbing the stairs previously, the conclusion that Obie was an invitee or licensee, but also contends that even if he were a mere trespasser there was a duty on the Carter Oil Company not wantonly to injure him.

The weakness of this argument is that there is no fact or circumstance which would permit a jury to infer that the act of Obie in climbing up the side of this tank at...