Kemp v. Doe Run Lead Co.

• Decision Date: 07 March 1933
• Docket Number: No. 22322.,22322.
• Citation: 57 S.W.2d 758
• Parties: KEMP et ux. v. DOE RUN LEAD CO.
• Court: Missouri Court of Appeals

57 S.W.2d 758

KEMP et ux. v. DOE RUN LEAD CO.

No. 22322.

St. Louis Court of Appeals. Missouri.

March 7, 1933.

Rehearing Denied March 21, 1933.

Appeal from Circuit Court, St. Francois County; I. N. Threlkeld, Judge.

"Not to be published in State Reports."

Action by Sam Kemp and wife against the Doe Run Lead Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Parkhurst Sleeth, of Bonne Terre, and Terry & Terry, of Festus, for appellant.

R. S. Roberts, of Farmington, and John Grossman, of St. Louis, for respondents.

McCULLEN, Judge.

This cause is before this court for the second time on appeal. The first trial in the court below resulted in a verdict and judgment for $2,500 in favor of plaintiffs. The trial court sustained defendant's motion for a new trial, whereupon plaintiffs appealed. In an opinion by Nipper, J., this court held that the trial court was correct in granting a new trial, on the ground that plaintiffs had failed to show any liability on the part of defendant. See Kemp v. Doe Run Lead Co., 34 S.W.(2d) 1002.

The second trial resulted in a verdict and judgment for plaintiffs in the sum of $5,000. From that judgment, defendant has appealed.

Following the former appeal, after the mandate of this court went down, plaintiffs filed an amended petition which alleged, in substance, that they are husband and wife and were the father and mother of Truman Kemp, a child of tender years; that defendant was engaged in the business of mining lead at River Mines, St. Francois county, Mo.; that it operated a mill where lead and lead ore were treated, and in connection therewith it maintained a body of water, or "slime pond," into which was thrown waste water from the treatment of the lead and lead ore; that plaintiffs lived one-half mile north of defendant's mill, and that all the ground and buildings lying between the mill and the slime pond and plaintiffs' house belonged to defendant; that on May 11, 1928, and for many years prior, plaintiffs were tenants of defendant, renting their home for a consideration; that in accordance with a custom, and an agreement had by plaintiff Sam Kemp with defendant, plaintiffs, with their family, had been permitted to use said home and all the surrounding territory of defendant for any and all legitimate purposes, and to use the roads connecting the town of River Mines and adjacent towns south of the mill and slime pond; that said purposes included the right of plaintiffs' children to play around, about, and on the ground lying between plaintiffs' home and the mill and slime pond, except such of defendant's property as was inclosed by fences or other barriers.

The petition further alleges that for a long time prior to May 11, 1928, plaintiffs' child, Truman, and numerous other children belonging to employees of defendant, who were living under an agreement similar to plaintiffs' agreement, used said ground as a playground, and had been permitted by defendant so to use it. It was alleged that the slime pond varied in depth from one foot to ten feet, and covered several acres of ground; that no guard, barrier, or fence had been placed around it to protect the children or to prohibit them from playing around or in the pond; that adjacent to the pond defendant placed large mounds of "chat" which had the appearance of sand; that on May 11, 1928, plaintiffs' infant son, while playing in and around the slime pond, was drowned, and that his death was caused by the carelessness and negligence of defendant in failing to place around said pond a guard, fence, barrier, or watchman to prohibit and prevent children and plaintiffs' son from playing there when it knew, or by the exercise of ordinary care could have known, that the pond was dangerous and not reasonably safe, and knew, or could have known, that children and plaintiffs' infant son had been permitted to play around and in said pond.

The answer of defendant was a general denial coupled with a plea of contributory negligence. The reply was in the usual form.

At the trial the evidence disclosed that defendant maintained the chat dump and pond in connection with its business, in obedience to an injunction issued by the circuit court of Butler county, Mo., wherein defendant was restrained from permitting slime or other similar materials from getting into the water courses of this state. The property outside of the chat dump and slime pond for a quarter of a mile on each side belonged to defendant.

Plaintiff Sam Kemp had been an employee of defendant for a number of years prior to the date of the death of his infant son. He lived in a house which he rented from defendant.

The slime pond was approximately one-quarter mile long, one-eighth mile wide, and about three-quarters of a mile in circumference, and of irregular shape. Chat piles were on all sides of the pond except the north side, where there was a hill about 150 to 200 feet high, which formed one of the sides of the pond. The chat piles formed the other three banks, or sides. The chat was principally on the south side of the pond and had the appearance of sand. The land around and about the pond, particularly that portion of it lying between the pond and plaintiffs' house, which was about one-quarter of a mile north of the pond, was wooded, gladey, full of ditches, rocks, and thorn bushes.

Plaintiff testified he could not see the water of the pond from his home because of the wild shrubbery, such as post oaks and thorn bushes. A "dim road" ran past the chat pile close to the pond where defendant, according to plaintiffs' testimony, "hauled stuff in and out, and people went in and out going out to see the pond." The "dim road" turned at that point away from the slime pond and ran back up the hill to the north. A path led from the road around the east side of the pond.

The body of plaintiffs' infant son was found in the southeast corner of the pond. The testimony shows that he came to his death by drowning. At the time of his death he was two years and ten months old.

There was no barrier or fence around the pond, and plaintiff Sam Kemp testified that during the period of about seven years of residence there he saw children playing thereabouts, sometimes three or four, sometimes up to eight, ten, or twelve children, several times during the summer. They would play in the chat, in the water, and at times would go in swimming or bathing.

Plaintiff Lovia Kemp testified to having seen children many times playing around, about, and in the pond during several years prior to her son's death, and also during the summer of 1928.

The important question involved in this case on this appeal is whether or not plaintiffs' infant son at the time he met his death was an invitee to whom defendant owed a duty to exercise ordinary care to keep its premises reasonably safe to avoid injuring him, which duty it negligently failed to perform, thereby causing his death.

On the former appeal plaintiffs' counsel argued and presented their case on the theory that the slime pond was an attractive nuisance within the doctrine of the line of cases called turntable cases. This court refused to apply the doctrine of the turntable cases, and held that under the evidence defendant was not liable.

It is now conceded by counsel for plaintiffs that the trial court and this court were both correct in holding that the evidence in the first trial failed to make a case for the jury. They contend, however, that by their amended petition they have changed the theory of their case and insist that plaintiffs' infant son was not a mere licensee or a trespasser, but that at the time of his death he was an invitee; that he was upon the premises where he met his death by the implied and express invitation of defendant, and that defendant therefore owed the duty to exercise ordinary care to avoid injuring him, which duty it failed to perform because it did not put up any guard, fence, or barrier, or did not have a watchman to prohibit and prevent children or plaintiffs' infant son from going into the pond.

To support this theory plaintiffs' counsel rely mainly upon a verbal agreement based upon a conversation between plaintiff Sam Kemp and defendant's land and employment manager, in which the manager, John A. Knowles, gave permission to plaintiffs' children to play anywhere on defendant's land where it was not fenced.

Defendant (appellant here) assigns numerous grounds of error. It is urged that the court should have sustained defendant's objection to the introduction of testimony on the ground that plaintiffs' amended petition failed to state facts sufficient to constitute a cause of action. We will discuss the sufficiency of the petition in connection with defendant's next point.

Defendant contends that the court should have sustained its demurrers to the evidence offered at the close of plaintiffs' case and at the close of the whole case.

In support of its contention on this point, defendant's counsel quote excerpts from the opinion of this court on the former appeal of this cause. It is true this court did hold unequivocally, under the evidence as shown by the record on the former appeal, that defendant was not liable. It must not be forgotten, however, that the first trial was based upon a petition which alleged that the pond in question was an attractive nuisance. This court, in rendering its opinion, only passed upon the case as it then appeared, and held that plaintiffs failed to make a case under that doctrine. The case as it now appears before us is upon an amended petition based upon an entirely different theory of the law.

It has been held that an opinion on a prior appeal is the law of the case unless the pleadings have been amended so as to introduce new issues, or the evidence on retrial is substantially different. It has also been held that where plaintiff at a second trial testifies contrary to his testimony on the first trial, a recovery is not necessarily...