Levinski v. Cooper

• Decision Date: 06 December 1911
• Parties: LEVINSKI v. COOPER et al.
• Court: Texas Court of Appeals

142 S.W. 959

LEVINSKI v. COOPER et al.

Court of Civil Appeals of Texas. Austin.

December 6, 1911.

Rehearing Denied January 10, 1912.

Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Action by R. M. Cooper and others against J. Levinski. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Baker & Baker, for appellant. Allan Sanford and O. M. Weatherby, for appellees.

RICE, J.

This suit was brought by R. M. Cooper and wife, Lillie Cooper, appellees herein, against Levinski, appellant, to recover damages sustained on account of the death of their son, Herbert Cooper, a boy 12 years of age.

It was alleged that appellant owned and operated a natatorium in the city of Waco, on October 17, 1909, which contained a large swimming pool, which he advertised for the use of adults and children, and that children who went in swimming there would be looked after and cared for, and that appellees, relying thereon, permitted their son Herbert to go swimming in this natatorium, and that while so doing he slipped and fell into the pool, where he was drowned. The negligence alleged consisted in the failure of appellant to furnish a sufficient number of skilled attendants to protect the boy from danger while swimming in said pool, which is alleged to be a dangerous place. Appellant answered by general and special exceptions, general denial, and, further, that it was dangerous to swim in said pool, which fact was known, both by Herbert Cooper and appellees, and that they assumed all risk thereof; and, further, that Herbert Cooper, just before and at the time he was drowned, was playing upon the marble walk around the swimming pool, and while so doing slipped and fell, striking his head against the curbing of the pool, which so stunned him that he drowned in consequence thereof, and but for which he would not have drowned; and that it was a mere accident, which would have happened to any one under the same or similar circumstances. There was a jury trial, resulting in a verdict in favor of appellees for the sum of $1,000, upon which judgment was rendered, and from which this appeal is prosecuted.

From the evidence it appears that appellant, on the 17th of October, 1909, owned and was operating a natatorium in the city of Waco. The swimming pool was about 35 feet wide by 70 feet in length, ranging in depth from 3 to 7 feet. During the day of October 17th, the pool was open for the public, and a large number of people had gathered there, some of whom were onlookers, and many of whom were bathers, among whom was Herbert Cooper, a boy over 12 years of age, the son of appellees. Prior to this time, appellant had advertised this natatorium as being a suitable place for adults and children to bathe, stating that it was provided with sufficient attendants to protect the bathers from danger, which advertisement had been seen by the parents of said Herbert Cooper, and upon the strength of which he was permitted to visit the place on the day in question for bathing; and while there he became engaged in play with another boy, running around the edge of the pool, when he suddenly stumbled and fell into the pool, striking his head, either against the edge of the pool or a post, which apparently stunned him. The boy, though shown to have been a good swimmer, did not rise to the surface, and was within 8 or 10 minutes thereafter found at the bottom of the pool and promptly taken out, but all efforts to resuscitate him failed. It appears that there was one skilled and competent attendant on duty and in charge at the time of this occurrence. There were several other persons who, it seems, were also acting as attendants, but who were not regularly employed or paid as such, receiving as compensation their baths free. There is a conflict in the evidence as to the position of these respective parties, and what they were doing at the time of this occurrence. No bruises were shown about the head or face of the boy, but physicians testifying as experts say that while, in their opinion, his death did not occur from the fall or blow that his drowning, if rendered unconscious thereby, might have resulted therefrom. It was shown that Herbert Cooper was a stout, healthy boy of his age, was intelligent, kindly disposed, and was capable of rendering great service to his parents.

Numerous errors have been assigned, urging a reversal of the judgment, all of which need not be discussed. The first assignment questions the sufficiency of the evidence to support the verdict, in this: That appellant asserts that there was no evidence going to show that he was guilty of negligence in failing to provide a sufficient number of competent attendants to watch over the swimmers in the pool, or that the drowning of Herbert Cooper, or his death, resulted from any negligence of appellant; but, on the contrary, the undisputed evidence showed that the pool master, Potts, was a competent person, and that he alone was enough to guard said pool, and that in addition thereto there were a number of other watchmen, and that there was no evidence to show that the number was insufficient, or that any of them were incompetent. Since the case will be reversed for other reasons, we deem it improper to pass upon this assignment, and forego a discussion of the questions presented, merely holding that the evidence on this issue, while circumstantial in its character, was sufficient to require the court to submit the same for the determination of the jury, without indicating any opinion as to the sufficiency of the same to support a finding thereon.

For similar reasons, we overrule the second and third assignments, complaining of the failure of the court to instruct a verdict in behalf of the defendant.

During the progress of the trial, defendant was called to the stand by plaintiff's counsel, and asked the following question: "Isn't it a fact that you were so convinced that it was a dangerous place that you induced an indemnity company to make a bond for you?" This question was promptly excepted to by the defendant. The question was not answered. After a short discussion of its admissibility, at the request of counsel for appellant, the jury were retired. During their absence, the question of its admissibility was again and more fully discussed, the court holding that the question was inadmissible, and should not be answered, whereupon the jury were returned to the court; counsel for appellant renewing his objection, on the ground first stated, that the question was immaterial to any issue, was calculated prejudice the jury and influence a finding against him. The objection was sustained, and the court, addressing the jury, stated that the question propounded was not evidence, and that they must not consider it in arriving at their verdict. Nor should they allow said question to have any influence upon them in returning a verdict in the case. Counsel for appellees, as shown by the bill, said that, in his opinion, as gathered from the authorities, the question was not admissible in the general run of cases, but thought that it was for the purpose for which it was offered in this case. This remark was likewise excepted to by counsel for appellant.

The question, we think, was improper, and the court was correct in excluding it; but counsel for appellant insist that, notwithstanding the action of the court in so sustaining his objection, still the fact that the question was asked was so highly prejudicial to appellant's rights as that, within itself, it calls for a reversal of the case, citing in support of his contention Harry Bros. Co. v. Brady, 86 S. W. 616; Lone Star Brewing Co. v. Voith, 84 S. W. 1101; Trent v. Lechtman Printing Co., 141 Mo. App. 437, 126 S. W. 242, 243; Manigold v. Black River Traction Co., 81 App. Div. 381, 80 N. Y. Supp. 861; Lipschutz v. Ross (Sup.) 84 N. Y. Supp. 632. In the first case cited,...