McGill v. City of Laurel

• Decision Date: 12 April 1965
• Docket Number: No. 43451,43451
• Citation: 252 Miss. 740,173 So.2d 892
• Parties: Mrs. Elsie McGILL et al. v. CITY OF LAUREL et al.
• Court: Mississippi Supreme Court

Page 892

173 So.2d 892

252 Miss. 740

Mrs. Elsie McGILL et al. v. CITY OF LAUREL et al.

No. 43451.

Supreme Court of Mississippi.

April 12, 1965.

Melvin, Melvin & Melvin, Laurel, for appellants.

Bulter, Snow, O'Mara, Stevens & Cannada, Roger C. Landrum, John A. Crawford, Jackson, Welch, Gibbes & Graves, Walker, Dillard & Baldwin, Warner Beard, Jr., Deavours & Hilbun, Boyd, Holifield & Harper, Laurel, for appellees.

BRADY, Justice.

This is an appeal from a final judgment of the Circuit Court of the Second District of Jones County, Mississippi. Appellees herein filed demurrers to the amended declaration of appellants, which were sustained. It is from the order sustaining the demurrers that the appellants prosecute this appeal. However, no appeal is taken from the order sustaining the demurrer of the Mississippi State Highway Commission. Appellants are predicating their contention and arguments upon the sole question of whether or not their amended declaration stated a good cause of action. Appellees restrict their briefs in rebuttal to this one question presented by the briefs of appellants. The pertinent facts that are revealed by the pleadings, stated as tersely as possible, are as follows:

The appellees, named in the original declaration, demurred thereto and the appellants amended their declaration. The amended declaration was filed against the City of Laurel, Mississippi; R. G. Brown, Jr., and wife, Dorothy Brown, individually, and as partners doing business as R. G. Brown, Jr. and Company, of Louisville, Mississippi; J. B. Michael & Company, Inc.; Jett Drilling Company, Ins.; A. A. Bush and D. D. Bush, a partnership, doing business as A. A. Bush, Contractor; and James Wray Bush and Harry Bush, Co-Executors of the Estate of A. A. Bush, Deceased; and the Mississippi State Highway Commission. This appeal is prosecuted against all of the appellees save, as stated, the Mississippi State Highway Commission.

The dominant facts and the negligence charged in the declaration of the appellants are as follows:

(1) The appellants are the mother and sister of Jerry Winfred McGill, the deceased, who was drowned in a lake or pond located on property owned by the City of Laurel and allowed to become dangerous, or maintained in a highly dangerous and negligent manner.

(2) The deceased, Jerry Winfred McGill, was six years old at the time of his death.

(3) The lake was owned by the City of Laurel and had been dug or constructed in such a careless and negligent way that the sides of the bar pit were several feet high above the water; the east end of said pit was flat and easily accessible and approachable by children but from the opposite side thereto exit could only be made by scaling perpendicular walls. In other words, one would be trapped unless he was of mature age or a good swimmer.

(4) The other children and the deceased had been playing around the bar pit, using it for a swimming pool, which was known by the defendants.

(5) The said bar pit was attractive no children and would tend to entice children thereabouts to play and swim in it, and the defendants knew the tendency of children, especially boys, to go swimming in the lake or bar pit, and to play around the edges of the water, and knew, or should have known, it would be dangerous to children of the age of deceased, and that defendants negligently failed to remedy this situation.

(6) The condition of the bar pit was deceiving to the average mind, and especially to an immature mind, and defendants should have foreseen the danger to children playing about this bar pit and undertaking to swim therein. This bar pit was near several streets and a residential section in the suburban district in and around Laurel, where a great number of children lived and sought entertainment.

(7) The defendants knew this, and failed to erect any guards or warnings of the dangers whatsoever.

(8) On May 20, 1960 Jerry McGill, along with other boys, undertook to go swimming in the bar pit. After entering the lake, he was unable to scale the banks or to reach shallow water before drowning.

(9) The flow of water was changed to that the bar pit filled up and it was left that way by appellees, which appellants alleged to be a dangerous condition.

(10) The bar pit was filled with swimming equipment or floating timbers upon which boys could float, and with boats and springboards, and with marine life, which were attractive and easily accessible to children. Paths were nearby which were traveled by children and the general public, but appellees failed to fence the bar pit, or to warn or guard against any child getting drowned; this bar pit was owned by the City of Laurel, which knew, or should have known, the habits and inclination of boys to go swimming in a pond of this nature.

It is upon this declaration that appellants allege the responsibilities of appellees for the death of the deceased. The record discloses that after the circuit court sustained the demurrers filed by appellees, the appellants then made a motion to amend their declaration or, in the alternative, to be allowed an appeal. This motion was overruled by the court, but the court allowed, as it had to do, an appeal. Appellants concede that the paramount question now before this Court is: Did their amended declaration state a cause of action?

It is to be noted that two specific assignments of error were presented by appellants, the first being that the trial court erred in sustaining the demurrers of the appellees, and the second being that the trial court erred in refusing to allow appellants to amend their declaration. Since appellants did not argue or present any authorities to the court in support of the second error assigned, it was not necessary for appellees to reply thereto, nor is it necessary for this Court to pass upon the second error assigned since the appellants do not urge it or cite any authorities in support thereof. Newsom v. Newsom, 226 Miss. 696, 85 So.2d 221 (1956); E. L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350 (1936).

In passing, however, if the lower court had permitted appellants to amend the declaration as requested in their motion, we do not feel that this amendment would sufficiently bolster or strengthen the amended declaration as it is now before us, to state a cause of action, and we would still be faced with the basic question of whether or not the amended declaration stated a cause of action sufficient for submission to the jury. A careful consideration of the declaration clearly shows that appellants predicated their cause of action upon the doctrine of attractive nuisance or the turntable theory. In appellants' effort to fix liability for the child's unfortunate drowning while swimming in the bar pit, the declaration likewise established the fact that the deceased boy had entered the property owned by the City of Laurel without license, invitation, or other right, and for a definite purpose of his own, and that he was a trespasser at the time of his regrettable death. Initially, the legal principle proposed by appellants in their brief is generally not recognized by the majority of the courts of this country when applied to bodies of water, natural or artificial, as is stated in 65 C.J.S. Negligence Sec. 29(12) j, (1950).

The general inapplicability of the theory advanced by appellants and Mississippi's refusal to recognize its application to water hazards are found in Annotation, 8 A.L.R.2d 1259 Child's Drowning--Landowner's Liability section 2 (1949), from which we quote as follows:

'Since water hazards exist everywhere, the tendency even in jurisdictions which recognize the attractive nuisance doctrine under other circumstances, is to refuse to apply it to permit recovery for the drowning of a child. Thus, it has been consistently refused application in drowning cases in Alabama, Arizona, Colorado, Georgia, Iowa, Kentucky, Mississippi, Oklahoma, Oregon, South Dakota, Wisconsin, and Canada.'

The question of whether the lower court erred in sustaining the demurrers of the appellees is conclusively answered in the following cases: 'Vincent v. Barnhill, 203 Miss. 740, 34 So.2d 363 (1948); Bonhomie & H. S. Ry. Co. v. Hinton, 155 Miss. 173, 124 So. 271 (1929); McComb City v. Hayman, 124 Miss. 525, 87 So. 11 (1920); Thompson v. Illinois Cent. R. R. Co., 105 Miss. 636, 63 So. 185, 47 L.R.A.,N.S., 1101 (1913); Mackey v. City of Vicksburg, 64 Miss. 777, 2 So. 178 (1887). Therefore, for almost three-quarters of a century the attractive nuisance doctrine as to water has been consistently rejected by the supreme court of this state. In addition to these controlling decisions by this Court, there are decisions by other state supreme courts which are in perfect accord with the rule adopted by this Court, which will be hereinafter considered. The Mississippi rule is thus recognized by other authorities, as can be seen in 38 Am.Jur. Negligence sections 94, 109, 144, 147, 151, 152; likewise, in 8 A.L.R.2d pages 1254, 1259, 1287, 1288, 1298, 1299, 1300, 1361; also, 65 C.J.S. Negligence Secs. 29(8), 29(12) j.

All of these authorities clearly establish the fact that Mississippi follows the general rule with reference to attractive nuisance not applying to water hazards unless there be some differentiable fact or circumstance which will give this Court the authority for abrogating the general rule commonly recognized with reference to the attractive nuisance theory not applying to water hazards. Since there are numerous grounds of alleged negligence charged in the declaration, it is encumbent upon us to briefly consider all of the grounds and determine therefrom whether a cause of action against the appellees was sufficiently stated.

The case of Eades v. American Cast-Iron Pipe Co., 208 Ala. 556, 94 So. 593 (1922), is a case which is strikingly similar to the case at bar insofar as the facts and rule of law are concerned. It is a cynosure for the case at bar. The...