Patsy Oil & Gas Co. v. Odom
| Decision Date | 26 September 1939 |
| Docket Number | Case Number: 28999 |
| Citation | 1939 OK 341,186 Okla. 116,96 P.2d 302 |
| Court | Oklahoma Supreme Court |
| Parties | PATSY OIL & GAS CO. v. ODOM |
¶0 1. NEGLIGENCE-- "Attractive nuisance" doctrine--Wanton negligence in not exercising ordinary care to prevent injury to trespassing children on dangerous premises.
The "attractive nuisance" doctrine as recognized in this state may be invoked in a case where the child injured by reason of an attractive nuisance is what is termed a technical trespasser. If the premises are inherently dangerous, or if there is a dangerous instrumentality thereon such as highly dangerous explosives, it is usually willful or wanton negligence not to exercise ordinary care to prevent injury to a person reasonably expected to be within range of such danger.
2. SAME--Wanton negligence in placing explosives in open locker in open unused building near residence of children.
It is willful and wanton negligence to place or store highly dangerous explosives such as dynamite caps in an open locker, in an open, vacant, and unused building in close proximity to a residence where children of tender years reside, when, by reason of surrounding circumstances and absence of other suitable place for the children to play, any person of ordinary intelligence would expect such children to enter such building and play.
3. MASTER AND SERVANT--PRINCIPAL AND AGENT--Liability for tortious acts of servant or agent though acting in excess of authority conferred.
The general rule is that a master or principal may be liable for the tortious acts of his servant or agent where such acts are incidental to and in furtherance of the business of the master or principal though the servant or agent may have acted in excess of and beyond the authority conferred upon him, and do not arise wholly from some external, independent, and personal motive on the part of the servant to do the act on his own account.
4. NEGLIGENCE--Action for personal injuries by child--Fault or negligence of parent or custodian not imputable to child.
In an action by an infant of tender years, in its own right, for personal injuries arising from negligence of another, the fault or negligence of parent, or a third party having custody of such infant, contributing to such injury cannot be imputed to the child. Atchison, T. & S. F. R. Co. v. Calhoun, 18 Okla. 75, 89 P. 207.
5. APPEAL AND ERROR--Objections to instructions--Duty to request instruction More fully covering issues.
A judgment will not be reversed for failure of the trial court to instruct upon any particular phase or issue or failure to define certain terms or phrases used in the instructions, unless request is made at the trial for such instructions, or definition.
Appeal from District Court, Pontotoc County; Tal Crawford, Judge.
Action by Donald Odom, a minor, by M. L. Odom, his father, guardian and next friend, against the Patsy Oil & Gas Company. Judgment for plaintiff, and defendant appeal. Affirmed.
Busby, Harrell & Trice and Hobart G. Orton, for plaintiff in error.
Grigsby & Andrews, for defendant in error.
¶1 This is an appeal seeking reversal of a judgment of the district court of Pontotoc county in favor of defendant in error, hereinafter referred to as plaintiff, against plaintiff in error, hereinafter referred to as defendant, in an action to recover damages for personal injury.
¶2 On and prior to July 23, 1937, defendant was operating an oil and gas lease near Oil Center in Pontotoc county. It had been operating oil wells on said lease for about five years. Lee Campbell, William Thomas, and Ray Young were employed by defendant in operating said lease. Lee Campbell, with his wife and children, lived in a house located on said lease. He had three small children about 5, 9, and 11 years old.
¶3 Plaintiff, Donald Odom, then about 91/2 years old, lived with his parents some three miles from where Campbell lived. Donald is a nephew of Lee Campbell's wife.
¶4 On July 22, 1937, Lee Campbell, his wife, and children were visiting at the home of M. L. Odom, plaintiff's father. That evening plaintiff went home with his uncle, Lee Campbell, and his family to spend the night. On the morning of July 23, 1937, plaintiff, Donald Odom, and Billy Joe Campbell, then about nine years old, son of Lee Campbell, while playing in an old engine house, located some 40 or 50 feet from the house in which Lee Campbell lived, found four dynamite caps. Not knowing what the dynamite caps were, they took them out, went some distance from the house, and when plaintiff applied a lighted match to one of the caps which he held in his left hand, the cap exploded and blew off the thumb, index and middle fingers of the left hand, and injured the third or ring finger.
¶5 He brought this action against the company to recover damages. Trial was had to a jury resulting in a verdict and judgment for plaintiff in the sum of $5,000, and defendant appeals.
¶6 The first proposition presented is that the evidence is insufficient to show negligence on the part of defendant.
¶7 Defendant asserts that unless the case comes within the "attractive nuisance" doctrine, the judgment should be reversed.
¶8 Plaintiff asserts that the "attractive nuisance" doctrine can be eliminated from the case, and the judgment should be sustained on the negligence of defendant alone.
¶9 Plaintiff in his petition alleges in substance the facts heretofore stated, and that the injuries so sustained were caused by the negligence and carelessness of defendant, in that defendant owned and maintained on said lease a small frame building located about 50 feet from the residence of Lee Campbell, which had been used for the storage of a "pulling unit," but which at the time was virtually empty except for a few pipe fittings, tools, etc.; that in one corner of said frame building there was a locker in which some tools, fittings, etc., were stored; that said building had been left open and the locker was likewise left open, so that said building and locker were at all times easily accessible to the children; that said children while at play in said building discovered some dynamite caps which had been placed therein, took them from said building, and plaintiff, not knowing the danger in handling the caps, touched a lighted match to one of the caps resulting in the explosion and the consequent injury, and it was further alleged:
"That by reason of the close proximity of the aforementioned building to the house in which the said Lee Campbell lived, and by reason of said building being unlocked, open and accessible at all times, as well as the locker unit therein being open and accessible at all times, and by reason of the nature of the building, and the various instruments kept therein, said building and its contents were very inviting, alluring, enticing and attractive for children of tender years to play in, and constituted an attractive nuisance, under the circumstances."
¶10 It will thus be seen that plaintiff bases his claim in part, at least, on the "attractive nuisance" doctrine.
¶11 The evidence discloses that some ten days or two weeks before the accident, Lee Campbell, the employee of defendant, placed the dynamite caps in the frame building.
¶12 Campbell testified in connection with the transactions as follows:
¶13 The boys both testified that they found the caps on the floor in the open locker.
¶14 Photographs showing the residence, the frame building in which the caps were found, and the immediate surroundings were introduced in evidence. They show the residence to be in an open space without shade trees, and substantially no place for children to play other than in the hot outdoors sunshine. The doors of the frame building are shown to have been open. In fact, one door was off entirely. The evidence further shows that the locker in which the caps were found was open or at least unlocked. The question is whether this case comes within the "attractive nuisance" doctrine.
¶15 Attention is called to the great divergence of judicial opinion concerning this doctrine and the application thereof.
¶16 The doctrine was discussed at length in City of Shawnee v. Cheek, 41 Okla. 227, 137 P. 724. Much of the discussion therein is devoted to the applicability of the doctrine as applied to mere omissions. The doctrine is there recognized as being applicable to omissions involving reckless disregard for the safety of merely technical and reasonably anticipated trespassers such as children of tender years, in respect to obviously and seriously dangerous artificial condition of premises.
¶17 It is said that even acts of omission may in such circumstances amount to wantonness on the part of a landowner. In the opinion it is stated:
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Bosh v. Cherokee Cnty. Bldg. Auth., Case Number: 111037
...could be acting within scope of employment even though he made an illegal u-turn while assigned to a task for employer]; Patsy Oil & Gas Co. v. Odom, 1939 OK 341, ¶28, 96 P.2d 302 [Employer held responsible for employee's taking dynamite caps to well even though employer had not authorized ......
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Rodebush By and Through Rodebush v. Oklahoma Nursing Homes, Ltd.
... ... In such an instance, an employer can be held liable even if the employee acts beyond the given authority. Patsy Oil & Gas Co. v. Odom, 186 Okl. 116, 96 P.2d 302 (1939) (employer held responsible for the employee's taking of dynamite caps to an oil and gas well ... ...
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Bosh v. Cherokee Cnty. Bldg. Auth.
...within scope of employment even though he made an illegal u-turn while assigned to a task for employer]; Patsy Oil & Gas Co. v. Odom, 1939 OK 341, ¶ 28, 186 Okla. 116, 96 P.2d 302 [Employer held responsible for employee's taking dynamite caps to well even though employer had not authorized ......
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