Shank v. Peabody Co-op. Equity Exchange

• Decision Date: 14 May 1960
• Docket Number: No. 41801,41801
• Citation: 352 P.2d 41,186 Kan. 648
• Parties: Ernest SHANK, Surviving Father and next of kin of Alex Joe Shank (Revived in the name of Joseph E. Brock, Administrator of the Estate of Ernest Shank, Deceased), Appellant, v. PEABODY COOPERATIVE EQUITY EXCHANGE, a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 41

352 P.2d 41

186 Kan. 648

Ernest SHANK, Surviving Father and next of kin of Alex Joe Shank (Revived in the name of Joseph E. Brock Administrator of the Estate of Ernest Shank, Deceased), Appellant, v. PEABODY COOPERATIVE EQUITY EXCHANGE, a Corporation, Appellee.

No. 41801.

Supreme Court of Kansas.

May 14, 1960.

Syllabus by the Court.

Plaintiff brought this action to recover damages for wrongful death of his eleven-year-old son, based on the negligence of the defendant in maintaining an attractive nuisance and defendant's demurrer to plaintiff's amended petition was sustained. On appeal from that ruling the record is examined and it is held the allegations of the petition, when accepted as true and given the benefit of all reasonable inferences, were sufficient to withstand the demurrer and require submission of questions relating to defendant's alleged negligence in maintaining an attractive nuisance and contributory negligence on the part of the child as questions of fact.

Enos E. Hook, Wichita, argued the cause, and Sidney L. Foulston, John H. Gerety, and Sidney L. Foulston, Jr., Wichita, were with him on the briefs, for appellant.

John F. Hayes, Hutchinson, argued the cause, and Robert J. Gilliland, and C. W. Miller, Hutchinson, and David W. Wheeler and Edwin G. Westerhaus, Marion, were with him on the briefs, for appellee.

PARKER, Chief Justice.

Ernest Shank of Peabody brought this action for damages for the wrongful death of his minor son against the Peabody Cooperative Equity Exchange, a Corporation, doing business in that city, and perfected an appeal to this court from an order and judgment of the district court of Marion County sustaining a demurrer to his amended petition.

Sometime after perfecting his appeal Ernest died intestate. Thereafter this action was revived in the name of Joseph E. Brock, as the administrator of such decedent's estate, and later, on proper application, such fiduciary was substituted as appellant for purposes of proceeding with the appeal in this court.

The facts, which for purposes of testing the ruling on the demurrer must be accepted as true, appear in the amended petition. Omitting formal averments, surplus language and the prayer, pertinent portions of that pleading read:

'4. That Alex Joe Shank, the minor son of this plaintiff, was fatally gassed by cyanide gas on the 25th day of November, 1958, due to the carelessness, negligence and incompetence of the defendant, * * *

'5. That this plaintiff * * * alleges that at all times hereinafter mentioned the defendant, The Peabody Cooperative Equity Exchange, was * * * in possession of and had control, supervision or management of a metal warehouse, which was being used for the storage of wheat, located * * * in the City of Peabody, * * *

'6. That said * * * warehouse is located in an area in which are located business, industrial and residential buildings.

'7. That this plaintiff * * * alleges that during the day light hours of November 25, 1958, the defendant, * * * did administer to the * * * warehouse an amount of liquid cyanide gas for the purpose of killing rodents and insects which contaminate and destroy wheat; * * * defendant knew that said * * * gas was both toxic and lethal to all forms of life '8. * * * for a period of time prior, and more particularly during the period of construction and the subsequent loading of the said * * * warehouse, the said * * * warehouse was regularly, habitually and commonly used by the children of the City of Peabody, and more particularly Alex Joe Shank, as an attraction and a place to play on and in and about. Such use * * * was at all times well known to the defendant's officials, agents and employees.

'9. That the aforesaid use by the children * * * was entirely without objection on the part of the defendant and was with the knowledge and assent and tacit permission of the defendant's officials, agents and employees.

'10. That said * * * warehouse * * * at the time herein complained of was entirely open, unguarded, unenclosed by any fence, barricade or obstruction and there was no watchman to prevent children from going thereon and making the aforesaid uses thereof.

'11. That the plaintiff * * * alleges that for a period of time prior to the 25th day of November, 1958, the * * * warehouse so owned, maintained or controlled by the defendant * * * had been openly and notoriously used by the public, and particularly the children of the community and neighborhood for purposes not connected with the business of the defendant company.

'12. That * * * children were in the habit of entering upon the defendant's premises and playing upon and ascending the ladder to doors in said * * * warehouse, said doors being 19 feet and 10 inches above the ground, all of which the defendant knew * * * by the exercise of reasonable care.

'13. That * * * on the 25th day of November, 1958, between * * *8:00[186 Kan. 650] and 9:15 p. m., * * * Alex Joe Shank, being of the age of eleven years and being in the company of Johnny Skinner, a boy approximately the same age, while playing in the vicinity of the * * * warehouse * * * which was owned, controlled and maintained by the defendant * * * ascended a ladder affixed to the * * * warehouse * * * to the door, located 19 feet and 10 inches above the ground and at the Southwest Corner of said * * * warehouse * * * when said Alex Joe Shank stepping off of said ladder and unto a platform attached to said building and immediately in front of the door * * *, opened said door and upon breathing the toxic and lethal fumes of the cyanide gas became unconscious and fell forward through the open door into the * * * warehouse where he died because of the lethal cyanide gas.

'14. That the said accident and resultant death * * * was proximately caused by and was the result of the carelessness and negligence of the defendant:

'(a) In failing to anticipate and guard against the action of the minor * * * in climbing the ladder.

'(b) In failing to have an employee located on the defendant's property to keep children away from the * * * warehouse.

'(c) In failing to enclose the * * * warehouse and post adequate barricades and obstructions to prevent its use and accessibility by the minor, Alex * * *, and other small children, and its failure to post a watchman to prevent children from being attracted to and using as a place to play the said * * * warehouse.

'(e) In knowingly allowing small children to play about, open doors, and go into the * * * warehouse.

'(f) In failing to have a watchman around the * * * warehouse when the defendant knew * * * that small children played around said * * * warehouse, and more particularly after toxic and lethal cyanide gas had been released in the interior of the * * * warehouse.

'(g) In not taking any safety precautions of any kind to warn minor children or mature humans of the * * * cyanide gas installation * * * that said gas had the capability of killing all forms of human life.

'(h) In placing a highly toxic and lethal chemical into its * * * warehouse without giving notice thereof. * * *

'(i) In permitting and instructing its managers, agents * * * to place a toxic and lethal chemical into said * * * warehouse when said managers, agents, * * * were not properly instructed * * *

'(j) In not allowing sufficient time to expire between the time of placing a toxic and lethal chemical into its * * * warehouse and allowing and permitting humans to enter upon the premises.

'(k) In failing to provide a proper and sufficient ventilation system in its * * * warehouse.

* * *

* * *

'(m) In failing to notify or rope off the area around the * * * warehouse, post notices or otherwise warn the public * * * that a highly toxic and lethal chemical had been placed in its * * * warehouse.

'(n) In failing to securely fasten or lock all entrances in and to said * * * warehouse * * *, or to provide means of preventing access thereto.

'(o) In failing * * * to have available safety devices for the purpose of preventing accidents of this nature in its * * * warehouse.

'(p) In permitting and allowing humans to go into, upon or near its * * * warehouse when it knew * * * its * * * warehouse was extremely dangerous because of the toxic and lethal chemical used which could cause death and did result in the death of Alex. * * *

'(q) The establishing and maintaining of a place attractive to children well knowing that said place fraught with great hazard and danger to said children.

'15. That * * * defendant knew that the * * * gas which was used * * *, was a poisonous gas * * * and capable of killing human beings.'

Following the filing of the foregoing petition the defendant demurred thereto on the ground it did not state facts sufficient to constitute a cause of action in that the matters and allegations therein contained conclusively showed the decedent, Alex Joe Shank, was at all times material a trespasser, was of sufficient age and capacity to be not free from fault and was guilty of negligence which proximately caused or contributed to his death thereby barring plaintiff of any recovery.

After a hearing the trial court sustained the foregoing demurrer and this appeal followed.

In approaching questions raised by the parties in connection with the propriety of the ruling on the demurrer time and space will be saved by a brief reference to divers matters.

As against a demurrer all well-pleaded allegations of the amended petition, hereinafter referred to as the petition, must be accepted as true and appellant is entitled not only to the benefit of all facts thus pleaded but to all reasonable inferences that may be drawn therefrom (Galleher v. City of Wichita, 179 Kan. 513, 522, 523, 296 P.2d 1062).

This is what is known as an attractive nuisance case.

Historically, the attractive nuisance doctrine was recognized as a part of the law of this state in what was then known as the turntable cases, the first...