Shemper v. Cleveland

• Decision Date: 01 October 1951
• Docket Number: No. 37920,37920
• Citation: 212 Miss. 113,54 So.2d 215
• Court: Mississippi Supreme Court
• Parties: SHEMPER v. CLEVELAND.

Page 215

54 So.2d 215

212 Miss. 113

SHEMPER v. CLEVELAND.

No. 37920.

Supreme Court of Mississippi, in Banc.

Oct. 1, 1951.

T. J. Wills, Hattiesburg, for appellant.

Homer W. Pittman and Joe R. King, Hattiesburg, for appellee.

McGEHEE, Chief Justice.

On April 16, 1951, we affirmed a judgment for $10,000 in favor of the appellee herein, Richard Cleveland, a minor, for damages sustained by him because of the explosion of a forty millimeter anti-aircraft shell which he picked up on the unused portion of a public street adjacent to the junk yard of the appellant, Shemper & Company, at Hattiesburg, Mississippi, and the presence of which anti-aircraft shell, along with numerous others, were on the street right of way due to the negligence of said operator of the junk yard.

On May 16, 1951, this Suggestion of Error was filed, and after a consideration of the briefs filed in support thereof, we concluded to call for reply briefs thereto under a memorandum mailed to the attorneys for the appellee on July 10, 1951, to be directed in particular (1) to the question of whether or not it was error for the trial court to have submitted the Attractive Nuisance Doctrine to the jury, together with the issue of whether or not the appellant was guilty of actionable negligence as a tort feasor in allowing these dangerous explosives to be thrown into the unused portion of the public street adjacent to the junk yard, where, according to the proof, children had been accustomed to play; and (2) whether or not, assuming that it was error to submit to the jury the issue of liability on the theory of the Attractive Nuisance Doctrine, it was prejudicial to such an extent as to have affected the result of the trial.

We are indebted to the several attorneys of the respective parties for the very helpful and exhaustive briefs that have been submitted on these and other phases of the case.

A majority of the Judges are of the opinion that the Attractive Nuisance Doctrine is inapplicable to the case for the reason that the plaintiff, a boy thirteen years of age, did not go upon the premises of the defendant in finding and picking up the loaded shell on the street right of way but was merely attracted to a point nearby the property line by some aeroplane parts which he desired to look at for the purpose of ascertaining whether or not he would desire to purchase the same for use in making a miniature aeroplane, and when he reached a point near enough to look at the aeroplane parts he found several little piles of these discarded antiaircraft loaded shells on the street right of way, and for the presence of which shells, the jury was warranted in concluding, from the preponderance of the evidence, that the defendant was responsible. We all agree that the plaintiff not being on the premises of the defendant, either as a trespasser or otherwise, at the time he found and picked...