State ex rel. W. E. Callahan Const. Co. v. Hughes
Decision Date | 30 October 1941 |
Docket Number | 37561 |
Parties | State of Missouri at the relation of W. E. Callahan Construction Company, Relator, v. William C. Hughes et al., Judges of the St. Louis Court of Appeals |
Court | Missouri Supreme Court |
Rehearing Denied December 12, 1942. Motion to Transfer to Banc Overruled February 26, 1942.
Opinion of Court of Appeals quashed.
John F Evans for relator.
(1) In holding that an iron container, known as a "Cooper's Bucket," constituted an attractive nuisance, the opinion of the Court of Appeals is in conflict with controlling decisions of this court, which hold that the instrumentality must not only be inherently dangerous (in the sense that danger inheres in the instrumentality at all times, so as to require special precautions to be taken to prevent injury) but must also be so inherently attractive as to entice children into danger. Hull v. Gillioz, 334 Mo. 1227, 130 S.W.2d 623; O'Hara v. Laclede Gas Light Co., 244 Mo. 395, 148 S.W. 884. The opinion erroneously assumes that the iron bucket was an inherently dangerous instrumentality and that it constituted an attractive nuisance because of proof that children were in the habit of playing around it. It does not find that the buckets were so inherently attractive as to actually entice children on the premises, a necessary element of the doctrine. (2) The effect of respondents' opinion is to extend the doctrine to the point where it would become a jury question in every case as to whether or not a particular instrumentality was inherently dangerous and attractive to children. This is in conflict with a general principle of law enunciated in controlling decisions, that the attractive nuisance doctrine will not be extended beyond the principle of the turntable cases. Howard v. Transmission Co., 316 Mo. 317, 289 S.W. 597; Buddy v. Union Terminal, 276 Mo. 276, 207 S.W. 821; State ex rel. Light & Power Co. v. Trimble, 315 Mo. 32, 285 S.W. 455; Kelly v. Benas, 217 Mo. 1, 116 S.W. 557. (3) In holding that an iron container constituted an attractive nuisance, the opinion is in direct conflict with several controlling decisions on similar facts. Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; Rallo v. Construction Co., 291 Mo. 211, 236 S.W. 632; Witte v. Stifel, 126 Mo. 295, 28 S.W. 891; Buddy v. Union Terminal, 276 Mo. 276, 207 S.W. 821; Emery v. Thompson, 148 S.W.2d 479.
Clark M. Clifford and Lashly, Lashly, Miller & Clifford for respondents.
(1) On certiorari to review a judgment of the Court of Appeals the Supreme Court is concerned only with the question as to whether the judgment of the Court of Appeals is in "conflict" with previous controlling decisions of this court. State ex rel. South West Natl. Bank v. Ellison, 266 Mo. 423, 181 S.W. 998; State ex rel. Wabash Ry. Co. v. Ellison, 204 S.W. 396; State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 173, 300 S.W. 812; State ex rel. American School of Osteopathy v. Daues, 322 Mo. 991, 18 S.W.2d 487; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97; State ex rel. Public Serv. Comm. v. Shain, 342 Mo. 867, 119 S.W.2d 220. (2) This court in determining the question of conflict, must read and consider the decisions in light of the facts and questions presented. State ex rel. Gatewood v. Trimble, 333 Mo. 207, 62 S.W.2d 756. (3) On certiorari to review a judgment of the Court of Appeals for alleged conflict with decisions of the Supreme Court of Missouri, this court in determining that question will take as true and consider only the facts as found and stated in the opinion of the Court of Appeals. State ex rel. Dunham v. Ellison, 278 Mo. 649, 213 S.W. 459; State ex rel. St. Louis-S. F. Ry. Co. v. Reynolds, 289 Mo. 479, 233 S.W. 219; State ex rel. St. Louis-S. F. Ry. Co. v. Haid, 327 Mo. 217, 37 S.W.2d 437; State ex rel. Bennett v. Becker, 335 Mo. 1177, 76 S.W.2d 363. (4) The Court of Appeals, in holding that the evidence was sufficient to support the claim that an iron container, known as a "Cooper's Bucket," left by defendant (relator here) with an iron handle in an upright position and unlocked was (1) inherently dangerous and as located in a rock quarry situated in a populous city with six (6) other "Cooper's Buckets" of like size was (2) attractive to children, did not bring itself in conflict with the latest controlling decision of this court. This holding is not only in harmony with the latest controlling decision of this court but is in accord with the principles of law enunciated in earlier decisions of this court. Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623; Emery v. Thompson, 148 S.W.2d 479; Berry v. St. Louis, M. & S. E. Co., 214 Mo. 593, 114 S.W. 27.
Bradley, C. Hyde and Dalton, CC., concur.
Certiorari to quash the record and opinion of the St. Louis Court of Appeals in Street et ux. v. W. E. Callahan Construction Co. (Mo. App.), 147 S.W.2d 153. We are concerned only with whether or not the opinion is in conflict with the last controlling decision of this court on the point ruled, and for the facts we look solely to the opinion of the Court of Appeals. State ex rel. St. Louis-San Francisco Ry. Co. v. Shain et al., 345 Mo. 574, 134 S.W.2d 89, and cases there cited.
Donald Street, 9 years old, and son of Charles Street and wife, was killed while playing with other boys, around cooper's buckets at the stone quarry of the relator in southwest St. Louis. The father and mother obtained a judgment against relator for $ 6000 and that judgment was affirmed by the court of appeals, and the present cause in certiorari followed.
The cause in the court of appeals proceeded on the theory that the cooper's buckets at the quarry constituted an attractive nuisance likely to cause injury to children playing about them and that relator, in the exercise of ordinary care, should have so anticipated.
The court of appeals stated the facts as follows:
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