Opinion
February 20, 1951.
Appeal from the Circuit Court for Clay County, Claude Ogilvie, J.
Evans Evans, Jacksonville, for appellant.
Mathews Mathews, Jacksonville, for appellee.
Affirmed.
SEBRING, C.J., and THOMAS, ADAMS, HOBSON and ROBERTS, JJ., concur.
TERRELL and CHAPMAN, JJ., dissent.
Involved on this appeal is the question of whether or not plaintiff-appellant's second amended complaint (declaration) states a cause of action. The Court below held that it did not and, accordingly, entered a summary or final judgment for the defendant-appellee on motion to dismiss. The taproot of the controversy centers around the attractive nuisance doctrine. Pertinent allegations of the second amended complaint are viz.:
"I. That on or about the 11th day of February, A.D. 1950, and for a long time, to-wit, more than six months prior thereto, defendant was in possession of and had control of a wire used for the transmission of electricity, which wire extended along a public highway known as Ferry Road in Clay County, Florida.
"II. That said wire was used for the transmission of a high and dangerous current of electricity.
"III. That a farm known as the Baxley Farm adjoined and extended along said public highway. That on the 11th day of February, A.D. 1950, and for a period of many years prior thereto, a holly tree grew on said Baxley Farm and immediately next to the right of way of said public highway, and that the branches of said tree extended into and over said public highway. That said tree was of great height and had numerous limbs and low hanging branches. That on said date and for a period of several months prior thereto said tree was covered with red berries. That said tree was located in a thickly settled neighborhood and that the said highway was frequented by children of immature age and discretion. That the defendant knew, or by the exercise of reasonable care and caution should have known that the said holly tree in the winter time of the year, and at the time hereinbefore alleged, would be colorful with berries and would be attractive to children and that children of immature age, discretion and experience would in following a child's instincts, be lured and tempted to climb said tree when so covered with berries, as was said tree at the said time. That for a long time prior to said time when said holly tree was so covered with said berries, children of immature age and discretion were lured and tempted to climb and did climb said tree when said tree was so covered with berries, as was said tree at the said time.
"IV. That defendant's said wires extended through the said tree and were in contact with the branches thereof.
"V. That the defendant, on the date aforesaid, and for a long time to-wit, many months prior thereto, well knowing that the said holly tree was so situated and growing as to be attractive to children, luring and tempting them to climb, carelessly and negligently strung, and suffered and permitted to be strung and passed through and near the limbs, branches and foliage of said tree uninsulated wires carrying a high and dangerous voltage and carelessly and negligently failed to take any precaution or exercise any due care and caution to prevent children of tender years and immature discretion from climbing said tree to pluck the branches therefrom; and carelessly and negligently failed to exercise due care and caution to prevent injury to children as might climb said tree by providing proper safeguards against contact with said electrical wires by said children, and carelessly and negligently failed to prune said tree so as to keep the limbs and foliage of said tree away from said wires as by the exercise of due care and caution the defendant should have done.
"VI. That at all times herein mentioned plaintiff was a child of tender years, to-wit, 11 years of age, and was immature and wholly ignorant of the danger lurking in and near the said tree, and was not aware that said wires were uninsulated and did not understand or appreciate the danger arising from the presence of said wires.
"VII. That on said date, to-wit, February 11th, 1950, and for a long time, to-wit, many months, prior thereto, such children were accustomed to climb said tree both from said highway and from said farm, which fact the defendant knew or in the exercise of reasonable care should have known, and that on said date, to-wit, February 11th, 1950, plaintiff was upon said Baxley Farm as the guest of the owner thereof, and that on said date the plaintiff was attracted and lured to climb the said tree by the presence of the said colorful berries thereupon, and climbed the said tree for the purpose of plucking branches therefrom and in so doing came in contact with the high and dangerous current of electricity of the said defendant's wires passing through and among the branches and foliage of said tree aforesaid, and that thereby a high and dangerous current of electricity was caused to enter the body of the plaintiff.
"VIII. That by reason of the premises plaintiff was painfully, seriously and permanently injured in and about his head, body and limbs, by reason whereof plaintiff has suffered great pain and anguish and will continue so to suffer for a long time, to-wit, permanently; and also by reason of the premises plaintiff was rendered incapable of performing his duties and services by him to be done and performed and will continue so to be disabled for a long time, to-wit, permanently.
"IX. Wherefore, plaintiff demands judgment against defendant in the sum of $30,000.00.
"Plaintiff demands trial by jury."
In the case of Kasanof v. Embry-Riddle Co., 157 Fla. 677, 26 So.2d 889, 891, when considering the sufficiency of a declaration to state a cause of action, we in part said: "It is established law that a declaration need not set out specific facts constituting negligence but allegations of sufficient acts or omissions causing injury, coupled with averments that they were negligently done or omitted, will be sufficient. See American Dist. Electric Protective Co. v. Seaboard Air Line R. Co., 129 Fla. 518, 177 So. 294. A declaration based on a charge of simple negligence is sufficient if it alleges an act or omission causing the injury and further alleges that such act or omission was negligently done or omitted to be done. Jackson v. Edwards, 144 Fla. 187, 197 So. 833; Dunn Bus Service Inc. v. Wise, 140 Fla. 341, 191 So. 509; Potts v. Mulligan, 141 Fla. 685, 193 So. 767."
It is alleged that the holly tree was of great height with low hanging branches and covered with red berries and its branches extended into and over the public highway. The tree was located in a thickly settled neighborhood along the highway frequented by children of immature age and discretion. The holly tree was covered with red berries, which tempted and lured children of immature age and discretion to climb the tree and get the red berries. The defendant knew or by the exercise of reasonable care and caution should have known that the holly tree with the low growing branches and the red berries grown thereon would be attractive to children to climb. The defendant carelessly and negligently strung through the foliage, limbs and branches of the holly tree uninsulated wires carrying high and dangerous voltage of electricity, and in so doing negligently failed to provide proper safeguards against contact with uninsulated electrical wires by children of immature years and discretion attracted and lured to climb the holly tree to obtain the colorful or red berries. It is our view and conclusion that the allegations of negligence, when considered as a whole, are sufficient to bring the cause within the rule as enunciated by us in Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 41 A.L.R. 1323. See Bagdad Land Lbr. Co. v. Boyette, 104 Fla. 699, 140 So. 798; May v. Simmons, 104 Fla. 707, 140 So. 780; Peters v. City of Tampa, 115 Fla. 666, 155 So. 854; Atlantic Peninsular Holding Co. v. Oenbrink, 133 Fla. 325, 182 So. 812; Johnson v. Wood, 155 Fla. 753, 21 So.2d 353; Allen v. William P. McDonald Corp., Fla., 42 So.2d 706; Newsby v. West Palm Beach Water Co., Fla., 47 So.2d 527.
I would reverse the judgment entered below.
TERRELL, J., concurs.