May 9, 1949.
Plaintiffs' petition alleged that their three-year old son had been fatally burned by a fire left burning on a lot where houses were being constructed by defendant. The petition was properly dismissed, as no actionable nuisance was alleged.
1. NEGLIGENCE: Nuisances: Unguarded Fire Not Nuisance. A fire left burning on a lot where houses were being constructed was not a nuisance, since it was a very temporary condition and the failure to put it out or guard it could only be casual negligence.
2. NEGLIGENCE: Nuisances: Death of Child: Unguarded Fire: Attractive Nuisance Doctrine Not Applicable: Petition Properly Dismissed. The attractive nuisance doctrine may not be extended to the death of a small child caused by a fire which had been left burning on defendant's lot upon which residences were being constructed. The child was either a trespasser or a mere licensee, and defendant owed him no duty to guard him from the fire. Plaintiffs' petition was properly dismissed by the trial court.
DOUGLAS, J., dissenting.
3. NEGLIGENCE: Nuisances: Death of Child: Unguarded Fire: Attractive Nuisance: Petition Improperly Dismissed. The case should be tried to develop the facts fully in order to determine whether the application of the attractive nuisance doctrine should be re-examined in view of present living conditions in densely populated urban areas.
Appeal from Circuit Court of City of St. Louis: Hon. William B. Flynn, Judge.
Boedeker and Weil and Wayne C. Smith, Jr., for appellants.
(1) All reasonably prudent persons must so use their property so as not to unreasonably injure others. Davoren v. Kansas City, 308 Mo. 513, 273 S.W. 401; Wittee v. Stifel, 126 Mo. 295, 28 S.W. 891. (2) Landowner owes duty to licensee not to create, by landowner's active negligence, a condition or thing that is inherently dangerous at a place on private property where he knows, or should know, the licensee will come in contact therewith, not realizing said danger, and thereby be injured. Eisenberg v. Mo. Pac. Ry. Co., 33 Mo. App. 85; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1. (3) Appellants' petition alleges facts that constitute deceased a licensee, and further alleges active negligence on part of defendant in creating a condition inherently dangerous at a place where immature children were accustomed to play, and that defendant negligently permitted said dangerous condition to exist and failed to guard said children from said danger, and as a proximate result thereof deceased was burned and caused to die. The petition thus states a cause of action and it was error to sustain the motion to dismiss Count One. Davoren v. Kansas City, supra; Dutton v. City of Independence, 227 Mo. App. 275, 50 S.W.2d 161; Brown v. City of Marshall, 228 Mo. App. 586, 71 S.W.2d 856. (4) Where the presence of immature children on private property is known and permitted, the owner of property must exercise greater care than towards persons of mature years. 38 Am. Jur., Negligence, sec. 118, p. 779; Tucker v. Draper, 62 Neb. 66, 86 N.W. 917; Brown v. City of Marshall, supra. (5) To lease exposed and unguarded, on accessible premises, a dangerous article or thing at a place where a defendant knows, or should know, that immature children are likely to come into contact therewith and be injured is negligence for which defendant is responsible; appellants' petition pleads facts bringing this rule into existence, and it was error to dismiss Count One of appellants' petition. Kansas City ex rel. Barlow v. Robinson, 322 Mo. 1050, 17 S.W.2d 977; Diehl v. A.P. Green Fire Brick Co., 299 Mo. 641, 253 S.W. 984; Alligator Co. v. Dutton, 109 F.2d 900. (6) Appellants' petition states a cause of action based on defendant's negligence, for which appellants may recover independent of the provisions of the Wrongful Death Statute of Missouri, and it was error to dismiss Count Two of appellants' petition. Evans v. Farmers Elevator Co., 347 Mo. 326, 147 S.W.2d 593; Oliver v. Morgan, 73 S.W.2d 993. John S. Marsalek and Moser, Marsalek, Carpenter, Cleary Carter for respondent.
(1) Plaintiffs do not allege that their son was attracted to or induced to go upon defendant's premises by the fire, or by anything on defendant's premises. The petition is completely silent as to the circumstances under which he went upon the property, and alleges no explanation for his presence there. The petition fails to describe a cause of action under the attractive nuisance doctrine. State ex rel. Callahan Construction Co. v. Hughes, 159 S.W.2d 251; Emery v. Thompson, 148 S.W.2d 479; Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623. (2) Plaintiffs in their brief expressly disclaim any right of recovery upon the forementioned legal theory. Under such circumstances, the attractive nuisance doctrine is out of the case. Ford v. Rock Hill Quarry Co., 341 Mo. 1064, 111 S.W.2d 173; Emerson v. Mound City, 26 S.W.2d 766; Harshaw v. St. L., I.M. S.R. Co., 173 Mo. App. 459, 159 S.W. 1. (3) In behalf of plaintiffs, it is contended in their brief that their son was a licensee on defendant's property. The petition does not allege that he came onto the property by virtue of anything done or not done by defendant, or that he was there by reason of any matter of interest or benefit to the defendant. Whether, under the petition, he be considered a mere licensee or a trespasser, except where the attractive nuisance doctrine applies the rule is that "volunteers, bare licensees and trespassers take the premises for better or for worse, as they find them, . . . the owner being liable only for spring guns, or other hidden traps intentionally put out to injure them, or any form of wilful, illegal force used toward them." Ford v. Rock Hill Quarry Co., 341 Mo. 1064, 111 S.W.2d 173; Kelly v. Benas, 217 Mo. 1, 116 S.W. 557; State ex rel. Callahan Const. Co. v. Hughes, supra; Emery v. Thompson, supra; Smith v. Jacob Dold Packing Co., 82 Mo. App. 9. (4) The foregoing rule has been applied to deny recovery in many cases where the general circumstances alleged were the same as in the present case, and the danger of injury to children coming on the premises was far greater than in the case of the smoldering fire alleged in the petition. Moran v. Pullman Co., 134 Mo. 641, 36 S.W. 659; Overholt v. Vieths, 93 Mo. 422, 6 S.W. 74; Rallo v. Heman Construction Co., 291 Mo. 221, 236 S.W. 632; Barney v. Hannibal St. J.R. Co., 126 Mo. 372, 28 S.W. 1069; Buddy v. Union Terminal R. Co., 276 Mo. 276, 207 S.W. 821. (5) Courts in other jurisdictions, following the same general rules applied by this court, hold that the owner of private property is not liable for injury to a minor child who comes upon the property without invitation and is burned by a fire maintained thereon by the owner. Zaia v. Lalex Realty Co., 261 A.D. 843, 25 N.Y.S.2d 183; Erickson v. Great Northern Ry. Co., 82 Minn. 60, 84 N.W. 462; City of Harlan v. Peaveley, 224 Ky. 338, 6 S.W.2d 270; Peck v. Adomatis, 256 Mich. 207, 239 N.W. 278; Dunbar v. Olivieri, 97 Colo. 381, 50 P.2d 64; W.F. Bradley Lumber Co. v. Crowell, 28 Ala. App. 12, 178 So. 66. (6) The cases upon which plaintiffs rely involve injuries to children by dangerous conditions or instrumentalities maintained by defendant on property owned by others. The rule relating to trespassers and licensees upon which we rely was not available in favor of the defendants in said cases. Plaintiffs' cases have no application in a case like the present, where the trespasser rule is available as a defense. Godfrey v. Kansas City L. P. Co., 299 Mo. 472, 250 S.W. 233; Williams v. Springfield Gas Elec. Co., 274 Mo. 1, 187 S.W. 556; Smith v. Jacob Dold Packing Co., supra. (7) The second count of the petition is based upon the same facts as the first, with respect to the circumstances under which the injury occurred, and fails to state a cause of action for the reasons above stated. Authorities under previous points.
This is an action for $15,000.00 damages for wrongful death of plaintiffs' three year old son, with a second count for $5000.00 for hospital and medical expense. On motion of defendant, plaintiffs' petition was dismissed with prejudice and plaintiffs have appealed. We think the ruling of the trial court was correct.
Plaintiffs' petition alleged the facts hereinafter stated. Defendant was the owner of property in a thickly populated area in the City of St. Louis, covering most of a block on which defendant was building residences. There were completed residences on the west side of this block, in one of which plaintiffs lived. Defendant's employees were in the habit of building fires on unfenced portions of the lots in the rear of residences being built by defendant on the south side of the block, east of and adjacent to the rear of plaintiffs' residence. There was no fence or obstruction between these partly constructed residences and the occupied residences. It was also alleged that defendant knew or should have known that small children of tender years and immature judgment were playing in, on and around the lots and property where defendant was erecting homes; that defendant knew or should have known that small children of tender years would be attracted to said premises for the purpose of gathering small pieces of lumber and other refuse for use in their play; that defendant permitted small children of tender years to so play and take materials from the rear of said buildings; that on or about the 4th day of December, 1946, defendant's employees caused a fire to be built on the rear of premises located at 6741 Dale Avenue, at a place where defendant knew, or could have known, that small children were accustomed to play; that defendant negligently permitted said fire to burn and smolder, unattended and unguarded, in an extremely dangerous condition, at a place where defendant knew, or should have known, that small children were likely to contact said smoldering fire and injure themselves; and that defendant's employees negligently failed to put out said fire before they left said premises on the 4th day of December, 1946. It was further alleged that as a direct and proximate result of such negligence, on that date, plaintiffs' son was caused to come in contact with said smoldering fire and hot ashes and was severely burned, causing his death.
Plaintiffs rely mainly on Davoren v. Kansas City, 308 Mo. 513, 273 S.W. 401. In that case, the City had made a fill across a ravine in improving a street. This created a large deep pond entirely on private property; and the City was warned "to have the pond drained on account of the danger to children and on account of the foul smell." Plaintiffs' sons were drowned in the pond by breaking through ice and recovery was allowed. However, allowance of recovery therein can only be explained on the ground of maintaining a dangerous nuisance. That was the theory of plaintiffs' counsel therein. [See summary of their brief, 308 Mo., l.c.  516.] That is the explanation of this case made in two subsequent decisions of this Court. [See Volz v. City of St. Louis, 326 Mo. 362, l.c. 367, 32 S.W.2d 72, l.c. 74; Bagby v. Kansas City, 338 Mo. 771, l.c. 780, 92 S.W.2d 142, l.c. 147.]
Plaintiffs quote the following statement in the Davoren case: "The legal obligation rests upon all who create or allow such dangerous conditions to use reasonable precautions to see that no unnecessary injury shall flow therefrom to others, and, if that duty is violated and injury results, the guilty party will be held liable in damages." This statement is also quoted in Brown v. City of Marshall, 228 Mo. App. 586, 71 S.W.2d 856, also relied on by plaintiffs, which was decided on the authority of the Davoran case. However, this statement, and other broad statements in the Davoren case, must be considered in connection with the law of dangerous nuisances upon the basis of which liability was imposed therein.
The fire in this case cannot come within the classification of nuisance. The fire was a very temporary condition; and the failure to put it out, or to guard it until it went out, could only be causal negligence under any circumstances. We discussed the distinction between nuisance and negligence in Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485; and pointed out that they are different kinds of torts. "not only in legal classification but in their essential features." We said: "`Negligence' is the failure to exercise the degree of care required by the circumstances", but that "a `nuisance' does not rest on the degree of care used, but on the degree of danger existing with the best of care." We further ruled that, while it is possible for the same act or omission to constitute negligence and also create a nuisance, "there must, however, be a danger (likely to result in damage) inherent in the thing itself, beyond that arising from mere failure to exercise ordinary care in its use, before the question of a nuisance can properly be submitted to a jury." Thus it is clear that the Davoren case is no authority for recovery in this case, in which the fire was upon defendant's own property and plaintiffs' son was not an invitee thereon.
Plaintiff does not claim that the attractive nuisance doctrine could be applicable to this case; and, of course, it could not be for reasons similar to those above discussed. Our decisions "limit the doctrine to instrumentalities and conditions which are inherently dangerous instead of applying it to conditions in which danger has been created by mere casual negligence under particular circumstances." [Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623.] This fire was wholly on defendant's own property and to reach it plaintiffs' son came there under circumstances which could make him no more than a licensee, if not a technical trespasser; and defendant, therefore, owed him no duty to guard him from the fire. [See Ford v. Rock Hill Quarries Co., 341 Mo. 1064, 111 S.W.2d 173; 38 Am. Jur. 779, § 118; For another smoldering fire case, see Smith v. Dold Packing Co., 82 Mo. App. 9.] Of course, if defendant had permitted the fire to escape beyond his premises we would have a different case. For that reason, other cases cited by plaintiffs are not in point. [Dutton v. City of Independence, 227 Mo. App. 275, 50 S.W.2d 161; Kansas City ex rel. Barlow v. Robinson, 322 Mo. 1050, 17 S.W.2d 977; Diehl v. A.P. Green Fire Brick Co., 299 Mo. 641, 253 S.W. 984; Alligator Co. v. Dutton, (8th C.C.A.) 109 F.2d 900.] The City of Independence case involved injury from a fall from the unguarded end of a culvert on a pathway in its street. This was a dangerous condition created by the City at a place where the Court held "plaintiffs' son was not a trespasser" and where "he had a right to be." In the other three cases, explosive or semi-explosive substances which did not appear to be dangerous (two involved dynamite caps) were left or abandoned in places accessible to and frequented by children; and apparently were not on premises owned by defendants therein. Abandoning or leaving dangerous explosives in an apparently harmless form under the circumstances of those cases is very different from burning ordinary waste materials  on defendant's own property as was done in this case.
We hold that defendant is not liable under the circumstances of this case.
The judgment is affirmed. All concur, except Douglas, J., who dissents in opinion filed.
DOUGLAS, J., Dissents, believing the case should be tried to develop the facts fully in order to determine whether the application of the doctrine should be reexamined in view of present living conditions in densely populated urban areas.