With no special desire to resurrect burnt ashes, but with a desire to dissent in this case for reasons apparent upon this record, we wish to make mention of Williams v. Gas Elec. Co.,274 Mo. 1, and Williams v. Gas Elec. Co., 187 S.W. 556. The latter is the Court of Appeals' opinion. Upon more mature reflection, I think that the case at bar is clearly distinguishable in facts. There is a vast difference between *Page 495 stretching uninsulated wires in a thickly populated city, and stretching them through a 205-acre pasture.
Our opinion in the Williams Case, 274 Mo. 1, supra, does not mention or discuss the "Attractive Nuisance" as a theory in the case. Reading our opinion one would not know that the plaintiff's theory of recovery was based upon that theory. Going back to the old files we find the following in plaintiff's petition:
"Plaintiff further says that defendant's said electric light wires extended through the branches of said tree and were concealed by its foliage, and that said wires carrying a voltage of electricity deadly to human life were not sufficiently nor properly nor carefully insulated, nor covered nor protected, and that the defendant negligently and unlawfully operated the said wires within a foot of and dangerously and unlawfully near the said platform and the said house in the condition aforesaid; and that on May 9, 1915, the defendant knew of the said dangerous condition of its said wires, or by the exercise of ordinary care could have known that its said wires were uncovered, uninsulated and unprotected in time to have properly and safely insulated them before plaintiff's injury therefrom; and that on and priorto May 9, 1915, the defendant knew or by the exercise of ordinarycare, could have known, that the said house and the said treewere attractive to children to play and that children did playthere."
The italics are ours. Our opinion is bottomed upon a theory of negligence independent and distinct from the doctrine of the attractive nuisance. Had our opinion discussed the doctrine of attractive nuisance, it would have been in line with plaintiff's petition, and would have been at once noted by members of the court. But the case is so clearly distinguishable from the case at bar, that we need not discuss it further, than to say that we believe the majority opinion of the Court of Appeals is correct. First, because the plaintiff having planted his right to recover upon that character of negligence denominated *Page 496 the "attractive nuisance," and secondly because the Temple Case,89 Miss. 1, is an attractive nuisance case, and in adopting its theory of attractive nuisance, Division One of this court in the Williams Case, supra, contravened many Missouri cases without even mentioning them, or mentioning the fact that the petition in the case invoked the doctrine of attractive-nuisance cases. The reporter so considered the Temple Case, when he wrote:
"An electric light company is liable for injuries sustained by a child who climbed into a tree through the branches of which its uninsulated wire, causing the injury, extended, where the branches were so located as to be attractive to children and provoke their instinct to climb."
The reporter of the court took this practically from the opinion, wherein WHITFIELD, J., speaking of the complaint or petition in that case said, at page 7:
"The declaration shows that the tree in which this boy was injured, by contact with an uninsulated wire, was an oak tree, a little tree abounding in branches extending almost to the ground — just such a tree as the small boys of any community would be attracted to, and use, in their play."
So that in our opinion (274 Mo. 1) we have adopted from Mississippi, a doctrine of the "attractive-nuisance" or "turn-table" rule which has been condemned by a long line of our cases. This court has, both in Division and In Banc, refused to extend the rule.
I. In Kelly v. Benas, 217 Mo. 1, l.c. 13, is a review of all previous cases. In this case LAMM, P.J., sounded the warning against such a rule as is adopted in the Temple Case in Mississippi, in this language:
"If the old channel of the law is to be quite changed by the application of the new doctrine automatically and without discrimination, if sentimental considerations (however elevated and tender) are to usurp the place of cold and calm reason as the foundation for rules of law, then the floodgate now damming back liability will be *Page 497 raised letting in strange and deep waters for the landowner to struggle with. Not only will he be liable for boys drowned while swimming in his stock pond (the idea of swimming being alluring to a boy), for those who fall into uncovered wells, cisterns and cellars (the notion of playing on the brink of such being a boyish one), for children who are suffocated while playing in piles of sand accumulated for building purposes or in sliding down stacks of straw unscientifically piled and exposed, but he may be muleted in damages for injuries to his neighbors' children, who, romping in his haymow, without his invitation, break their bones by sliding down his hay chute, or those who, playing in his rock quarry, are hurt. Shall he fence against adventurous, trespassing boys? Almost as well suggest `that he build a wall against birds.' If he is held to liability for injury to the children of Jones because of the way he piles his lumber, by the same token, as to Brown, liability would be fastened on him for the way he piles his stones, his bricks, his corn in pens, his hay ricks and his cord wood on his private grounds — in fact, as has been pointedly said, every landowner will be liable for injuries to his neighbor's children under the new doctrine except the neighbor himself. We cannot well write the law that way."
This court, in both Divisions, has observed this warning since the Kelly Case, as we had with one or two exceptions prior thereto. We have turned our face against extending the attractive-nuisance doctrine. The more recent ones we cite. Others will be found cited therein.
By Court in Banc: Rallo v. Heman Construction Co., 291 Mo. 221, l.c. 226; State ex rel. v. Ellison, 281 Mo. l.c. 671. By Division One: Kelly v. Benas, 217 Mo. 1; O'Hara v. Gas Light Co., 244 Mo. l.c. 405. By Division Two: Buddy v. Railroad, 276 Mo. 1. c. 284 and 288.
II. The foregoing suffices for the Williams Case. The present case is so different in evidential facts and *Page 498 the place of accident, that we need not have mentioned the Williams Case at all had it not adopted the views of another state upon the "turn-table or attractive-nuisance cases" which contravenes such a long line of Missouri cases. The states are divided upon the "turn-table" rule, (1) some refuse to recognize it at all (2) some recognize it to a limited extent — Missouri is in this class — and (3) others have extended it to very wide limits, of which latter class is the State of Mississippi, from whence comes the Temple Case.
In Law Series 26, p. 32, the Bar Bulletin of the University of Missouri, will be found a collection of cases of interest, showing the three classifications of the states.
In its very latest case the United States Supreme Court has adopted the limited application of the "turn-table" or "attractive-nuisance" rule. [New York, N.H. H. Ry. Co. v. Fruchter, 43 Sup. Ct. Rep. 38.] In this case, Fruchter, a boy of eight years climbed up the trestle work of a bridge and came in contact with an uninsulated wire of the defendant. The construction of the bridge was such as to tempt boys to climb thereupon. In both the United States District Court and United States Court of Appeals, the recovery was allowed on the "attractive-nuisance" theory or "turn-table" rule. [271 F. 419.] This doctrine the United States Supreme Court repudiated, as indicated above in an opinion by Justice McREYNOLDS, cited, supra.
In the instant case the petition is predicated upon the turn-table or attractive-nuisance doctrine. In the petition it is said:
"That said electrical wire ran through and against the branches and foliage of one of said trees hereinafter described and near to the trunk of same; that said wire was uninsulated and carried a dangerous and deadly current of electricity; that said treewas a walnut tree some twenty-five feet in height, standing in aditch or depression, so that the lower branches of said tree werefifteen or sixteen feet from the level of said green immediately *Page 499 surrounding said tree; that said tree was a small tree and grewat an angle with its base, and in its growth had thrown outnumerous crotches, so that said tree was very easy for boys, evenof tender years, to climb, and that said wire was so located in said tree that anyone climbing into said tree would be likely to come in contact therewith."
Here we have all the facts of an attractive nuisance. This doctrine was submitted in the instruction thus:
"And that said tree was a small nut-bearing tree and grew in an angling or leaning position, and had low and numerous crotches, and was very easy for boys of tender years to climb, if so," etc.
The case was both pleaded and submitted on the attractive-nuisance theory by the plaintiff. On that theory he cannot recover under the line of cases cited above. It is an extension of the turn-table doctrine, against which this court has turned its face. The majority opinion in Paragraph one, rests upon the Williams and Temple cases, among others, so that it, like the Williams Case, rests upon an extension of the "turn-table" or "attractive-nuisance" doctrine. We cannot sustain the majority opinion without overruling the cases we have cited, supra, and the long list of cases in them cited.
Whether this case can be approached from any actionable angle is a question we need not speculate upon at this time. Pleadings and instructions would have to be redrafted. If it be not an attractive-nuisance case the deadly earmarks should be taken from the petition and instruction. Personally the writer thinks no case can be made, but this is not necessary in this dissent. For the views above stated I dissent. Woodson, C.J., concurs. *Page 500