(dissenting).
I agree with the majority opinion the trial judge was in error in not directing a verdict for the defendant upon the count in the declaration embracing the doctrine of attractive nuisance. My agreement on this point is predicated upon the fact it is generally held that the doctrine of attractive nuisance is not applicable to ordinary construction. The construction here is shown to be ordinary block and brick, one-story classrooms, added to existing similar classrooms and I do not think such construction, absent something unusual, not shown here, could be found as a matter of law to be within the attractive nuisance doctrine. See Crawford v. Cox Planning Mill and Lumber Co., 238 Ark. 588, 383 S.W.2d 291 (1964). I also- agree with the majority opinion there is material evidence in the record from which the jury could conclude the playground doctrine applies. My disagreement arises as -a result of holding the attractive nuisance doctrine not applicable. I think the case here on appeal would have to turn on whether this error of having submitted the case *578on the attractive nuisance doctrine can he found to he harmless error under T.C.A. 27-117.
This very salutary statute requiring an appellate court, having knowledge of the law and experience in trials, to determine in its opinion whether an error committed in the trial of the case, in light of all of the facts and circumstances shown hv the record, affirmatively appears to it to have prejudiced the complaining party.
In the case at bar plaintiff filed his declaration alleging a right of recovery upon two separate theories; that is, under the doctrine of attractive nuisance, and upon the playground theory. The plaintiff entered evidence in support of both. The trial judge in his charge submitted both theories to the jury telling them, in substance, plaintiff could recover on either1 theory. The jury found for plaintiff returning* a general verdict. It is, of course, not possible to know upon which theory the jury found for plaintiff, and such is not necessary since we are not seeking this answer. Our responsibility is to determine whether under these facts and circumstances the submission of the right of the plaintiff to recover under the doctrine of attractive nuisance in fact prejudiced defendant, since such has been found to be error.
I think the holding of this Court in the recent cases of Wilson v. Tranbarger, 218 Tenn. 208, 402 S.W.2d 449 (1965), and Holder v. Martin, 219 Tenn. 165, 407 S.W.2d 461 (1966), should control the case at bar.
The Wilson case was a suit for damages resulting from a vehicle accident by plaintiffs as guest passengers in an ■automobile against defendant trucking company. Defendant, in addition to its plea of not guilty, filed a special plea upon joint venture which raised the issue that any *579negligence of tlie driver of the automobile in which plaintiffs were guests was imputable to plaintiffs, barring recovery. The driver of the automobile was not a party to the suit and defendant entered proof' on the negligence of the driver of the car. The trial judge submitted the case to the jury with a proper charge on both defensive pleas. The jury returned a general verdict for defendant. Upon appeal it was found there was no evidence to support the plea of joint venture and submission of this defensive plea to the jury was error. This Court found this error under the circumstances was prejudicial to the plaintiffs.
The Holder case was a suit for damages resulting from a vehicle accident. The defendant filed pleas in substance denying the negligence alleged, and then filed two other special pleas; first, a plea of accord and satisfaction; and, second, a doctrine of election of remedies. Defendant was allowed to enter proof as to all of the defenses and the trial judge in his charge submitted all defenses for consideration to the jury. The jury returned a general verdict for defendant. Upon appeal it was found to have been error to have submitted the defenses of accord and satisfaction and election of remedies to the jury. This Court found such error to be prejudicial to the plaintiff.
The facts and circumstances in the case at bar and the Wilson and Holder cases are similar, with the exception in the case at bar it is the defendant claiming prejudice, while in the Wilson and Holder cases it was the plaintiffs. In the Wilson and Holder cases there was evidence entered to support both the defensive pleas found to have been submitted in error and the defensive pleas found to have been properly submitted. In the ease at bar evidencé has been entered to support both the attractive nuisance *580doctrine found to have been submitted in error and the playground doctrine found to have been properly submitted. In the Wilson and Holder cases the trial judge submitted all defensive pleas to the jury for its consideration. In the case at bar the trial judge submitted to the jury the case on the attractive nuisance doctrine and the playground doctrine. In the Wilson and Holder cases the jury could have found, as it did, on the defensive pleas found to have been properly submitted, disregarding the other pleas found to have been submitted in error, or it could have found, as it did, on the improperly submitted pleas, disregarding the properly submitted pleas. In the case at bar the jury could have found, as it did, on the properly submitted plea of the playground doctrine, disregarding the improperly submitted plea of the attractive nuisance doctrine, or it could have found, as it did, on the improperly submitted plea, disregarding the properly submitted plea.
I think tlie facts the court found to control on this issue in the Wilson and Holder eases exist and should control in the case at bar. In the case at bar, in light of all of the facts and circumstances shown by the record, it does affirmatively appear to me the defendant was prejudiced by submission to the jury for its consideration the count in the declaration embracing the doctrine of attractive nuisance. "Where we find such error it is our duty to reverse and remand for a consideration of the case under proper instructions. See Wilson v. Tranbarger, supra.
One of the first cases dealing with this issue is the case of Tenn. Central Ry. Co. v. Umenstetter, 155 Tenn. 235, 291 S.W. 452 (1927). The Umenstetter case was a suit against the Railroad for damages on statutory and com*581mon law counts, both submitted to the jury, which returned a general verdict for the plaintiff. Upon appeal it was determined there was no evidence to support the common law count and submission to the jury upon this count was error. There was evidence to support the statutory count and upon this count the verdict could be affirmed. The Court found this error did not affirmatively appear to have influenced or affected the verdict of the jury inasmuch as there was no evidence before the jury to support the count submitted in error. This difference between the Umenstetter case and the case at bar is that there is evidence to support the count on the doctrine of attractive nuisance.
I respectfully dissent from the majority opinion. I would reverse and remand for a new trial.