The material allegations of the complaint in this action may be stated concisely as follows: *Page 558 That appellant is a corporation; that it owns and operates a sawmill and lumber plant near the town of Emmett; that upon its property is located a pond constructed and maintained by it for the purpose of holding logs thereon during the operation of its mill; that this property was fenced upon three sides; that a number of paths led from the highway to the property of appellant and that at one point, where several paths joined, the lower portions of the pickets of the fence had been knocked or worn away; that on the fifth day of April, 1931, one Steele was in the employ of appellant as a caretaker, watchman, agent and employee in charge of said property; that on the said fifth day of April, Lucio B. Bicandi, together with two playmates, proceeded to the east fence along one of the pathways, went under the fence and proceeded to a point upon the premises of appellant known as the "island"; that at said time Steele was standing approximately 150 feet west and south of the hole in the fence and watched the boys enter into the mill site; that Steele asked the boys where they were going, to which they answered they were going to the "island" to play, to which Steele replied in substance and effect, all right; that the boys proceeded along and upon the "island" and afterward commenced to play upon the logs of appellant floating in the mill pond; that one of the logs rolled throwing Lucio B. Bicandi and another boy into the mill pond and they were drowned.
To this complaint appellant filed a general demurrer, which was overruled. Appellant answered denying each and all of the allegations of respondents' complaint, and further answering and as an affirmative defense, alleged contributory negligence upon the part of Lucio B. Bicandi and upon the part of the parents of said Lucio B. Bicandi. Upon the issues made by the pleadings the cause was tried to the court and jury and resulted in a verdict in favor of respondents, whereupon appellant moved the court for judgment for appellant notwithstanding the verdict. The motion was denied and the clerk was directed to enter a judgment on the verdict, and this appeal is from the judgment. *Page 559
Appellant assigns as error: First, that the court erred in overruling appellant's demurrer to the complaint; second, that the court erred in denying defendant's motion for a judgment in its favor notwithstanding the verdict. Three other errors are predicated upon the action of the court in refusing to give certain instructions to the jury.
In my opinion there are but two questions for determination: First, Was the construction, maintenance and use of the mill pond by appellant for the purposes as alleged in the complaint an attractive nuisance such as would render appellant liable under the pleadings and proof as disclosed by the record? From an examination of the authorities I am not of the opinion that the construction, maintenance and use of the mill pond by appellant constituted an attractive nuisance, nor that a recovery could be had upon this theory of the case. (45 C. J., secs. 183, 188, p. 784, sec. 174, p. 772, sec. 162, p. 765;Smith v. McGoldrick Lumber Co., 124 Wash. 363, 214 P. 819;Barnhart v. Chicago, M. St. P. R. Co., 89 Wash. 304,154 P. 441; Williams v. Kansas City etc. Ry. Co., 222 Mo. App. 865,6 S.W.2d 48; Raeside v. Sioux City, 209 Iowa, 975,229 N.W. 216; Field v. City of Racine, 203 Wis. 149, 233 N.W. 611;Peters v. Bowman, 115 Cal. 345, 47 P. 113, 56 Am. St. 106;Polk v. Laurel Hill Cemetery Assn., 37 Cal. App. 624,174 P. 414; Reardon v. Spring Valley Water Co., 68 Cal. App. 13,228 P. 406.)
The case throughout was tried solely upon the theory of an attractive nuisance and not upon the negligence of the servant of appellant. The court's instructions are limited to a recovery upon that theory and recovery was had upon that theory and none other. Neither was the question of whether the servant acted within or without the scope of his authority determined by or submitted to the jury. The case was presented by appellant and respondents upon the attractive negligence theory and no other, which raises the second point, namely: Can a recovery be upheld on appeal upon any other theory than the one upon which the cause was tried and presented and upon *Page 560 which the verdict was based? The rule would seem to be that where both parties try a case throughout upon an agreed theory, upon appeal the case must be determined upon the theory adopted by the parties. (Brown v. Hardin, 31 Idaho 112, 169 P. 293;Hindman v. Oregon Short Line R. Co., 32 Idaho 133, 178 P. 837;In re McVay's Estate, 14 Idaho 56, 93 P. 28; McDaniel v.Moore, 19 Idaho 43, 112 P. 317; Milner v. Earl Fruit Co.,40 Idaho 339, 232 P. 581; Waite v. C. E. Shoemaker Co.,50 Mont. 264, 146 P. 736; Herbert v. Wagg, 27 Okl. 674,117 P. 209; Hanchett v. Wiseley, 107 Cal. App. 230, 290 P. 311;Midland Valley R. Co. v. Charter, 115 Okl. 51, 241 P. 749.)
The judgment should be reversed.