(273 S.W.)

reasonably prudent persons must so use idea of these little innocent boys, hardly their property so as not to unreasonably in- old enough to know what they are doing, jure others, and, if that duty is not exercis-eing guilty of trespass, which would bar ed, then they are liable for its violation. the parents' right of a recovery, when neither In the case at bar, the city unreasonably they nor the lot owners ever thought of such constructed the dam or fill across Twenty- a thing, is shocking to the human intelliFirst street, and thereby caused a large body gence. Williams v. Gas Co., 274 Mo. 1, 202 of surface water to accumulate, covering S. W. 1; Day v. Ice Co., 136 Mo. App. loc. some 8 city blocks, right in the heart of the cit. 275, 117 S. W. 81; Beckwith v. City of city, varying in depth from a few inches Malden, 212 Mo. App. 488, 253 S. W. 1. near the edges thereof, to 12 or 14 feet in The above cases lend color to the foregodepth in the center, thereby making it a reg-ing observations; also the case of Beckwith ular death trap for children. The only won- v. City of Malden, 212 Mo. App. 488, 253 der is that there were not dozens of them S. W. 1, holds that the city must anticipate drowned therein during the many years that the proclivities of boys to climb trees. it existed.

and practically unguarded. The question of the city's negligence was held to be for the jury. In this case the low wall, or balustrade, 25 inches high, was the only guard, and it, of course, was no protection, once a child was on top of it, against the water in the basin of the fountain. The wide coping which topped this wall was a great temptation to children to run around it. We think it too extreme to say, as was suggested in argument, that a boy 5 years old could not climb onto the top of a wall of that height without assistance. The trial court was right in submitting the case to the jury."

The Supreme Court of Nebraska, in the case of City of Omaha v. Richards, 49 Neb. 244, 68 N. W. 528, held:

"That the city is liable for the death of a boy 10 years old, by drowning, caused by falling

from a section of wooden sidewalk which he was using as a raft upon a pond of water within the corporate limits, a part thereof being in a public street and part upon private property; it being shown that such accumulation of water was occasioned by the negligence of the city in grading said street and constructing a storm sewer therein."

The following cases also announce the same principle of law; Daneschocky v. Sieble, 195 Mo. App. 470, 193 S. W. 966; Harrison v. Kansas City Light Co., 195 Mo. 623, 629, 93 S. W. 951, 7. L. R. A. (N. S.) 293; Buckner v. Horse & Mule Co., 221 Mo. loc. cit. 709, 711, 120 S. W. 766; Obermeyer v. Chair Co., 229 Mo. loc. cit. 111, 129 S. W. 209; Kup

ferle v. Ry. Co., 275 Mo. loc. cit. 457, 458, 205 S. W. 57; Washburn v. Light Co., 202 Mo. App. loc. cit. 116, 214 S. W. 410; Thompson v. City of Slater, 197 Mo. App. 247, 193 S. W. 971; Hudson v. Power Co. (Mo. App.) 234 S. W. loc. cit. 871; Shafir v. Sieben (Mo. Sup.) 233 S. W. 420, 17 A. L. R. 637; Hegberg v. Ry. Co., 164 Mo. App. 514, 147 S. W.

192.

WALKER, WHITE, and RAGLAND, JJ., concur.

GRAVES, C. J., and DAVID E. BLAIR and ATWOOD, JJ., dissent on the ground that there is no liability.

GRAVES, C. J. (dissenting).

Plaintiffs, in this action, sue for damages occasioned to them by the death of one of two twin boys, aged 6 years and 7 months, when both were drowned in a pond on March 8, 1920.

Their

In the afternoon of that day the two boys, Karl and Kenneth, came home from school in the afternoon about 3:15 or 3:30 o'clock, and, after changing clothes, left, and were next seen upon the pond just south of TwentyFirst street and between Bales avenue and Askew street. There was an inch or more of ice upon the pond, and the boys were seen playing with a bottle upon the surface of the ice, one running after the other. Near the deeper portion of the pond the ice gave way, and the child in front sank under, immediately followed by his brother. pictures are in the record, and it is easily discernible that they were both bright little fellows, as the evidence tends to prove. The present action is for the death of Karl E. Davoren. From the evidence, Twenty-First street runs east and west, and Bales avenue and Askew street run north and south, intersecting and crossing Twenty-First street. There was no intervening street between well as Twenty-First street, are public highBales avenue and Askew street. They, as is thus charged in the petition: ways in Kansas City, Mo. The negligence

"That on the 8th day of March, 1920, about 3:45 o'clock p. m., said Karl E. Davoren was playing upon the ice upon a pond of water located on the south side of Twenty-First street, between Bales avenue and Askew street, in Kansas City, Mo.; same being the only pond on the south side of said street between Bales and Askew. That the ice upon said pond broke, and allowed said Karl E. Davoren to fall through the ice into the water of said pond, as a direct result of which he was then and there drowned and came to his death. The said pond was created and caused directly by the damming up and accumulation of surface water directly caused by the negligence of the defendant in

[8] VI. There was no error in the instructions given for the respondent, telling the jury to find that the pond in question was attractive for children; that is true, yet the doctrine of the turntable cases has nothing to do with the principles of law underlying this case, but, independent of that the instruction was still sufficient, in that they required the jury to find the pond was danger-constructing and maintaining a high grade and ous and that the city knew, or should have known, it in time to rectify the dangerous condition.

[9] VII. The judges, who agree that there should be a recovery by plaintiffs in this case, further agree that the amount of recovery (under previous rulings) should not exceed $5,000. It is therefore adjudged that if plaintiffs will remit the sum of $5,000 as of the date of the original judgment, then the remainder of such judgment ($5,000) will be affirmed as of the date of the original judgment. The remittitur is to be made within 10 days, and if not so made, then the

fill on Twenty-First street at this place, and in failing to provide and maintain a sufficient culvert or other outlet therein to allow said surface water to escape. That said pond constituted a nuisance, and created a condition dren and others, and that the defendant knew, attractive to children and dangerous to chilor by the exercise of ordinary care should have known, all of said facts, circumstances, and conditions in time so that, by the exercise of ordinary care, said conditions could have been averted, rectified, and remedied, and the death of said child averted."

Damages were sought in the sum of $10,

(273 S.W.)

Plaintiffs had a verdict for $10,000, and, by drowning; and if you further find that there from the judgment entered upon such ver- was a high fill on Twenty-First street at said dict, defendant has appealed. It appears place, and that the defendant city constructed that about 20 years ago Kansas City im- and maintained said fill without providing an outlet therein reasonably sufficient to allow proved Twenty-First street, and in doing surface water to escape, and that the defendso constructed or made a fill some 20 feet ant city was thereby guilty of negligence (if high for a distance of 150 feet, between Bales you so find), and that said pond was directly avenue and Askew street. There was a caused by the damming up and accumulation of gulch or ravine coming in from the south, surface water by said fill (if you so find); and if and the topography of the lands south of you further find that said pond created a condition attractive and dangerous to children, and Twenty-First street was such that the water accumulated and formed a lake of consid- that the defendant city knew, or by the exercise erable dimensions, and in the deeper portions of ordinary care should have known, all of the facts, circumstances and conditions herein sub(near this embankment upon which the traf-mitted, relating to said fill and to said pond fic way and sidewalks on Twenty-First street and the danger thereof (if you so find), in time were constructed) the water was 12 to 15 so that, by the exercise of ordinary care, said feet deep. It stands admitted in the record dangerous condition (if you so find) could have that the whole of this lake was upon private been averted, rectified, and remedied by proproperty, and no portion thereof in the viding a reasonably sufficient outlet in said fill street or upon city property. Details will to allow surface water to escape, and that the death of said Karl E. Davoren would thereby be left to the opinion. have been averted; and if you further find that Karl E. Davoren was at and before the time of his death an unmarried minor, that plaintiffs were at the time of said death, and are now, husband and wife, and the father and mother, respectively, of said Karl E. Davoren, and as such had the custody of said minor child; and if you further find that the death of said child directly resulted from negligence of the defendant city as herein submitted (if you find the defendant city was negligent as herein submitted), and that plaintiffs have sustained damages as a direct result of the death of their said son-then you are instructed by the court that you should return a verdict in favor of the plaintiffs and against the defendant."

I. In this case the evidence in the bill of exceptions is printed in full, giving both questions and answers. In other words, the evidence is not given in narrative form. Motion was filed by respondents to dismiss the appeal for this reason. The motion to dismiss was overruled before the argument of the cause, and for reasons which we afterward expressed in Frohman v. Lowenstein, 303 Mo. 339, 260 S. W. 460, No. 23533, when such case was determined by the court in banc. This opinion in banc has not been as yet published, but will be in the officially reported cases later.

II. It is hard to eliminate from the mind the bright faces of those two little boys, and the writing of the cold law of this case is thereby rendered no easy task. Appellants contend that the theory of the petition puts the case within the "turntable cases" rule. Respondent denies this, in the face of the instruction which required the jury to find every element of the so-called turntable dọctrine. The allegation in the petition we have set out in the statement. but we quote the ear-marking clause here thus:

"That said pond constituted a nuisance and created a condition attractive to children and dangerous to children and others, and that defendant knew," etc.

The instruction requires the jury to find the foregoing pleaded fact, so that both by pleading and instruction this trial proceed ed upon the turntable case theory. At the expense of brevity, we set out the instruction:

"If you believe and find from the evidence that on the 8th day of March, 1920, about 3:45 o'clock p. m., Karl E. Davoren was playing upon the ice on a pond of water located on the south side of Twenty-First street, between Bales avenue and Askew street, in Kansas City, Mo., and that the ice on said pond broke and allowed said Karl E. Davoren to fall through the ice into the water of said pond, and that, as a direct result thereof, he came to his death

We have italicized several pertinent facts in this instruction (1) the portion pertaining to surface water, which will be material upon another point; and (2) that part which expressly submits the turntable doctrine. The turntable cases proceed upon the theory that it is negligence to maintain (unguarded, unprotected, and insecure) a turntable or similar instrumentalities which are attractive to children of tender years and immature minds. The petition in this case pleads the maintenance of "a condition attractive to children," and asks relief as in the turntable cases. The instruction covers the same matter, thus showing that the pleader, by instruction, gave that construction to his own pleadings. In this situation it cannot be urged that this portion of the petition is surplusage. Each and every allegation of the petition were submitted by the instruction. The petition charged that this "condition," "attractive to children," was created and maintained by the defendant. Whatever may have been the intent of the pleader, his language was unfortunate, and we have a case where there is an attempt to recover upon the turntable case doctrine. The instruction given construes the pleading. But it is urged that there could be no turntable doctrine in the case, because the "condition attractive to children" was not

it in such manner as to make a proper roadway, and make its embankment of such height as to protect it from surface water. In so doing it was guilty of no act of neg

it becomes liable in damages to adjoining property owners, but such right to damages is not based upon negligence. There can be no negligence in doing what the city had the legal right to do. The damages in condemnation proceedings are based upon taking or damaging private property for public use, and not upon negligence.

upon the city's property. There is language In this case the city had such rights in in Williams v. Gas & Electric Co. (Mo. App.)| Twenty-First street that it could construct 187 S. W. loc. cit. 557 (Springfield Court of Appeals), which lends support to this idea. When that case reached this court (274 Mo. 1, 202 S. W. 1), there was no approval of that language used by the Court of Appeals.ligence. In changing the grade of its street, While the cases involving the doctrine usually are cases where the inhibited structure is upon the premises of the defendant, yet it by no means follows that an inhibited structure might not be wrongfully erected and maintained by defendant upon the premises of another, and without leave or license from such other, and the turntable rule would apply. A turntable itself might be placed upon property not owned by defendant, and without leave or license from the owner of the premises. The pleadings and the instructions in the instant case show a clear attempt to make a case under the turntable doctrine. The facts do not bring it within the rule, and the demurrer to the evidence should have been sustained. Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74, 3 Am. St. Rep. 557; Arnold v. City of St. Louis, 152 Mo. 173, 53 S. W. 900, 48 L. R. A. 291, 75 Am. St. Rep. 447; Moran v. Pullman Car Co., 134 Mo. 641, 36 S. W. 659, 33 L. R. A. 755, 56 Am. St. Rep. 543; Kelly v. Benas, 217 Mo. 1, 116 S. W. 557. 20 L. R. A. (N. S.) 903; Buddy v. Union Terminal R. Co., 276 Mo. 276, 207 S. W. 821; State ex rel. v. Ellison, 281 Mo. 667, 220 S. W. 498; Rallo v. Construction Co., 291 Mo. 221, 236 S. W. 632.

This court has persistently refused to extend this doctrine of negligence. Kelly v. Benas, 217 Mo. loc. cit. 13, 116 S. W. 557, 20 L. R. A. (N. S.) 903; State ex rel. v. Ellison, 281 Mo. loc. cit. 680, 220 S. W. 498 et seq.

In no instance have we ruled facts such as we have here to be within the rule. There are, however, other features in this case which preclude recovery. Of these next.

III. As indicated in our statement, there was a draw such as would gather the surface water and cast it upon Twenty-First street on its way northward. The respondents' learned counsel concede the water to be surface water, in the instruction set out above. The topography of the country was such that from several directions the surface water ran to this lower portion of the land (draw) and was cast upon and across Twenty-First street. It was by pleadings, evidence, and instructions treated and accepted to be surface water. The alleged negligence of the city must be measured by its rights to both build and protect its streets. Surface water in Missouri is a common enemy, and the landowner has the right to protect his property from its depredations, although in so doing the water may be cast upon the land of another. Goll v. Railroad, 271 Mo. loc. cit. 667 et seq., 197 S. W. 244,

The city, in its fight against surface water and for the protection of its street, had the legal right to raise the level of the property under its control, and having such legal right, could not be guilty of negligence in doing the act. A legal right is a lawful thing. The city did not have to provide waterways through or over its property in the disposition of surface water. See authorities, supra. The Missouri rule as to surface waters is the common-law rule, and not the civillaw rule, and for this reason we need not go beyond our own case law. The evidence in the case, under this rule of law, shows no negligence and hence no liability.

IV. Divers lines of cases are cited and elaborated upon by learned counsel upon both sides of the case. We shall not pursue their thoughts, when the solution of the case is one of such simple application of firmly fixed rules. Running through it all is the legal right of the city (under our rulings) to construct a solid embankment on its roadway, and therefore there was no negligence in so constructing and maintaining it. Then viewing it from another angle, and supposing that the owner of the lands south of Twenty-First street, where this pond was made, had themselves built such an embankment and made this pond on their own land, just as it is now, except the embankment would have been constructed further to the south rather than upon the roadway of the city, would the landowners be liable? Most certainly not under the cases cited under our point II, supra. If the city paid the assessed damages to, or became liable for, damages to these property owners for damaging their property by raising the natural grade of the street, it (in a sense) paid for the privilege of constructing a pond of surface water on this private property, and would be no more liable than the private owners for the maintenance of the pond. Suppose the city in its private business or proprietary capacity owned a lot or tract of ground within the city, and for some lawful purpose and use built a pond thereupon, would it be liable for children who might be submerged therein? We think not. In such capacity the city (although a corporate

(273 S.W.)

an individual. It might need a pond to run a municipal light or water plant, or some other things, not done in a governmental capacity. The maintenance of a pond of water upon private property has not been declared negligence in Missouri. It must not be overlooked that this pond was not in a street or upon city property. So that we can see no theory upon which the recovery in this case can be permitted to stand, much as we would like to see the parents compensated for the loss of these two bright little fellows. The judgment should be simply reversed, and it is so ordered.

on the 1st day of June, 1924. He returned July 24, and found the doors of the club house open, and one window taken out and set aside. Many of his articles were gone, including his reel and rod, minnow trap, lantern, and some dishes and cooking utensils. Other evidence showed that the club house was closed and locked up to a very few days before July 24.

In September the deputy sheriff, in a search of defendant's home, found articles like those which Wallace missed, bearing marks by which Wallace identified them as his. Defendant was arrested and, while be

I hereby file the foregoing opinion, writing taken to the county seat by the sheriff, he ten by me for Division 1, as my dissent in banc. ATWOOD, J., concurs in the result of these views.

STATE v. STEELMAN. (No. 26086.) (Supreme Court of Missouri. Division No. 2. June 5, 1925.)

1. Larceny 68(1)—Evidence, though entirely circumstantial, held sufficient to submit guilt to jury.

Evidence, though entirely circumstantial, held sufficient to submit accused's guilt to jury. 2. Criminal law 684-Trial judge, in his discretion, may permit evidence in rebuttal which should have been introduced in chief. Trial judge, in his discretion, may permit evidence in rebuttal which should have been introduced in chief.

3. Criminal law 684-Admission in rebuttal instead of in chief of evidence of value of property taken held harmless.

Admission in rebuttal instead of in chief of evidence that property taken was worth $25 held harmless, where accused had ample opportunity to meet such evidence.

Appeal from Circuit Court, Shannon County; E. P. Dorris, Judge.

said that the affair had got him in bad shape; that the truth of the matter was that his wife and little boy got the stuff, and he did not know what to do about it. He said that he took the minnow trap and put it in a fence corner near his potato patch. Later he directed the sheriff where he should find some of the articles. The sheriff did not find them there, but later found them where the wife and little boy of defendant showed him.

The defendant testified, denying that he broke into the club house and took the articles. His wife was sworn, and testified that she and her boy were picking berries near the club house, they saw the door standing open and went in and got the articles and took them away; that her husband had nothing to do with it, but when he came home told her to go and take them back. This she was unable to do because of an illness which followed.

The state offered evidence in rebuttal to show that defendant had said he was in pretty bad trouble; he would have to have his wife bear the blame or he would go to the penitentiary.

The jury was instructed in proper form that if the defendant broke into the building and took away the things mentioned and if they were of the value of $25, or of any value, they might find him guilty of grand larceny; but if they found that he took the

Charles Steelman was convicted of larceny, things (without a finding that he broke into and he appeals. Affirmed.

Robert W. Otto, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

WHITE, J. The defendant, by information filed with the circuit clerk of Shannon county, was charged with burglary and larceny. On trial, September 19, 1924, he was found guilty of larceny, and his punishment assessed at two years' imprisonment in the penitentiary. He appealed.

The evidence showed that one Clarence Wallace, in June, 1924, owned a controlling interest in a club house on Current river, in Shannon county. He owned and kept stored in the club house dishes, fishing rod, reel, minnow trap, and other articles used in fishing. He saw these articles in the club house

the building), and carried them away, and if they were of less value than $30, they should find him guilty of petit larceny. The jury found him guilty of grand larceny, and assessed his punishment at the lowest penalty provided by the statute (section 3305, R. S. 1919) two years in the penitentiary.

[1] I. Appellant's motion for new trial assigns error to the admission and exclusion of evidence and to the giving of instruction on the part of the state. It is further claimed that there was not sufficient evidence to support a verdict of guilty. We find the evidence, while entirely circumstantial, is sufficient to submit the question of defendant's guilt to the jury.

[2, 3] II. The only exception saved to the admission of evidence was where the trial court

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