had been granted an easement, but of the
25-foot strip reserved and actually occu-
pied by the electric company.
Affirmed and remanded.

MISSOURI SUPREME COURT. (Division No. 1.)

MINNIE A. BOUTELL, Respt.,

V.

EDWARD F. SHELLABERGER, Appt.

(Mo., 174 S. W. 384.)

Husband and wife torts.

Pr. 395; Graham v. Tucker, 56 Fla. 307, 19 L.R.A. (N.S.) 531, 131 Am. St. Rep. 124, 47 So. 563; Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793; Russell v. Phelps, 73 Vt. 393, 50 Atl. 1101; Harrington v. Jagmetty, 83 N. J. L. 548, 83 Atl. 880; Gustine v. Westenberger, 224 Pa. 455, 73 Atl. 913; Schuler v. Henry, 42 Colo. 367, 14 L.R.A. (N.S.) 1009, 94 Pac. 360; Shane v. Lyons, 172 Mass. 199, 70 Am. St. Rep. 261, 51 N. E. 976; Walker v. Swayze, 3 Abb. Pr. 136; Hinds v. Jones, 48 Me. 349; Martin v. Robson, 65 Ill. 137, 16 Am. Rep. 578; Greenleaf v. Beebe, 80 Ill. 520; Madden v. Gilmer, 40 Ala. 637; Mhoon v. Colment, 51 Miss. 60; Bacon v. Bevan, 44 Miss. 293; Harvey v. Johnson, 133 N. C. 352, 45 S. E. 644; Pom. Code Rem. 222; Bliss, Code Pl. § 86.

Messrs. Brewster, Kelly, Brewster, & Buchholz and Hogsett & Boyle, for respondent:

A man is not, under statutes giving his wife the right to manage her separate property, liable for torts committed in the management of her statutory separate estate, such as injuries to a tenant by the operation of an elevator in her apartment house, where he was not present, and did not direct in the management of property owned by A person injured by the tort of the wife or otherwise participate in the management, her has a cause of action against both the although his express statutory exemption extends only to liability for debts and lia-husband and the wife for such tort. bilities contracted by the wife before marriage.

Flesh v. Lindsay, 115 Mo. 1, 37 Am. St. Rep. 374, 21 S. W. 907; Nichols v. Nichols, 147 Mo. 408, 48 S. W. 947; Taylor v. Pullen, 152 Mo. 434, 53 S. W. 1086; Bruce v. Bombeck, 79 Mo. App. 236; Merrill v. St. Louis, 83 Mo. 244, 53 Am. Rep. 576, s. c. 12 Mo. App. 466.

The plaintiff having a cause of action against both Rosa R. Shellaberger and Edward F. Shellaberger, and being entitled by law to one satisfaction therefor, had the right to bring suit thereon jointly

The facts are stated in the Commis- against both or against either, as plaintiff sioner's opinion. might think proper.

Messrs. Marley & Marley, for appellant: The husband is not liable for the torts committed by his wife in the management of her separate estate.

Staley v. Ivory, 65 Mo. 74; Gillies v. Lent, 2 Abb. Pr. N. S. 455; Quilty v. Battie, 135 N. Y. 209, 17 L.R.A. 521, 32 N. E. 47, 1 Am. Neg. Cas. 177; Peak v. Lemon, 1 Lans. 297; Fiske v. Bailey, 51 N. Y. 150; Baum v. Mullen, 47 N. Y. 577; Rowe v. Smith, 45 N. Y. 230; Lansing v. Holdridge, 58 How. Pr. 449; Eagle v. Swayze, 2 Daly, 140; Mangam v. Peck, 111 N. Y. 401, 18 N. E. 617; Choen v. Porter, 66 Ind. 196; D. Wolff & Co. v. Lozier, 68 N. J. L. 103, 52 Atl. 303; Brownson v. Gifford, 8 How.

Badgley v. St. Louis, 149 Mo. 122, 50 S. W. 817; Noble v. Kansas City, 95 Mo. App. 171, 68 S. W. 969; Hutchinson v. Richmond Safety Gate Co. 247 Mo. 110, 152 S. W. 52; Winn v. Kansas City Belt R. Co. 245 Mo. 412, 151 S. W. 98.

Blair, C., filed the following opinion: Respondent lived with her minor son in an apartment house in Kansas City, and the son was injured by the alleged negligence of the operator of an elevator maintained in the building by the owner for the use of the occupants. Appellant's wife owned the building. Under our statute it was her statutory separate property, having been acquired in 1899, and was leased and managed by her, through her agent, independently of her husband.

This action for damages was begun against appellant and his wife. No service having been had upon the wife, the case proceeded to judgment against the husband alone, and he appealed.

This record presents the question whether

a husband is liable for the torts of his wife sonalty. Acts of 1883, p. 113. Ellison and committed by her in the management of Gill, JJ., concurred in the result only. The her separate real property; the husband opinion is to the effect that the wife's conneither being present, directing, or other wise participating therein. This question has been passed upon in many jurisdictions. In practically all of them it is held that, in circumstances like those in this case, the husband is not liable. The question has never been squarely decided by this court.

The decisions in other jurisdictions fall into several classes: First. Those under statutes expressly exempting the husband from liability. These are not in point here, because founded upon such statutes. Second. Those which hold that the effect of statutes substantially like ours, affecting married women, has been to sweep away all liability of the husband for the wife's torts. Third. Those holding that the husband's liability for the wife's torts remains unaffected by married women's statutes, and now includes liability in circumstances like those in the instant case. These are few. Fourth. Those holding that the married women's statutes do not affect the husband's liability for the torts simpliciter, the purely personal torts, of the wife, and that this remains as at common law; but that the husband is not liable for the wife's torts when committed in the management of her separate property and out of the husband's presence, not under his direction, and without his participation.

The courts of this state consistently hold that, despite our statutes affecting the status of married women, the husband is still liable for the wife's purely personal torts, as at common law. Instances are: Nichols v. Nichols, 147 Mo. 407 et seq., 48 S. W. 947, in which case the husband and wife were sued by their daughter-in-law for their act in alienating from her the affections of her husband, their son; Taylor v. Pullen, 152 Mo. 434, 53 S. W. 1086, in which case the basis of the action was slander uttered by the wife, "without the presence, knowledge, or consent" of the husband; Bruce v. Bombeck, 79 Mo. App. 231, in which case the facts were that the wife (so the jury found) was racing a horse in a city street and negligently struck and injured plaintiff.

tract was void, and that it was as if it had never been; that to sustain the action did not give any effect to the contract, and consequently it was, in effect, a simple action for the wife's fraudulent representations, and fell within the general common-law rule defining the husband's liability for the wife's torts. Whether we approve or disapprove the reasoning employed and the result reached, it is clear the decision adds nothing to those already mentioned, but falls within the same class.

Since these decisions, and their like, deal only with the simple personal torts of the wife, they are not authority beyond that field. For such torts the husband was liable at common law, and the husband's liability for such torts these cases hold is unaffected by the statutes changing the status of married women.

In this case the apartment house was Mrs. Shellaberger's statutory separate estate. By the express terms of the statute (§ 8309, Rev. Stat. 1909), it was "under her sole control" and in no way liable for her husband's debts. With respect to her right to manage the property, and to contract and be contracted with, to sue and be sued, and enforce and have enforced against her property any judgments rendered for or against her, the statute (§ 8304, Rev. Stat. 1909) explicitly provides she shall be deemed a feme sole.

Under the common law, had there been no statutes affecting the situation, the husband would have been entitled to the use of the apartment house, and the wife could have made no contract concerning it, nor could she have had an agent in connection with it. The statute, however, declaring that the wife's property, real and personal, shall be her separate property, and it shall "be under her sole control," and declaring that she "shall be deemed feme sole, so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued," etc., both excludes the husband as a factor so far as the wife's property, business, and contracts are concerned, and provides remeThe case of Wirt v. Dinan, 44 Mo. App. dies against her in behalf of those who have 583, was one in which the wife was rights to enforce. To hold that such a charged with stealing cattle and selling sweeping change in the wife's status introthem to plaintiff, falsely representing them ducing relations and activities on the part as her own, and that she was unmarried. of the wife unknown to the common law, The suit was to recover the amount paid opening a field for torts by the wife which the woman for the cattle. The husband her former status made impossible, left was held liable. The case arose prior to the husband liable for torts committed by the enactment of the statute capacitating her in connection with the management of the wife to be sued as feme sole, though her separate property, would be not merely she might sue to protect her separate per- to adhere blindly to an ancient rule, but

to attempt to bring within it things which | 161) opposed to the conclusion that the could not have been within its purview, as formerly understood.

The statutes wholly emancipate the wife, at least so far as her separate property is concerned, and open new fields of endeavor closed to the wife by the common law. Since the husband is left no legal right to intermeddle with the business affairs and property of the wife, it is not logical to admit him to her new sphere solely that he may pay damages for torts the wife commits therein, excluding him for all other purposes.

The great weight of authority supports the conclusion that the husband is not liable in this case. Quilty v. Battie, 135 N. Y. 201, 17 L.R.A. 521, 32 N. E. 47, 1 Am. Neg. Cas. 177; Rowe v. Smith, 45 N. Y. 230; Henley v. Wilson, 137 Cal. loc. cit. 274, 58 L.R.A. 941, 92 Am. St. Rep. 160, 70 Pac. 21, citing Pom. Rem. & Rem. Rights, $$ 320, 321; D. Wolff & Co. v. Lozier, 68 N. J. L. loc. cit. 107, 52 Atl. 303; Harrington v. Jagmetty, 83 N. J. L. 548, 83 Atl. 880; Cooley, Torts, 3d ed. § 135, p. 197; Vanneman v. Powers, 56 N. Y. loc. cit. 43.

husband is not liable in this case. That act is to the effect that "the husband's property, except such as may be acquired from the wife, shall be exempt from all debts and liabilities contracted or incurred by his wife before their marriage."

In Nichols v. Nichols, 147 Mo. 407 et seq., 48 S. W. 947, it was said that "upon the familiar principle of expressio unius, exclusio alterius," the act was "a positive expression of the legislative intent as to the extent to which" the married women's statutes should exempt the husband from liability for the wife's torts. That case, however, involved the question as to the husband's liability for the wife's torts simpliciter. It cannot be supposed that the act was intended to extend the field of the husband's liability. When it was passed (in 1881) the wife could have no statutory separate estate in realty. Such separate estate as she might have called for a trustee and was equitable. Besides the act of 1881 can hardly be held to modify the effect of the acts of 1889, relating to married women. The re-enactment of the act of 1881 in the revised bill of 1889 merely continued it as before, and added nothing to its force or effect. The construction given the act of 1881 in Nichols v. Nichols, supra, is fully preserved by applying it now to the legal status in the light of which it was first enacted. This was all that was done in the Nichols Case.

We conclude that, under the facts of this case, appellant is not liable. The judgment is reversed.

All concur; Woodson, J., in separate opinion.

Woodson, J., concurring:

It is urged, however, that in Flesh v. Lindsay, 115 Mo. 1, 37 Am. St. Rep. 374, 21 S. W. 907, this court passed upon the question here involved and committed itself to the position opposed to that taken in the cases just cited. An examination of the authorities in other jurisdictions discloses that such is the general reputation of the case of Flesh v. Lindsay. Such, however, is not its character. In that case the principal question discussed was whether the wife could be held for loss caused by the falling, in 1887, of a party wall weakened by the negligence of workmen making repairs on a building erected on a lot inherited by the defendant wife in 1877. The workmen were employed by the husband, with the knowledge and consent of the wife. That case is not in point, as appears from the facts: (1) That the property there involved was not the separate property of Mrs. Lindsay, as the court expressly states in the opinion, and as the facts stated clearly show; (2) that the statutes making the wife's realty her separate property, There was a show of reason and justice and declaring it should be under her sole for that rule prior to the emancipation of control, and declaring she should be deemed the wife and property from the grasp of the a feme sole with respect to her right to husband. Then he took possession of her transact business, contract and be con- person and property by nature of the martracted with, sue and be sued, were not riage; they becoming one, and he that one, enacted until 1889, two years after the tort and as an incident thereto he swallowed was committed in 1887, and were prospec- up her property also. Having thus abtive in effect; (3) and that the real ques-sorbed the personnel of his wife and her tion discussed was not the husband's lia- property, it was considered but just that bility, but that of the wife. Flesh v. Lind- he should assume all of the responsibilities say is not in point. for which she otherwise would have been Nor is the act of 1881 (Laws 1881, p. liable. Otherwise no redress whatever could

I fully concur in the opinion of my learned associate filed in this case, not only for the reasons therein stated, but for the further reason I never have nor never will subscribe to the doctrine that the husband is responsible for any of the torts of his wife, those committed after the enactment of the married woman's act of 1889.

have been had for the torts committed by and foresight in providing the fence as a her.

But now, under the liberal legislative enactments and judicial rulings, completely emancipating the wife from her husband in all property and business relations, it seems to me that there is no longer a vestige of law, reason, or justice left upon which to base a claim for damages against the husband for the separate torts of the wife. Such rulings are, in my opinion, wrong in morals and a travesty upon justice.

NORTH CAROLINA SUPREME

COURT.

protection, which was sufficient to measure up to the duty that it owed.

Briscoe v. Henderson Lighting & P. Co. 148 N. C. 396, 19 L.R.A.(N.S.) 1116, 62 S. E. 600; Ferrell v. Dixie Cotton Mills, 157 N. C. 528, 37 L.R.A. (N.S.) 64, 73 S. E. 142, 3 N. C. C. A. 306; Greer v. Damascus Lumber Co. 161 N. C. 144, 76 S. E. 725; Benton v. North Carolina Public-Service Corp. 165 N. C. 354, 81 S. E. 448; 3 Shearm. & Redf. Neg. 6th ed. § 705, p. 1846; Richards v. Connell, 45 Neb. 467, 63 N. W. 915.

Clark, Ch. J., delivered the opinion of the court:

This is an appeal from a judgment of nonsuit. The plaintiff's intestate, a bright

W. C. STARLING, Admr., etc., of Alma little boy five years of age, was drowned

Starling, Deceased, Appt.,

V.

SELMA COTTON MILLS.

(168 N. C. 229, 84 S. E. 388.)

Negligence dangerous premises injury to child.

1. A mill owner is negligent in permitting a fence inclosing a reservoir with perpendicular sides, and filled with 7 or 8 feet of water, to the top of which a sloping embankment leads on the outside, to become dilapidated, when the reservoir adjoins the playground of the children of the mill operatives,

so as to be liable for the death of a fiveyear-old boy who, while at play, crawls through the fence for a drink and is

in a reservoir on defendant's premises Saturday afternoon, February 20, 1909. The reservoir was about 50 feet around, with a brick wall around it. It was 2 or 3 inches from the top of the brick wall to the water on the inside. Rev. Mr. Morris testified that there had been a fence around the reservoir, and that there was still " a piece of one there at the time of the drowning of the little boy, Alma Starling." He testified that the fence was put up with post-oak posts skinned and the bark taken off, and slatted up between the posts, which were 8 feet apart, with slats fastened with small nails. These slats were 3 inches apart at the bottom, and wider apart going up, till they were 8 inches apart at the top. The fence was 3 or 4 feet high. This reservoir was close to the mill and near the tenement houses of the operatives, and their small children played around it almost every day, rolling their hoops up and down the platform on the side of the reservoir. The father of Alma Starling, who was a mill operative, lived 210 feet from the reservoir. The witness testified further: "The fence around the reservoir was decayed and rotted and falling down. Some There were several of it had fallen off. places around the reservoir where the slats Messrs. L. H. Allred, F. H. Brooks, and had fallen off, mostly on the side of the Manning & Kitchin, for appellee: street where they had hauled coal. The Defendant had exercised reasonable care slats had fallen off at the bottom. There

drowned. Judgment

- nonsuit - res judicata. 2. A voluntary nonsuit is not res judicata.

(March 3, 1915.)

A
PPEAL by plaintiff from a judgment of
the Superior Court for Chatham Coun-
ty granting a nonsuit in an action brought
to recover damages for the death of his in-
testate which was alleged to have been
caused by defendant's negligence. Reversed.
The facts are stated in the opinion.
Messrs. A. Jones & Son and Douglass
& Douglass for appellant.

Note.

The doctrine of attractive nuis

ance is the subject of an extended note appended to Cahill v. Stone, 19 L.R.A. (N.S.) 1094. The specific question as to the applicability of the doctrine to ponds, reservoirs, waterways, etc., is discussed at page 1143 of that note, and in the later note to Thompson v. Illinois C. R. Co. 47 L.R.A. (N.S.) 1101. And see also later cases in this series, Riggle v. Lens, L.R.A. 1915A, 150; Romana v. Boston Elev. R. Co. L.R.A. 1915A, 510; and Cœur d'Alene Lumber Co.

v. Thompson, L.R.A. 1915A, 731. For the application of the doctrine to walls, fences, etc., see note to Coon v. Kentucky & I. Terminal R. Co. ante, 160.

Various other concrete aspects of that doctrine are treated in notes which may be found by consulting the Index to L.R.A. Notes, "Negligence,” §§ 23, 23a.

Generally as to duty of property owner to trespassing children, see note to Walsh v. Pittsburg R. Co. 32 L.R.A.(N.S.) 559.

was one hole in the fence I could crawl to be guilty of contributory negligence. through. That hole was something like 10 feet from the place where the body was found. There were three places where the fence had rotted down. I had talked with Mr. Rose, the superintendent, about the condition of the fence, and heard him speak about it. It had been in that condition for some time. Pretty soon after this drowning I got orders to put the fence up. The reservoir was about 15 feet from the mill. There was a passageway between the reservoir and the mill. There is a sloping earth bank on the outside that leads up to the top of the wall on which the fence was built."

The water on the inside, he said, came within 2 or 3 inches of the top of this wall. The posts were 8 feet apart, and the wall was 16 or 18 inches broad at the top. The slope of the wall on the outside was gradual.

There is also evidence that small children were playing about the reservoir and all around it every day. The reservior was 25 or 30 steps from the front end of the mill. Small children of varying ages played around the reservoir, where there was a grassy place and trees for the children to play.

One of the little companions of the deceased boy testified that Alma went through the hole in the fence to get some water to drink in the tin cup, and fell in and was drowned; that he easily went through the hole near the bottom of the fence, which was 12 to 18 inches wide.

There were several witnesses who testified to the same effect, that the reservoir, which was 7 or 8 feet deep, was surrounded by a fence which had been suffered to become dilapidated, with many holes through it, and that children five or six years old and under were in the habit of playing around the reservoir, and that the management of the mill knew of it.

But even in that case it was said that, when children are trespassers, liability will be enforced in many cases where there would be no liability if the injury had been sustained by persons of maturer age. The humane judge who wrote that opinion says on page 411 of 148 N. C.: An "infant who enters upon premises, having no legal right to do so, either by permission, invitation, or license, or relation to the premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childish curiosity, or in obedience to a childish propensity excited by the character of the structure or other conditions, he goes thereon and is injured by the failure of the owner to properly guard or cover the dangerous conditions which he has created, he is liable for such injuries, provided the facts are such as to impose the duty of anticipation or prevision; that is, whether, under all of the circumstances, he should have contemplated that children would be attracted or allured to go upon his premises and sustain injury."

But in this case these children were not trespassers. They were five or six years old, and were at their usual playground, where they went every day, which fact was necessarily known to the management of the mill. This playground was in the immediate proximity to the reservoir and to the mill, and the officials knew the danger of the children falling in there either in their play or in attempting to get water to drink, as this little boy did. The outside bank was sloping, and the children could climb up easily and would be tempted to do so naturally. On the inside the water came up within 2 or 3 inches of the top, and the wall on the inside was perpendicular, with the water 7 or 8 feet deep. A more dangerous situation could not have been devised. The It does not admit of debate that the fact management of the mill were aware of the that such a dangerous place was unguarded danger, as is shown by their putting a fence by a secure fence where children of that age around it. Indeed, the danger was selfwere allowed to play was culpable negli- evident. The children were those of the gence on the part of the officers of the de- operatives of the mill, and were, so to fendant. The very fact that a fence had speak, on their own grounds. They were been put up, of itself, shows that these not trespassers certainly. There is much authorities were aware of the danger. To evidence that the fence was dilapidated, and permit it to become dilapidated was negli- direct testimony that the little boy went gence. It may be that, if the defendant through a hole in the fence near the ground. had put on evidence, a different state of There was evidence that his playmate told facts could have been shown or matters him that it was dangerous, but the child in excuse. But, upon the evidence before was too young to be guilty of contributory us, it was clearly error to grant a nonsuit. | negligence. This case has no resemblance to Briscoe The fact that a nonsuit had been formerv. Henderson Lighting & P. Co. 148 N. C. 396, 19 L.R.A. (N.S.) 1116, 62 S. E. 600. That decision was put upon the ground that the child was a trespasser and of an age

ly taken is not res judicata. Hood v. Western U. Teleg. Co. 135 N. C. 627, 47 S. E. 607, and cases there cited; Helms v. Western U. Teleg. Co. 143 N. C. 394, 8 L.R.A.