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386

Opinion of the Court.

legal conclusion rather than a finding of the underlying facts, and we think it does not adequately respond to the issue and is not sufficient to support the judgment which rests on it.

That which follows relates to suits Nos. 3360 and 3421 and evidently means that the plaintiff by its invoices was indicating to the purchasers that 1/21 of the amount it was collecting from them represented the tax on the sales and 20/21 represented its “real sales price”; and that the plaintiff itself computed the tax on the basis of this “real sales price” and thereafter paid the tax as so computed, thereby saving to itself the difference between the tax resulting from that computation and the tax which would have resulted had the full amount collected from the purchasers been used as the basis for the computation. If that be what is meant, the court rightly concluded that the tax was collected from the purchasers. It is of no importance that the prior sales

. price had been reduced by the amount of the tax, for under the taxing act the tax was to be computed on the price for which the articles actually were sold and not on some prior and discarded price. But the court's further conclusion that, as the price theretofore in vogue was reduced by the amount of the tax, the plaintiff in effect returned to the purchasers the tax it collected from them—because they got the articles for a price which was that much less than it would have been had the prior sales price been still in vogue—is shown by its mere statement to be not a finding of fact but unsatisfactory reasoning having little tendency to establish its objective. That conclusion must therefore be disregarded. It results that the finding, while showing that the plaintiff collected the tax from the purchasers, does not show whether it returned the tax to them. Thus the finding does not adequately respond to the issue arising on the plaintiff's allegation that it absorbed the

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tax-for, having collected it from them, the plaintiff could absorb it only by returning it to them. With that matter left in this situation the finding plainly does not support the judgments which rest on it.

As the judgments of the District Court in the three suits must be reversed because of insufficiencies in the special findings, and as the reversal by the Circuit Court of Appeals was put on an untenable ground, we deem it the better course to enter here a judgment reversing the judgments of both courts and remanding the suits to the District Court with a direction to vacate its findings and grant a new trial in each suit.

No. 329.

This case comprises five separate suits which were tried together and, after judgments for the plaintiff, were consolidated for purposes of appeal. The trial was to the court under a written stipulation waiving a jury. The court made special findings and based its judgments on them. At the outset the plaintiff's right to recover on the facts stated in the petitions was challenged by the defendant by motions to dismiss and the motions were overruled. There were also motions at the close of the evidence for judgments thereon in favor of the defendant which also were overruled. These rulings and the sufficiency of the facts found to support the judgments are the matters presented for consideration here. There was neither allegation nor proof that the plaintiff had not collected the tax from the purchasers, or after so collecting it had returned it to them; and of course there was no finding on the subject. The suits proceeded throughout as if that question was one for administrative solution after judgment, if the plaintiff prevailed. What we have

. said in the earlier part of this opinion shows that this was a mistaken theory. The judgments in both courts

386

Statement of the Case.

below must be reversed accordingly and the causes remanded to the District Court with directions to set aside the findings, and to sustain the motions to dismiss—but without prejudice to the exercise by that court of its discretion in permitting amendments of the petitions.

Our conclusions in Nos. 171, 196 and 329 when summarized require that the judgments in all be reversed and the causes remanded with directions as before indicated.

Judgments reversed.

BEST, ADMINISTRATOR, v. DISTRICT OF

COLUMBIA

CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF

COLUMBIA.

No. 477. Argued February 9, 1934.—Decided March 5, 1934.

a

1. To warrant the direction of a verdict for the defendant on the

opening statement of plaintiff's counsel, it is not enough that the statement be indefinite; it must clearly appear, after resolving all doubts and uncertainties in favor of the plaintiff, that no cause of

action exists. P. 415. 2. Where a wharf, for unloading sand, lies adjacent to a public street

from which, for want of a proper fence or barrier, its surface may be both seen and entered, and when children of tender years, attracted by the sand piles, are accustomed to enter and use it as a playground, going in and out at their pleasure, the owner is under a duty to take reasonable precautions either to prevent such use or to keep the flooring in repair so that children will not be exposed to the danger of falling through holes. Railroad Co. v. Stout, 17 Wall. 657; Union Pacific Ry. v. McDonald, 152 U.S. 262, applied.

United Zinc Co. v. Britt, 258 U.S. 268, distinguished. P. 416. 62 App.D.C. 271; 66 F. (20) 797, reversed.

CERTIORARI, 290 U.S. 619, to review a judgment affirming a judgment for the District of Columbia entered on a directed verdict, in an action for the death of a child, alleged to have been caused by negligence. The verdict

Argument for Respondent.

291 U.S.

was directed at the close of the opening statement by counsel for the administrator.

Mr. John H. Burnett, with whom Messrs. James A. O'Shea and Alfred Goldstein were on the brief, for petitioner.

Mr. Robert E. Lynch, Assistant Corporation Counsel, District of Columbia, with whom Mr. William W. Bride, Corporation Counsel, was on the brief, for respondent.

There was a complete failure to offer proof of the following essential facts: That the wharf could be seen from the public space; that the child was attracted by the presence of the wharf, or of anything upon it; hidden danger there; prior accidents to children; invitation or permission to children to enter or play.

The statement that “children went in and out at their pleasure" and that "children used this place to play on and play in ” is not enough to show an invitation or permission on behalf of the respondent. It is to be inferred that the watchman would have prevented the children from coming upon the premises; and the fact that the wharf " is not a place to which the public is admitted definitely negatives any permission or invitation to a five-year-old child to play on the wharf on a Sunday.

Cases cited: Sullivan v. Huidekoper, 27 App.D.C. 154; Sioux City & P. R. Co. v. Stout, 17 Wall. 657; Union Pacific R. Co. v. McDonald, 152 U.S. 262; Peters v. Bowman, 115 Cal. 345; Baltimore v. Palma, 137 Md. 179; Lease v. Bealmear, 130 Atl. 66; Trogia v. Butte Mining Co., 270 Fed. 75; Savannah, F. & W. R. Co. v. Beavers, 113 Ga. 398; Zamaria v. Davis, 284 Pa. 524; Thompson v. Baltimore & Ohio R. Co., 218 Pa. 444; Beichert v. G. M. Laboratories, 242 N.Y. 168; Lineburg v. St. Paul, 71 Minn. 245; Stendal v. Boyd, 73 Minn. 53; Gillespie v. McGowan, 100 Pa. 144; Hegeage v. District

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Opinion of the Court.

of Columbia, 42 App.D.C. 109; McGraw v. District of Columbia, 3 App.D.C. 405; Branan v. Wimsatt, 54 App.D.C. 374, cert. den., 265 U.S. 591; Daniels v. New York & N. E. R. Co., 154 Mass. 349; Walker v. Potomac & Fredericksburg R. Co., 105 Va. 226; Walsh v. Fitchburg R. Co., 145 N.Y. 301; Conrad v. Baltimore & Ohio R. Co., 64 W.Va. 176.

The doctrine announced in the “ turntable case," Sioux City & P. R. Co. v. Stout, 17 Wall. 657, and the “slack pit case,Union Pacific R. Co. v. McDonald, 152 U.S. 262, is not applicable.

The case at bar should be controlled by United Zinc Co. v. Britt 258 U.S. 268. Cf. New York, N. H. & H. R. Co. v. Fruchter, 260 U.S. 141; 36 A.L.R. 1-294; 45 A.L.R. 973–993; Erie R. Co. v. Duplak, 286 U.S. 441.

The directing of the verdict at the conclusion of the opening statement was proper. Hornblower v. George Washington University, 31 App.D.C. 64; Brown v. District of Columbia, 29 App.D.C. 273; Oscanyan v. Winchester Arms Co., 103 U.S. 261.

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

Petitioner's intestate, a child five years of age, while playing on a wharf belonging to the District of Columbia, fell through a hole in the wharf and was drowned. This action was for damages for the alleged negligence of the District. After a jury had been impaneled, an opening statement was made by plaintiff's counsel and thereupon the court, on motion of the defendant and without taking testimony, directed a verdict in defendant's favor upon the ground that no cause of action had been stated. The Court of Appeals affirmed the judgment, 62 App. D.C. 271; 66 F. (2d) 797, and this Court granted certiorari.

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