This news article will discuss what the famous Terrell Wells Health Resort once was. This is one of San Antonio’s highly remembered swimming pools.
Terrell Wells Health Resort was a spa, swimming pool, and health resort which first opened on the date of September 7, 1932 in the city of San Antonio, Texas. (Ref: https://opencorporates.com/companies/us_tx/0006230900)
According to the Handbook of Texas Online, The Terrell Wells Health Resort was once located 8 miles southwest of downtown San Antonio. This was a sulphur spring fed pool walled in all sides. An artesian well also provided water for the pool. A big rock structure across the street from Hutchins Boulevard served as the changing room and bathing facility. The big rock structure was two-story rock building with palm trees in front. That building was also a bath house at one time. (Ref: Handbook of Texas Online: Terrell Wells, Texas)
Terrell Wells Health Resort had scientific proof of scientific treatment that could treat patrons suffering from tired aching muscles and nerves of the neck could have quick relief by using their swimming pool due to the sulphur elements in the water. Terrell Wells Health Resort had a slogan and advertisement in newspapers which went, “Spend your vacation at Terrell Wells Health Resort.” (Ref: https://newspaperarchive.com/san-antonio-light-may-12-1948-p-26/)
Terrell Wells Health Resort would not operate for long. A lawsuit over the negligence of an 11 year old girl is what led the health resort to be shut down and ultimately dissolve. Terrell Wells Health Resort was brought to court over a case of negligence through a lawsuit on the date of February 14, 1936. This lawsuit was filed by H. L. Severeid for his minor daughter who was 11 years old at the time, Jane Marie Severeid, against Terrell Wells Health Resort. (Ref: https://www.anylaw.com/case/kuemmel-v-vradenburg/texas-supreme-court/04-18-1951/wckaYGYBTlTomsSBrBSz)
On the date of July 5, 1933, Jane Marie Severeid with two of her neighbor friends and the father of one of them, went to the resort of the appellant for the purpose of swimming. There was located in one of appellant's swimming pools a device for the purpose of pleasure and amusement, which device was shaped like a child's toy commonly called a "top"; that it was hollow in the center, airtight, flat on top, about 7 feet in diameter, and weighed about 400 pounds, and floated when the pool was full of water; that the top was in the big pool; that plaintiff and her companions played with said top; that at the time there was only about 1 foot of water in the big pool, as it was being filled, and that the top tilted to the side with the rim resting on the bottom of the pool, and that when it rolled to the side the rim passed over her toes crushing them and parts of her foot. (Ref: https://casetext.com/case/terrell-wells-health-resort-v-severeid)
The specific acts of negligence alleged were: (1) That the appellant was negligent in allowing the appellee and her companions to go into the pool; (2) in allowing her to play with the device or top; (3) in allowing appellee and her companions to climb onto the top; (4) that the appellant's place was in an unsafe condition; (5) that the device was in a dangerous condition; (6) that appellant was negligent in not having the pool full of water; (7) that appellant was negligent in not having a lifeguard to warn the appellee to stay away from the device.
The defendant answered by exceptions, general and special, general denial, specially denied the specific acts of negligence, and also alleged that Jane Marie Severeid was guilty of contributory negligence in various respects. Also, that the injury was the result of an unavoidable accident.
In answer to various special issues the jury found that the appellant extended the use of the pool to the appellee, that the pool was not in a reasonably safe condition, all of which was negligence, proximately causing the injuries; that the appellant's employees permitted the appellee to play on the device which was negligence and a proximate cause of the injuries; that the appellant failed to warn the appellee and her companions of the danger in playing with the device, all of which was negligence proximately causing the accident and resulting injuries. $2,400 was found to be the damages resulting to plaintiff by reason of the injuries. From this judgment the appellant Terrell Wells Health Resort, Inc., appeals, and predicates error in the judgment upon numerous assignments.
The court refused specially requested issue No. 12 made of three questions involving contributory negligence upon the part of Jane Marie Severeid. This is the third assignment of error. The first question inquired if she were negligent in entering the east pool where she was injured and in attempting to play with the "devices" therein, when she knew that the pool was almost empty. The second inquired if from a preponderance of the evidence such act was negligence; and the third whether such negligence, if any, was a "direct or a contributing" cause of the injuries.
The defendant had alleged that the plaintiff was guilty of negligence on various grounds. Evidently the issue of plaintiff's contributory negligence entered into the case in different ways. The trial court recognizing this situation seems to have undertaken to present such issue or issues (Jane Marie Severeid's negligence) to the jury for consideration by way of the above charge in connection with said definition. It is clearly a general charge on the law of the case. It was timely objected to by the appellant and should not have been given. At this late date it is difficult to understand why a general charge on the law should be injected into the submission of any case made upon special issues. It was neither an explanation nor a definition of a legal term required to be given under the statute. Such charges are uniformly condemned by the appellate courts of this state. Radford Grocery Co. v. Andrews (Tex.Com.App.) 15 S.W.2d 218; James A. Dick Co. v. Yanez (Tex. Civ. App.) 55 S.W.2d 600; Orange N.W. Ry. Co. v. Harris (Tex. Civ. App.) 57 S.W.2d 931; Texas Cities Gas Co. v. Weller (Tex.Civ.App.) 75 S.W.2d 159; Lewis v. Halbert (Tex. Civ. App.) 67 S.W.2d 430. See note 3, art. 2189, Vernon's Ann.Civ.St. for many late authorities.
What has been said requires the reversal of this case, but in view of another trial the following observations are made in response to the twelfth and remaining points.
The appellant contends by the twelfth proposition that since the plaintiff Jane Marie Severeid was only 11 years of age at the time of her injuries and the evidence failed to show want of ordinary prudence and discretion, it was error for the court to instruct the jury in effect that she was only required to exercise such degree of care as would ordinarily be exercised under the same or similar circumstances by a person possessing the degree of intelligence and prudence as was possessed by her.
Certainly the law imposes the duty upon minors to give such attention to surroundings and care to avoid danger as may fairly or reasonably be expected from persons of their age and capacity, and it is generally a question for the jury to determine under all the facts and circumstances whether a child exercised such care and discretion as might reasonably be expected of one of his age, capacity, and experience, situated as he was.
In this case the plaintiff alleged affirmatively that Jane Marie Severeid was a child of tender years, 11 years old at the time of the injuries, and was not possessed of the capacity and discretion of an adult; that she was not possessed of capacity and discretion to appreciate the dangers of the situation.
By this it appears that the pleader designed to have the nature of Jane Marie Severeid's acts in the premises determined by the standard that a child of tender years is not required to conform to the standard of behavior which it is reasonable to expect of an adult, but by the standard of behavior to be expected from a child of like age, intelligence, and experience under the surrounding circumstances. Passing on such a case, our Supreme Court said in Northern Texas Traction Company v. Thetford, 44 S.W.2d 902, 904: "In determining whether negligence is chargeable against a child who has passed beyond the age of irresponsibility, an inquiry as to the extent of his capacity to appreciate the dangers of the situation is of prime importance. The law requires that he exercise such degree of care as a person of his capacity would ordinarily exercise, under like circumstances. The matter of age, though germane to the question of capacity, is not necessarily of controlling force."
This matter was directly passed upon in the case of Terrell Wells Health Resort v. Severeid, Tex.Civ.App., 95 S.W.2d 526, and the issue of sole proximate cause in a case such as this was rejected and held improper. The court there held that the issue amounted to the imputation of negligence. We see no reason to depart from the rule as there announced. Accord, Kelley v. Texas & P. Ry. Co., Tex.Civ.App., 149 S.W. 349; Galveston, H. & H. Ry. Co. v. Moore, 59 Tex. 64; Restatement 11, Torts, §§ 449, 452.
Terrell Wells Health Resort was found guilty of negligence proximately causing the plaintiff's injuries and those findings would furnish a sufficient basis for the judgment, rendering the error under consideration harmless. However, the judgment must be reversed on other grounds, as above noted. Terrell Wells Health Resort was ordered to pay damages to the plaintiff aside verdict of jury as ordered by Fourth Court of Civil Appeals on June 26, 1936. (Ref: https://newspaperarchive.com/san-antonio-light-jun-26-1936-p-33/)
Terrell Wells Health Resort had voluntarily dissolved and closed down on the date of March 3, 1938. A portion of the Terrell Wells Health Resort was sold to Terrell Wells Swimming Pool due to proximity and location. (Ref: https://opencorporates.com/companies/us_tx/0006230900)
Terrell Wells Health Resort was located at 603 West Hutchins Avenue, San Antonio, Texas, US.
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