Biskup v. Hoffman

• Citation: 287 S.W. 865,220 Mo.App. 542
• Parties: WALTER BISKUP, BY OSCAR BISKUP, HIS NEXT FRIEND, RESPONDENT, v. HOMER A. HOFFMAN AND GEORGE BLUMEYER, APPELLANTS.
• Decision Date: 22 June 1926
• Court: Missouri Court of Appeals

287 S.W. 865

220 Mo.App. 542

WALTER BISKUP, BY OSCAR BISKUP, HIS NEXT FRIEND, RESPONDENT, v. HOMER A. HOFFMAN AND GEORGE BLUMEYER, APPELLANTS.

Court of Appeals of Missouri, St. Louis

June 22, 1926

Appeal from the Circuit Court of the City of St. Louis.--Hon, Frank Landwehr, Judge.

AFFIRMED AS TO DEFENDANT HOFFMAN.

REVERSED AND REMANDED AS TO DEFENDANT BLUMEYER.

AFFIRMED AS TO DEFENDANT HOFFMAN. REVERSED AND REMANDED AS TO DEFENDANT BLUMEYER.

Leahy Saunders & Walther for appellant Hoffman.

(1) There was not sufficient evidence of negligence on the part of defendant Hoffman to take the case to the jury, and the court should have sustained his demurrer to the evidence and directed the jury to return a verdict in his favor at the close of plaintiff's case and at the close of the whole case. (2) Plaintiff was guilty of contributory negligence as a matter of law and the court should have directed a verdict for defendant Hoffman. (3) Considering the case most favorably for plaintiff it was one of pure accident, unmixed with negligence on the part of defendant Hoffman, and the court should have given instruction No. 3 requested by defendant Hoffman. Under the evidence the risk of being struck by a hooked ball, such as that which struck plaintiff was a risk ordinarily incident and ever present to one engaging in a game of golf, or to one employed as a caddy and plaintiff assumed such risk in acting as a caddy. Toohey v. Webster, 117 A. 838, 23 A. L. R. 443; Feary v Street Railway Co., 162 Mo. 99. (4) The court erred in refusing to give defendant Hoffman's instruction No. 3. If, under the evidence, the hooking of the ball was a pure accident, so that defendant Hoffman could not reasonably have anticipated that it would veer so sharply from the intended line of flight, he could not be held liable, and this instruction should have been given. Feary v. Street Railway Co., 162 Mo. 99.

Grimm & Grimm and Norman Begeman for appellant Blumeyer.

(1) There was no evidence of any negligence on the part of defendant Blumeyer unless he could be held guilty of negligence on the ground that he employed a boy under the age of fourteen in violation of the statute. (2) But even though there were evidence of negligent failure to warn or a negligent order, the amended petition charges as distinct acts of negligence the violation of sec. 1106, R. S. 1919, and Laws of Mo. 1921, p. 184, so that these assignments of negligence are in the case. (3) But sec. 1106, R. S. 1919, and the entire article of which it forms a part were expressly repealed by Laws of Mo. 1921, p. 184. But if it had not been repealed in terms it would have been repealed by implication. Maret v. Hough, 185 S.W. 544. (4) The defendant Blumeyer did not violate any provision of the Act of 1921 (Laws Mo. 1921, p. 184 et seq.), since he did not employ the plaintiff, who was the employee of the Sunset Hill Country Club within the meaning of the Act of 1921. Claremont Country Club v. Industrial Com., 174 Cal. 394; Indian Hill Country Club v. Industrial Com., 309 Ills. 271; Gaines v. Bard, 57 Ark. 615; Quarman v. Burnett, 6 Mees. & W. 499; Sluder v. Transit Co., 189 Mo. 139 et seq.; 1 Labatt, Master & Serv., secs. 19, 52, 61. (5) The employment of plaintiff in violation of the statute was negligence, but this is not of itself sufficient to warrant a recovery. There must be a causal connection between the negligence alleged and the injury to plaintiff. Here there is wanting such causal connection. See Act of 1921, p. 184 et seq.; Lindell v. Stone, 77 N.H. 583; Boesel v. Wells Fargo & Co., 260 Mo. 463; Platt v. Ludlow, 227 S.W. 899; Roper v. Greenspon, 192 S.W. 149; 4 Labatt, Master & Serv., 4756, sec. 157a & note; Stagg v. Weston, 169 Mo. 497; Mylett v. Montrose, Co., 211 Mo.App. 97. (6) The fact that Blumeyer had temporary control over plaintiff did not make him the employer within the meaning of the statute. Gaines v. Bard, 57 Ark. 615; Ames v. Jordan, 71 Me. 540; Sluder v. Transit Co., 189 Mo. 139.

John F. Gillespie and Joseph A. Broderick for respondent.

(1) Defendant Blumeyer employed plaintiff within the meaning of section 1106, R. S. 1919, and Laws of 1921, page 185. (2) Laws of 1921, page 185, does not repeal section 1106, R. S. 1919, because it does not expressly repeal it and is not inconsistent with it. (3) Plaintiff's employment by defendant Blumeyer, in violation of the statute, was negligence. Bright v. Sammons, 214 S.W. 425; Mylett v. Montrose, 211 Mo.App. 635, 249 S.W. 97. (4) Plaintiff was injured by a risk due to the illegal employment, and therefore the employment was the proximate cause of the injury. Bright v. Sammons, 214 S.W. 425; Mylett v. Montrose, 211 Mo.App. 635, 249 S.W. 97. (5) Defendant Blumeyer was negligent in taking plaintiff into a position of danger and in failing to warn him. (6) The failure of plaintiff to ask instructions is not error. Roemer v. Wells, 257 S.W. 1056; Wingfield v. Wabash Railroad, 257 Mo. 347, 166 S.W. 1037; Williams v. Columbia Taxicab Co., 241 S.W. 970; Meyers v. Atlas Portland Cement Co., 260 S.W. 778. (7) Appellants did not except to plaintiff's failure to ask an instruction on the whole case nor the court's failure to give an instruction on the whole case, and they cannot now complain of it. Hayes v. Sheffield Ice Co., 282 Mo. 446, 221 S.W. 705. (8) Appellants had the right to examine the court's instructions before they were read to the jury and to ask any other or further instructions they desired after such an examination. (9) The evidence shows that defendant Hoffman struck the ball when he knew that plaintiff was in a position where he might be struck, and when he further knew that the ball might not go in the direction he intended it to, but might strike plaintiff, and that he failed to give timely warning. (10) Appellant Blumeyer was negligent in failing to warn plaintiff when he saw Hoffman about to shoot, and plaintiff, who was watching Blumeyer's ball, as was his duty, was in a position where he might be struck. (11) In considering a demurrer to the evidence all reasonable inferences in favor of plaintiff must be drawn. (12) The court did not commit any error in refusing instructions offered by defendant Blumeyer and refused by the court. (13) The question of contributory negligence was for the jury. Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071. (14) The court did not commit error in refusing instructions offered by defendant Hoffman and refused by the court.

BENNICK, C. Daues, P. J., and Nipper, J., concur; Becker, J., not sitting.

OPINION

BENNICK, C.--

This is an action for damages for personal injuries sustained by plaintiff by being struck in the eye by a golf ball driven by defendant Hoffman, a guest of defendant Blumeyer, on the golf course of the Sunset Hill Country Club, which was originally a defendant in this action. At the close of his case plaintiff dismissed as to Sunset Hill Country Club. The verdict was for plaintiff and against defendants Hoffman and Blumeyer in the sum of $ 6000, and judgment was rendered thereon, from which both of such defendants have appealed.

The negligence charged against defendants was as follows:

"Plaintiff states that defendant Blumeyer was negligent in this, to-wit that, in violation of law and the Statutes of Missouri, he employed, permitted and suffered plaintiff to work in said gainful occupation while he was under the age of fourteen years, and without requiring plaintiff to have, and while plaintiff did not have, a permit certificate issued by the principal of the public school district wherein he resided, or by any person appointed by an order of the Board of Education of the city of St. Louis, Missouri, wherein he resided; that defendant Blumeyer knew, or by the exercise of ordinary care should have known, that defendant Hoffman was an inexperienced and unskillful player, and liable to hit the ball in a direction other than that which plaintiff had reason to believe it would be hit, as aforesaid; and defendant Blumeyer knew, or by the exercise of ordinary care should have known, that, in view of the said unskillfulness and experience of said Hoffman, plaintiff was liable to be struck and injured in the position where he was, as aforesaid; that defendant Blumeyer was a man of mature age and judgment, and an experienced golf player, and plaintiff was under his direction and control, and lacked such age, experience, judgment and knowledge of said Hoffman's inexperience and unskillfulness, and defendant Blumeyer should have warned plaintiff of the danger of his said position, and should have instructed plaintiff to take a position where he would be safe, and not exposed to the said danger, but that said defendant Blumeyer negligently and carelessly failed to so warn or instruct plaintiff.

"Plaintiff states that defendant Hoffman was negligent in this, to-wit that he knew, or should have known, that he was an inexperienced and unskillful player, and unable to drive the ball where it should have been driven, as aforesaid; and that, if he drove said ball while plaintiff was in the position aforesaid, it would be liable to strike plaintiff; and he saw, or by the exercise of ordinary care should have seen, plaintiff in said position; and knew, or by the exercise of ordinary care should have known, that plaintiff was in danger of being struck by the ball in said position and should have warned plaintiff of said danger, and should not have driven the ball while plaintiff was in said position, and should not have driven the said ball directly toward, against, at, and upon plaintiff, and should not have driven said ball without sufficiently warning plaintiff of his intention so to do, and of the danger to plaintiff of being so struck by said ball, and said defendant...