Biskup v. Hoffman, No. 19520.

• Court: Missouri Court of Appeals
• Writing for the Court: Bennick
• Citation: 287 S.W. 865
• Parties: BISKUP v. HOFFMAN et al.
• Docket Number: No. 19520.
• Decision Date: 22 June 1926

287 S.W. 865 BISKUP
v.
HOFFMAN et al. No. 19520. St. Louis Court of Appeals. Missouri. June 22, 1926. Rehearing Denied July 12, 1926.

[287 S.W. 866]

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Walter Biskup, by Oscar Biskup, his next friend, against Homer A. Hoffman and George Blumeyer and another. Plaintiff dismissed his case as to the other defendant, and, from a judgment for plaintiff against the defendants named, they appeal. Affirmed as to defendant Hoffman, and reversed and remanded as to defendant Blumeyer.

Grimm & Grimm and Norman Begeman, all of St. Louis, for appellant Blumeyer.

Leahy, Saunders & Walther, of St. Louis, for appellant Hoffman.

John F. Gillespie and Joseph A. Broderick, both of St. Louis, for respondent.

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 $6,000, 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 14 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, Mo., 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 unskilfulness and inexperience 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 hall, and said defendant negligently and carelessly failed to warn plaintiff, as aforesaid, and negligently and carelessly drove said ball toward, against, at, and upon plaintiff, as aforesaid."

The answer of defendant Blumeyer was a general denial, coupled with a plea of contributory negligence. The answer of defendant Hoffman was a general denial, coupled with pleas of contributory negligence and assumption of risk, Plaintiff's reply to each answer was conventional.

287 S.W. 867

Plaintiff was injured on July 4, 1922, and was 12 years of age at the time. He had served as a caddy at the Sunset Hill Country Club on Saturdays and Sundays for one and one-half years before his injury was received.

The evidence disclosed that it was the duty of a boy desiring employment as a caddy to report to the caddy master at the club, although he was not required to report at any particular time or on any particular day. The caddy master made regulations concerning the character of boys who might caddy, and was in control over them while they were at the caddy house. He also gave the boys general instructions as to their duties as caddies. When a member of the club desired the services of a caddy, he applied at the caddy house, and a boy was assigned to him by the caddy master. There was no particular order or system for such assignments. If the member did not want the boy assigned to him he could ask for another, and the caddy was not required to serve a member unless it was agreeable to him. It was also permissible for a member to arrange in advance with the caddy for his services on any particular occasion.

As soon as the caddy was assigned to a member, it became his duty to report at No. 1 tee, and thereafter carry the member's bag of clubs and when the ball was driven keep his eye on it, and locate it for the player. The caddy stayed with the member for whom he was working, and never ran ahead of him, unless he was directed so to do. It was the caddy's duty to follow all instructions given him by the member to whom he was assigned.

The caddies received no pay during the time they were waiting at the caddy house, but as soon as one was assigned to a member he was given a ticket bearing the member's name, and the ticket was then stamped in a clock showing the time that the caddy's employment began. As soon as his services were completed, the ticket was again stamped in a clock on the course, and was signed by the member and given to the caddy, who in turn delivered it to the caddy master. The boys were paid at the rate of 30 cents per hour, and at the end of the week they were given their pay envelopes, and the amounts due as shown by the several tickets were charged against the accounts of the respective members who had used the caddy during the week. In some instances the member himself paid the caddy at the end of the game.

On the day in question plaintiff was assigned to defendant Blumeyer, who had been a member of the Sunset Hill Country Club for 10 years. Hoffman was Blumeyer's guest. Throughout the game, Hoffman, although he " had been playing golf for approximately 3 years, had been shooting poorly. Seventeen holes were played without mishap. Hoffman drove from the seventeenth tee for a distance of about 120 yards; his ball stopping in the center of the fairway. Blumeyer then drove 100 feet farther than Hoffman, but landed in the rough to the left of the fairway. Both defendants and the caddies walked together from the tee in the directions in which the balls had gone; Hoffman and his caddy stopping at Hoffman's ball, and Blumeyer and plaintiff proceeding on towards the point where Blumeyer's ball lay. When they were yet 25 feet from the ball, plaintiff, hearing Hoffman call the warning cry "Fore," turned to look towards him, and was instantly struck in the right eye by the ball, which Hoffman had hit at such speed that plaintiff did not have time to dodge it. Hoffman's ball swerved sharply towards the left in its flight.

There is some dispute in the evidence as to when Hoffman called "Fore." His caddy testified that it was during his upstroke, and that immediately thereafter he struck the ball. Hoffman himself testified that before striking the ball he called to Blumeyer to watch its flight, and that, while the ball was in the air, he called "Fore," when he observed plaintiff in the path of it. Hoffman's request to Blumeyer to keep an eye on the ball was not heard by plaintiff. Blumeyer testified that he himself called "Fore" just before Hoffman struck the ball.

Plaintiff testified that Blumeyer gave him no directions as to where he should stand or what he should do as they proceeded away from Hoffman towards the point where Blumeyer's ball was lying. At the time plaintiff was struck, he was 50 feet from the center, and at the edge of the fairway, and was about 5 feet from Blumeyer.

It was disclosed that the ball, when struck, often flies in a different course from that intended, and that, when it flies to the right, it is called a slice, and to the left a hook; that all players both hook and slice the ball quite frequently, although, experienced players are less prone to do this than inexperienced ones. It was also shown that it is customary for a golf player before driving to call "Fore" when some other person is in the direction in which he intends to send the ball, or in which the ball might be carried if struck inaccurately, or if diverted from its course by the wind and that, when a player calls "Fore," others who may be on the links look towards him to determine his location, and then turn their backs towards him while he drives so as to avoid being struck in the face by the ball. It was not disputed that on the day when he was injured school was not in session, and that plaintiff had no certificate permitting him to be employed at such work.

Both defendants assign as error...