Clawson v. Stockton Golf and Country Club

• Decision Date: 07 October 1963
• Citation: 220 Cal.App.2d 886,34 Cal.Rptr. 184
• Court: California Court of Appeals Court of Appeals
• Parties: Robert Dwight CLAWSON, a minor, etc., Plaintiff and Respondent, v. STOCKTON GOLF AND COUNTRY CLUB, Defendant and Appellant. Civ. 10520.

Page 184

34 Cal.Rptr. 184

220 Cal.App.2d 886

Robert Dwight CLAWSON, a minor, etc., Plaintiff and Respondent, v. STOCKTON GOLF AND COUNTRY CLUB, Defendant and Appellant.

Civ. 10520.

District Court of Appeal, Third District, California.

Oct. 7, 1963.

Hearing Denied Dec. 4, 1963.

Charles A. Zeller, Stockton, for appellant.

Jack Miller, San Francisco, and Harvey M. Hakeem, Stockton, for respondent.

JANES, Justice pro tem.

Plaintiff minor brought this action against the Stockton Golf and Country Club and Craig Moore, one of its members, to recover damages for personal injuries suffered when he was struck, while searching for golf balls on the club's golf course, by a ball driven by defendant Moore. The jury returned a verdict in favor of the golfer against plaintiff and in favor of plaintiff against the club. Defendant club appeals from the ensuing judgment.

Defendant's principal contention on appeal is that the trial court committed prejudicial error by instructing the jury that plaintiff was a business visitor or invitee of defendant if plaintiff were on defendant's property, at the time of the accident, for the purpose of finding golf balls and then selling the balls to the golf professional at defendant's caddy house.

An invitee or business visitor is generally defined as a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them. (Rest., Torts, sec. 332.) The two ultimate facts establishing the invitee status are thus invitation and business purpose. Plaintiff concedes that the questioned instruction, which is hereinafter set out in fall, omitted the invitation aspect of the status. He contends, however, that the omission was not erroneous because the invitation was established as a matter of law by undisputed evidence. The question before us, therefore, is to determine whether there was any evidence of sufficient substantiality which required submitting to the jury, as a factual issue, the question of the invitation aspect of plaintiff's status on defendant's property at the time and place of injury. In deciding that question the evidence, with the inferences therefrom, must be viewed in the light most favorable to the defendant. (Howard v. Alta Chevrolet Co., 111 Cal.App.2d 38, 42, 243 P.2d 804.) With these rules in mind, we turn to the evidence.

The defendant Stockton Golf and Country Club (hereinafter 'club') had for many years prior to the accident operated a country club and golf course in West Stockton. The club, a California corporation, was operated by a board of directors, whose policies and orders were executed by its president and other officers through employees of the club, among them its golf professional and his assistant, and a foreman in charge of grounds maintenance. The golf professional was charged with over-all supervision of the golf course. Built in 1915, in an area then rural, the club and golf course by 1958 had become surrounded on several sides by residential subdivisions. Beginning in 1946 the population of the area had increased greatly, until at the time of the accident, on May 31, 1958, the area was well populated. The club's golf course, the only one in the area, was an 18-hole course, approximately 130 acres in size and rectangular in shape. A paved 2-lane road ran through the center of it from the main entrance on the east to the club house on the west, of which the 'caddy house' or 'pro shop' was a part. The club property was for the most part unfenced, except for a strip of 6-foot 'cyclone' fencing along the southwest boundary where the property bordered upon the Stockton Deep Water Channel, and certain private fences erected by adjoining property owners. There was also a fence along the east boundary of the property, where the present accident occurred. The area of the main entrance on the east of the property was neither fenced nor barricaded; the boundary there was delineated by a line of narrow posts placed sufficiently close together to prevent the passage of automobiles. The main entrance and other points of access to the property were open ways, without gates that could be closed or locked, and without chains or other barriers.

The sixth hole and fairway of the golf course lay in a general north-south direction, the tee or starting point being to the north and the play proceeding to the green on the south. Along the east edge of this fairway was a row of large trees, and to the east or outside of the trees was a wire fence which marked the boundary of the golf course. The fence was erected as a 3-strand fence, to a height of 3 or 3 1/2 feet, and extended for a distance of approximately 500 years along the east boundary and across part of the north boundary of the course. The accident in which plaintiff suffered his injury occurred in the row of trees, some 200 yards south of the sixth tee and a foot or two west of the east boundary fence.

Near the place of accident was an 'arch' or opening in the wire fence, ungated, which was placed there so golfers could leave and return to the course in order to retrieve balls driven over the fence and out of bounds. Near the arch stood a 'Private Property--No Trespassing' sign. A well-defined path led through the arch from the course proper to the out-of-bounds area. Outside the fence at this point was an open culvert or ditch, running parallel to the fence line and row of trees and separating the golf course from Rainier Avenue, a public way also extending in a north-south direction.

Plaintiff produced evidence which showed that for many years, but particularly since 1946, the club had been troubled by the presence of young boys on the golf course, to an extent that prior to the time of plaintiff's injury their presence had been discussed at several meetings of its board of directors. The problem increased over the years with the increase in population. It was in an attempt to cope with this situation that the club had erected the fence along the east boundary. Balls driven from the sixth tee sometimes 'hooked' or curved sharply to the left into the area of the row of trees, with the result that the row of trees was a good place for boys to look for lost golf balls; they were often seen there searching for balls. The grass around the trees was longer than that on the rest of the fairway because the trees prevented a close mowing of the grass; outside the fence, in the area of the ditch, the grass was even longer. In addition to the wire fence, signs lettered 'Private Property--No Trespassing' were erected, about a year before the accident, near the place of accident and at other points on the boundaries of the property.

It was further shown by plaintiff that the directors of the club, in addition to erecting the fence and signs, had adopted a policy of encouraging club members to 'run off' the boys when they were seen on the golf course. No written admonitions to this effect were placed in the club's bulletin, in its written rules and regulations or on its bulletin board; the policy of discouraging and expelling the boys from the course was communicated to the membership only verbally. There were about 400 members of the club, although the evidence suggests that not all of them were playing members. No attempt was made to convey the admonition to guests or visiting golfers who used the course.

It was shown by plaintiff and admitted by the club that for more than 30 years the golf professional and his assistant, with knowledge of the club officers and its directors, had bought golf balls retrieved by the boys and delivered by them to the caddy house in the west of the property. This was a matter of common knowledge around the club. No policy was adopted forbidding purchase of the balls nor had anyone ever ordered the boys out of the caddy house when they went there to sell the golf balls which they had found. The golf professional bought about 12 balls a week from the boys and his assistant bought about twice that number. The boys were paid five or ten cents for each ball, depending upon its condition. Those of the better balls which bore name imprints were returned to their owners for the same price paid to the boys; those which could not be identified were sold to members of the club for thirty-five cents a ball. The remaining balls were used on the club's driving range.

Plaintiff showed that boys were sometimes seen on the course itself selling balls to players. When this was observed the boys were run off the course by the caddies; they often returned, however, as soon as the caddies turned their backs. Club members were never directed not to buy balls from boys who came onto the course itself.

For the purpose of selling balls at the caddy house, the boys walked up the main drive through the center of the course; they did not cross the fairway or playing area. The golf professional, when purchasing balls from the boys, occasionally inquired as to where the balls had been found. The assistant professional never asked this question of the boys. Both professionals, however, warned the boys to stay off the golf course itself.

Plaintiff showed, as we have seen, that the boys returned to the course almost as rapidly as they were expelled; further, that they ignored the 'no trespassing' signs, continuing to come onto the course after the signs were erected. It was shown that the wire fence was no more effective; its construction was such that children could go over, through and under it. Adults, too, were known to go through and over the fence on many occasions in order to retrieve errant golf balls. The fence was 3-strand in places and 2-strand in others; partly barbed and partly plain wire. Strands of wire occasionally broke and portions of the fence were down for periods of time. Boys passed freely through the arches, gates and other openings despite the 'no trespassing' signs. Children...