Fink v. Klein

• Court: Kansas Supreme Court
• Writing for the Court: Leonard O. Thomas, Kansas City, argued the cause. J. E. Schroeder, Lee E. Weeks; SCHROEDER
• Citation: Fink v. Klein, 348 P.2d 620, 186 Kan. 12 (Kan. 1960)
• Decision Date: 23 January 1960
• Docket Number: No. 41528,41528
• Parties: Ruth FINK, Appellant, v. Randy KLEIN and the Meadowbrook Golf and Country Club, a Corporation, Appellees.

Page 620

348 P.2d 620

186 Kan. 12

Ruth FINK, Appellant, v. Randy KLEIN and the Meadowbrook Golf and Country Club, a Corporation, Appellees.

No. 41528.

Supreme Court of Kansas.

Jan. 23, 1960.

Rehearing Denied March 9, 1960.

Syllabus by the Court

In a damage action for personal injuries sustained by a plaintiff who was struck by a golf ball while on a golf course as a nonplayer, the jury returned a verdict for the defendants upon a finding of contributory negligence by the plaintiff, among others, and it is held: It does not affirmatively appear, after a careful examination of the record upon numerous specifications of error assigned, the plaintiff was denied a fair trial or that her substantial rights have been prejudicially affected. Substantial justice has been done by the judgment of the trial court.

Joseph P. Jenkins, Kansas City, argued the cause, and Joseph Cohen, Charles S. Schnider, John E. Shamberg, Barton P. Cohen, Jacob F. May, Jr., Norma Braly and Frederick K. Cross, Kansas City, were with him on the brief, for appellant.

Edw. M. Boddington, Jr., Kansas City, argued the cause, and Edw. M. Boddington and Richard J. Croker, Kansas City, were with him on the brief for appellee, Randy Klein.

Leonard O. Thomas, Kansas City, argued the cause. J. E. Schroeder, Lee E. Weeks, J. D. Lysaught, Robert H. Bingham, Charles Callup and Miles D. Mustain, Kansas City, and Howard T. Payne, Olathe, were with him on the brief for appellee, Meadowbrook Golf and Country Club.

SCHROEDER, Justice.

This is a damage action for personal injuries sustained by the plaintiff when she was struck by a golf ball on the Meadowbrook Golf and Country Club in Johnson County, Kansas. From a verdict and judgment adverse to the plaintiff she appeals specifying numerous trial errors.

The jury in answer to special questions found the plaintiff guilty of contributory negligence.

The jury trial consumed five days and the abstracted record presented to this court on appeal approximates 270 pages. Facts established by the evidence which are uncontroverted may be stated as follows: Ruth Fink (plaintiff-appellant) by reason of her husband's membership in the Meadowbrook Golf and Country Club (defendant-appellee, hereafter referred to as the Club) had access to and enjoyed all the privileges of membership in the Club. She was a housewife, fifty-six years of age, and had a great interest in the game of golf. By reason of her experience over a number of years in playing golf she was a proficient player. In the year 1956 she was Chairman of the Junior Golf Committee and took charge of the Junior Tournaments at the Club. Her work with the children included instruction with respect to the nature of the game, the dangers of golf, the rules of the game, and golf etiquette. Randy Klein (defendant-appellee) in 1956 was twelve years of age and was among the children instructed by the appellant. She knew the kind of golf Randy played and was well acquainted with him.

The Club invited the Kansas City Junior Golfers to hold an invitational tournament on its course. It was scheduled to start on Monday, August 20, 1956. As customary before the tournament a rules committee went on the course to stake out hazards and make special rules depending upon local conditions. On the rules committee was the golf professional of the Club, Buster Mills (hereafter referred to as the Pro), the Chairman of the Junior Golf Committee (appellant), and a few others.

The rules committee met at 1:30 p. m., Saturday, the 18th day of August, 1956, at the Club. They proceeded in the automobile of the Pro as nonplayers across the golf course to carry on the business of the committee. They went first to hole No. 11 and then across to hold No. 16. This hole is 420 yards long running from the north, where the tee is located, to the south where the green is located. The fairway is 40 yards wide and makes a slight dog-leg to the left at about 250 yards. At this point on the left of the fairway at the edge of the rough is a large tree, the branches of which hang partially over the fairway. To the right side of the fairway in the rough and running adjacent to the fairway is a creek. Trees were growing in the creek and a limb had fallen from one of the trees. The committee, of which the appellant was a member, left the automobile west of the creek on the right side of the fairway and, after crossing the creek, walked to the 16th fairway, then along the edge of the rough on the right side in a southerly direction for about 100 yards to the point where the limb had fallen. They stood at this point all facing the south, away from the tee, for approximately five minutes. At this point the appellant was struck by a golf ball driven by Randy Klein. It struck her between the legs from the back, a few inches above the knees, making a hole through the lower part of her dress at such place. The ball struck the inside of both legs.

As a result thereof the appellant alleged she suffered severe bruises and contusions causing her to have surgery, which in turn caused cosmetic damage consisting of a large disfiguring scar extending from her groin to her right ankle. Among other things, she alleged severe shock to her entire nervous system.

Randy Klein had driven his first shot from the 16th tee into the rough on the left side of the fairway. From this point the large tree on the left of the fairway was directly between his ball and the green. He was therefore shooting his second shot for position with a No. 4 wood out of the rough aiming for the center of the fairway to the right of the tree, but upon shooting he 'toed' the ball and it went into the air and to the right across the fairway, headed directly toward the group on the rules committee about 100 yards distant. It struck the appellant.

At no time did the appellant see Randy Klein or his companion golfer, Dennis Swartz, on the 16th hole, and no one on the committee warned her of the presence of anyone on the course at the time, particularly the 16th hole. At no time did the appellant look to the north toward the tee on the 16th hole, but she faced continually to the south or away from the tee. There were no obstructions to prevent members of the committee from seeing anyone on the 16th tee or on the 16th hole to the north of the point where the committee was standing.

The Pro testified that as he walked up onto the rough on the west side of the 16th fairway, he saw Randy Klein and Dennis Swartz and recognized who they were. He said the boys were in plain view from the time he walked up there until the incident occurred.

Concerning other facts upon which the evidence was not altogether consistent we shall turn to the findings of the jury.

The jury in answer to special questions found that when Randy Klein toed the golf shot in question he called 'fore', but that he was guilty of negligence which was a proximate cause of the appellant's injuries because he gave no warning, by calling 'fore', before shooting. The jury found the Club guilty of negligence by reason of the failure of the Club Pro to warn the other members of his party of the approaching players.

The jury in answer to special questions found the appellant was Junior Chairman at the Club on August 18, 1956, and during the weeks immediately prior thereto; that the Club scheduled a Club Junior Tournament prior to August 18, 1956, in which the match being played by Randy Klein and Dennis Swartz on August 18th was one of the matches to be played to complete the tournament; that the appellant was in charge of the Club tournament; that the appellant knew, or by the exercise of reasonable care, should have known before she was injured that Randy Klein and Dennis Swartz were playing golf on the course; that the two boys were in plain view of the appellant, if she had looked, at all times as she walked on the rough adjacent to the 16th fairway and before she was injured; that the appellant did not exercise reasonable care for her own safety while on the golf course at the time in question; that the golf shot which Randy Klein toed should have been anticipated by the appellant, a nonplayer on the course; and that the appellant was negligent, which negligence contributed to her injuries and damages, if any, as a direct and proximate cause thereof.

The record discloses substantial evidence to support each of the foregoing findings made by the jury.

The foregoing findings of the jury indicate that it accepted the testimony of Randy Klein and Dennis Swartz to the effect that they were scheduled to play off a match in the Club Junior Tournament on Friday, August 17, 1956, but appellant on that date told them to play off the tournament on the next day, Saturday, August 18th. They each testified that on ...