Gold v. Heath
| Decision Date | 12 July 1965 |
| Docket Number | No. 1,No. 50913,50913,1 |
| Citation | 392 S.W.2d 298 |
| Parties | Hans GOLD, a Minor, by Edie Gold, his Next Friend, Appellant, v. Marvin S. HEATH, Anne C. Heath, Marvin S. Heath, Executor of the Estate of Marcus S. Heath, Deceased, and Marvin S. Heath, Executor of the Estate of Flossie Mae Heath, Deceased, Respondents |
| Court | Missouri Supreme Court |
Harold J. Maddox, Alder & Morrison, Kansas City, for plaintiff-appellant.
Henry G. Eager, Donald H. Loudon, Kansas City, William E. Turnage, Liberty, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for respondents.
HIGGINS, Commissioner.
Action for $25,000 for personal injuries. The trial court sustained defendants' motion for directed verdict at the close of plaintiff's evidence and entered judgment for defendants. Plaintiff has appealed.
Plaintiff alleged in his petition that on June 13, 1963, he was an invitee of defendants at their Hillcrest Drive-In Theater in Clay County, Missouri, where he was further invited to play on a playground provided there by defendants; that while playing he was struck in the right eye by a rock thrown by a third person and injury resulted. He charged in paragraph 4 that defendants were careless and negligent.
'(a) In * * * failing to provide a safe place for this Plaintiff to play in;
'(b) In * * * failing to supervise the activities of their business invitees on said playground, or in the alternative in * * * failing to properly supervise the activities of their business invitees on said playground;
'(c) In * * * failing to exercise ordinary care for the safety of this Plaintiff
'(a) in that the Defendants knew or should have known * * * that children pick up rocks and throw them at each other and otherwise
'(b) the Defendants * * * could and should have foreseen that a child would pick up and throw a rock at this Plaintiff and injure him;
'(c) the Defendants knew or should have known that the presence of an attendant or attendants would have prevented the Plaintiff from having been injured.'
Defendants' pleading was a general denial.
Mrs. Harold J. (Marjorie) Maddox testified that on the evening of June 13, 1963, she and her husband, Harold J. Maddox (attorney for plaintiff), took their children and plaintiff, a neighbor boy, to the Hillcrest Drive-In Theater to see the motion pictures, 'Son of Flubber' and 'Hatari.' The Maddox children were Randy, 13, Craig, 11, a 7-year-old girl, and a baby; plaintiff was a friend and contemporary of Craig Maddox. Upon arrival at the theater plaintiff and Craig left the car and were next seen at the intermission between 'Son of Flubber' and 'Hatari' when they came to the car to get money for refreshments. Later, during the showing of 'Hatari,' Craig ran back to the car to report that Hans had been hit by a rock. Mr. and Mrs. Maddox left their car and went to the concession stand where a man was The entire party left immediately for home and, upon arrival there, she put Merthiolate and a Band-Aid on the cut. The next day she and Hans' mother took Hans to a doctor who hospitalized Hans. She did not know of any previous trouble, the boys said nothing about any fights, and no report was made of Hans' injury.
Plaintiff testified that when the showing of 'Hatari' started he and Craig watched a little of it from the patio and then went to the playground to watch it from there. They sat on the slide and, after watching for awhile, went to the merry-go-round. There were no theater employees there. Two other boys were playing on the swings nearby. 'When we almost slowed down, one boy on the swing threw a rock, right here on my eye.' He ran to the concession stand and a man came up who took him into the bathroom and tried to stop the bleeding with a tissue. On cross-examination he testified that there was no disagreement or fight with either of the boys; that there was no reason for anybody to throw a rock and that he did not know they were going to throw a rock. He did not see the rock thrown and did not see the rock that hit him. He had never seen anybody throw rocks at the playground before and neither he nor Craig had ever thrown any. He knew only what Craig told him about the incident.
Mr. and Mrs. Hans Guenther Gold, parents of plaintiff, testified to plaintiff's complaint of eye injury and hospitalization. Mr. Gold also stated that he had been to the playground two or three times before and two times after the incident, and that he had never seen anything dangerous there.
Defendant Marvin S. Heath, called by plaintiff, testified that he, his wife, and his father and mother owned the Hillcrest Drive-In Theater and that he was appointed manager by his partners. (Flossie Heath died prior to trial and Marcus S. Heath died following the trial.) The theater was opened June 4, 1954. A playground was opened two or three years later when two teeter-totters and a swing were installed in a 30' X 40' area. A new playground, 100' X 70', equipped with a jungle gym, two sets of swings, slide, teeter-totters, and merry-go-round, was put in use around Memorial Day, 1963. It was located behind the concession stand and was surfaced with
In the summer months as many as 20 or 21 people would be employed at the theater; one of them, Mrs. Frances Homan, managed the theater in his absence, and she was in charge on June 13, 1963. As of June 13, 1963, other employees would have included George Lucas, Danny Homan, Frances Homan, Jerry Richards, Richard Izatt, Bernard Buckley, Mrs. Ralph Sutton, and Ralph Sutton, Jr., and all had protection of patrons and supervision of the playground as part of their duties. He admitted to a possibility that children might pick up rocks, but had never seen a child throw one and did not know of any being thrown on the playground prior to June 13, 1963. He said that he heard Buckley state in giving a deposition that Buckley had heard of children throwing rocks at or rolling them down the slide.
Children were permitted to play on the playground as long as they behaved. If they misbehaved they were sent back to their cars. 'Older and bigger' children were not allowed on the playground. The playground was lighted by floodlights and by light from the snack bar. The playground was located as it was with the assistance of The Miracle Equipment Company to provide the most in supervision with certain employees having specific duties of supervising the playground in addition of other duties. The first notice anyone had of this incident was the service inconnection with the filing of the suit sometime after the occurrence.
Craig Allen Maddox testified that there were no employees on the playground when he and Hans were on the slide just before Hans was struck. Hans was struck by a rock thrown by another boy. He and Hans were then riding the merry-go-round and two other boys were present. There had been no fights, arguments, or words between the boys. He said he saw the boy who threw the rock when Hans was being helped by a man at the restroom. He tried to hold the boy but his mother came and took him away. He did not know the boy. On cross-examination he stated that only one rock was thrown and that the boy just 'pulled back' and threw it. The thrower was on the swings several feet away from the merry-go-round. He had never seen anyone else throw a rock on the playground; he and Hans threw no rocks, and there were no fights or disputes there, although Hans had been chased by another boy at intermission for going in front of him at the slide.
Frances Lucille Homan testified that she managed the snack bar and acted as theater manager when Mr. Heath was not there, as was the case June 13, 1963. Prior (23 years before) to June 13, 1963, one of her sons hit another of her sons with a rock. She was standing ten feet away, saw him pick up the rock and throw it, and could not stop him. She stated that her son Danny and Mr. Williams were assigned most of the duty of watching the playground. No one reported any incident of injury to her on June 13, 1963. She had never seen any other children throw rocks at each other.
Danny Homan testified that he had duties of watching the playground and keeping order there and that he would attempt to prevent it if he saw a boy about to throw a rock at another. He had seen boys and girls throw rocks up into the projection beams on the other side of the snack bar from the playground, but had not seen any rocks thrown at another child. If he saw a boy reach down to pick up a rock he would tell him to put it down. He would not be able to stop a rock from being thrown unless he was 'right on top of him.'
Harold J. Richard, another employee, testified that he was generally aware that children sometimes threw rocks. He did not recall whether he was at the theater June 13, 1963, and did not recall any of the incidents related by Hans and Craig. On cross-examination he stated that he had never observed any rock throwing anywhere on the theater premises.
Ralph Lee Sutton also had duties involving supervision of the playground, and he had seen children throw rocks at the exit signs and up into the lights but had not seen any rocks thrown at children there. If he saw any rock throwing, he would try to stop it.
Appellant says the court erred in sustaining the motion for directed verdict because:
'1. There was substantial evidence of prior notice * * * of the type of conduct * * * from which the defendants could have reasonably anticipated and foreseen * * * injury to * * * plaintiff.
Respondents counter this charge and say the court was correct '...
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