Hudson v. Kansas City Baseball Club

Decision Date28 July 1942
Docket Number38001
Citation164 S.W.2d 318,349 Mo. 1215
PartiesEugene L. Hudson, Appellant, v. Kansas City Baseball Club, Inc
CourtMissouri Supreme Court

Rehearing Denied September 8, 1942.

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.

Affirmed.

Barnett Seddon & James for appellant.

(1) The owner of premises who invites others to enter thereupon, particularly an owner who does so for his own profit, is under the duty to such invitees to make his property reasonably safe for their use for the purposes for which they are invited thereupon. Oakley v. Richards, 275 Mo. 266, 204 S.W. 505; Berberet v. Electric Park Amusement Co., 319 Mo. 275, 3 S.W.2d 1025; Murrell v. Smith, 152 Mo.App. 95, 133 S.W. 76; Purdy v. Loew's St. Louis Realty & Amusement Corp., 220 Mo.App. 854, 294 S.W. 751; Murphy v. Electric Park Amusement Co., 209 Mo.App. 638, 241 S.W. 651; 62 C. J., Theatres and Shows, p. 868; 26 R. C. L., Theatres and Shows, p. 713. (2) The producer of an exhibition for commercial profit is under the duty to furnish a spectator thereof, whom he charges an admission fee, reasonable protection from injury while in attendance upon said exhibition, and particularly is he under such a duty where, by the sale at the ticket window, he makes the assignment of the particular seat in which such spectator shall sit and then seats him there. See citations under Point (1). (3) Such an owner of a baseball park, and such a producer of a baseball game, fails to render his property reasonably safe for invitees in their use thereof, and fails to afford them reasonable protection from injury, when he fails to erect some protection across a line running from home plate to any seat in the grandstand to which the public is invited, and which is within ordinary reach of a foul ball; and the only escape of such owner and producer from liability in such respect lies in his privilege (if any) to claim that the spectator accepts the risk. Crane v. Kansas City Baseball and Exhibition Co., 168 Mo.App. 301, 153 S.W. 1076; Edling v. Kansas City Baseball and Exhibition Co., 181 Mo.App. 327, 168 S.W. 908; Grimes v. American League Baseball Co., 78 S.W.2d 520; Olds v. St. Louis Natl. Baseball Club, 232 Mo.App. 897, 104 S.W. 746; retrial, 119 S.W.2d 1000; Brummerhoff v. St. Louis Natl. Baseball Club, 149 S.W.2d 382; Tinkle v. St. Louis & S. F. Railroad Co., 212 Mo. 445; Burt v. Nichols, 264 Mo. 1; Fillingham v. St. Louis Transit Co., 102 Mo.App. 573. (4) Such doctrine of spectator's risk may be invoked only when the owner and producer has met the requirement that the spectator whom, for the owner's profit, he has invited to such a dangerous spot has notice of the hazard which such spectator is accepting. Particularly must such notice be clear and unmistakable, where the spectator has no opportunity first to view the situation, and then exercise an election with reference to the spot from which he will view the exhibition, but is definitely assigned to such spot by the owner and producer at the gate where the spectator pays his admission charge, and before he has seen the spot assigned to him. See citations under Point (3).

Watson, Ess, Groner, Barnett & Whittaker for respondent.

(1) Defendant's only duty as to foul balls was to provide protected seats for those of its patrons who desired them. This duty was fully discharged by screening a reasonably adequate number of seats and it is not claimed that defendant failed to do so. Crane v. Kansas City Baseball & Exhibition Co., 168 Mo.App. 301, 153 S.W. 1076; Edling v. Kansas City Baseball & Exhibition Co., 181 Mo.App. 327, 168 S.W. 908; Grimes v. American League Baseball Co., 78 S.W.2d 520; Olds v. St. Louis Natl. Baseball Club, 232 Mo.App. 897, 104 S.W.2d 746, 119 S.W.2d 1000; Brummerhoff v. St. Louis Natl. Baseball Club, 149 S.W.2d 382; Blackhall v. Capital District Baseball Assn., 278 N.Y.S. 649, 154 Misc. 640; Blackhall v. Albany Baseball & Amusement Co., 285 N.Y.S. 695, 157 Misc. 801; Blakeley v. White Star Line, 154 Mich. 635, 118 N.Y. 482; Brisson v. Minn. Baseball & Athletic Assn., 185 Minn. 507, 240 N.W. 903; Cates v. Cincinnati Exhibition Co., 215 N.C. 64, 1 S.E.2d 131; Cincinnati Baseball Club v. Eno, 112 Ohio St. 174, 147 N.E. 86; Curtis v. Portland Baseball Club, 130 Ore. 93, 279 P. 277; Hammel v. Madison Square Garden Corp., 279 N.Y.S. 814; Ingersoll v. Onondaga Hockey Club, 281 N.Y.S. 505, 245 A.D. 137; Ivory v. Cincinnati Baseball Club Co., 62 Ohio App. 514, 24 N.E.2d 837; Kavafian v. Seattle Baseball Club Assn., 105 Wash. 215, 181 P. 679; Keys v. Alamo City Baseball Club, 150 S.W.2d 368; Lorino v. New Orleans Baseball & Amusement Co., Inc., 16 La. App. 95, 133 So. 408; Paxton v. Buffalo International Baseball Club, Inc., 9 N.Y.S. (2d) 42; Quinn v. Recreation Parks Assn., 3 Cal. (2d) 725, 46 P.2d 144; Ratcliff v. San Diego Baseball Club, 81 P.2d 65; Wells v. Minn. Baseball & Athletic Assn., 122 Minn. 327, 142 N.W. 706; Williams v. Houston Baseball Assn., 154 S.W.2d 874; Zeitz v. Cooperstown Baseball Centennial, Inc., 29 N.Y.S. (2d) 56. (2) Defendant owed plaintiff no duty to volunteer information as to which seats were screened; he was in no way misled by defendant; and no inference respecting the presence or absence of a screen in front of the seat supplied plaintiff can be drawn from his request for the best reserved seat and the furnishing of the seat which he received. Grimes v. American League Baseball Co., 78 S.W.2d 520; Curtis v. Portland Baseball Club, 130 Ore. 93, 279 P. 277; Keys v. Alamo City Baseball Club, 150 S.W.2d 368; Quinn v. Recreation Park Assn., 3 Cal. (2d) 725, 46 P.2d 144; Wells v. Minn. Baseball & Athletic Assn., 122 Minn. 327, 142 N.W. 706, 707; Williams v. Washington Baseball Assn., 154 S.W.2d 874. (3) It is apparent from his petition that plaintiff actually did assume the risk of being struck by a foul ball. Crane v. Kansas City Baseball & Exhibition Co., 168 Mo.App. 301; Grimes v. American League Baseball Co., 78 S.W.2d 520.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION
BARRETT

The trial court sustained a demurrer to Eugene L. Hudson's petition for damages for injuries received while he was a spectator at a baseball game. The question for decision is whether his petition contains averments of specially pleaded circumstances constituting negligence on the part of the Kansas City Baseball Club.

The plaintiff's petition describes the typical baseball diamond and grandstand, with the grandstand seats immediately back of home plate protected by a wire netting or screen. The petition alleges that the defendant knew "That in the game of baseball there exists the constant hazard of foul balls driven with great force into the grandstands provided for spectators unless the said stands are protected by such wire notting as aforesaid," consequently it was the defendant's duty to provide reasonable safeguards for the invited public.

On July 28, 1940, the plaintiff was a fee paying invitee at a doubleheader game "with the intention of occupying a seat protected by the wire netting as aforesaid." He says he is subject to the ordinary impairments of eyesight of a man sixty-four years old. He asked for "the best reserved seat," paid the one dollar admission fee, was given a ticket and escorted to a seat in the grandstand by an usher, "being all the while under the impression that he was seated behind the wire netting aforesaid." That while he "was thus seated and under the impression that because he had purchased a reserved seat ticket he was protected by a wire netting between himself and the home plate" and was watching the game he was struck and seriously injured by a foul ball.

The five specifications of negligence alleged as the proximate cause of the plaintiff's injury and as entitling him to recover are that the defendant carelessly and negligently:

(1) "failed to protect with wire netting as aforesaid, that portion of the grandstand lying directly in the line between the seat occupied by plaintiff and the batter's box at home plate, from which the ball in question was hit;"

(2) "offered for sale seats in said grandstand without definite classification and notice thereof to the public with reference to whether some were or were not protected by such wire netting;"

(3) "offered for sale as reserved seats not only seats protected by wire netting, but also seats that were unprotected by such wire netting, thereby creating in the minds of many members of the public and in the mind of this plaintiff the false impression that 'a reserved seat' was one protected by a wire netting;"

(4) "gave plaintiff reason to believe that in purchasing a seat of the class of that which plaintiff purchased he was securing a seat protected by said wire netting . . . and gave him no notice to the contrary;"

(5) "through its agent, servant and employee, the aforesaid usher, seated the plaintiff, a person of advanced years, in a seat designated as a reserved seat, but which was unprotected by any such wire netting . . . and in so doing failed to give him any notice of the absence of the protection of such wire netting between home plate and the seat in which he was so seated by said usher."

The plaintiff's contention is that these allegations demonstrate negligent conduct on the part of the defendant because they show a breach of legal duty by the proprietor of a place of public amusement to an invitee in that it disregarded its obligation of furnishing a fee paying spectator reasonable protection from injury while attending a baseball game. Especially so when the proprietor by the act of selling the ticket at the entrance designates the seat the spectator is to occupy. The plaintiff's theory is that the defendant's premises were not reasonably safe and that it did not furnish...

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