Jesters v. Taylor

• Decision Date: 01 October 1958
• Citation: 105 So.2d 569
• Parties: The JESTERS, a corporation d/b/a Beauclerc Country Club, Appellant, and Norman S. Miller, who joined in the Appeal, Appellants, v. Robert TAYLOR, a Minor, by his father and next friend, Hubert Taylor, andHubert Taylor, individually, Appellees.
• Court: Florida Supreme Court

Page 569

105 So.2d 569

The JESTERS, a corporation d/b/a Beauclerc Country Club, Appellant, and Norman S. Miller, who joined in the Appeal, Appellants, v. Robert TAYLOR, a Minor, by his father and next friend, Hubert Taylor, andHubert Taylor, individually, Appellees.

Supreme Court of Florida.

Oct. 1, 1958.

Rehearing Denied Oct. 30, 1958.

Francis P. Conroy, Harry T. Gray of Marks, Gray, Yates & Conroy, Jacksonville, for The Jesters, d/b/a Beauclerc Country Club, appellant.

Howell & Kirby, Jacksonville, for Norman S. Miller, appellant.

Cleveland & Goodfriend, W. A. Cleveland, Jr., and Sam Goodfriend, Jacksonville, for appellees.

PER CURIAM.

It is the view of Justices Thomas, Hobson, Roberts, Drew, and O'Connell and Chief Justice Terrell that the finding of liability against Norman S. Miller is supported by the evidence and that his appeal is without merit. It is their further holding that the damages are inadequate for the reasons stated in the special opinion of Mr. Justice ROBERTS and that the cause is reversed and remanded for the purpose of a new trial on damages only.

Justices Thomas, Hobson, O'Connell and Chief Justice Terrell hold that the appeal of the Jesters, a corporation d/b/a 'Beauclerc Country Club' is without merit and that the record supports the finding of liability against such corporation; further, that the award is inadequate for the reasons above stated, and the cause is reversed and remanded as to the Jesters, a corporation, etc., for a new trial on the question of damages only.

It is the view of Justices Roberts and Drew that the Jesters, a corporation, is not liable and that the judgment against such corporation should be reversed and the cause dismissed as to it, for the reasons stated in the opinion of Mr. Justice ROBERTS.

The other questions have been considered and found to be without merit.

It is so ordered.

TERRELL, C. J., and THOMAS, HOBSON, ROBERTS, DREW and O'CONNELL, JJ., concur.

ROBERTS, Justice (concurring in part and dissenting in part).

The appellees, Bobby Taylor and his father, were plaintiffs below in a suit to recover their respective damages for injuries sustained by Bobby when he was struck by a golf ball while 'shagging' balls on the practice fairway of the Beauclerc Country Club, a golf club owned and operated by the defendant, the Jesters (referred to hereafter as 'the country club'). The ball was hit from the practice tee by the defendant, Norman Miller. Both defendants have appealed from a verdict and judgment in favor of the plaintiffs. By cross-appeal on an assignment of error directed to the denial of their motion for new trial on the question of damages only, the plaintiffs question the adequacy of the damages assessed by the jury in their favor.

Neither defendant filed a motion for new trial; however, both defendants filed a motion for judgment in accordance with their previous motions for directed verdict made at the close of the plaintiffs' case and again at the close of all the evidence and have assigned as error the denial of their post-verdict motions. The ultimate issue under this assignment of error is whether the evidence and reasonable inferences to be drawn therefrom, when construed in the light most favorable to plaintiffs, were insufficient as a matter of law to prove the plaintiffs' case under the issues made by the pleadings. Hartnett v. Fowler, Fla.1957, 94 So.2d 724.

The unfortunate accident resulting in serious injuries to Bobby arose out of the following series of events: Bobby, an eleven-year-old negro boy, was assigned by the caddy master to retrieve or, in golf parlance, 'shag' balls for a Mrs. Chamison on the practice fairway. Mrs. Chamison was, and was known to the caddy master to be, a 'short-ball' hitter. Mrs. Chamison took up a position near the middle or toward the right-hand side of the practice tee, and Bobby stood on the practice fairway about 100 or 125 yards from the tee. After Mrs. Chamison had been practicing for some time, the defendant Miller came to the left side of the practice tee to hit a few practice shots in advance of a tournament. Miller was the club champion and a 'long-ball' hitter. Since his average drive (about 235 yards) exceeded the length of the practice fairway (about 215 to 220 yards), it was his custom when practicing his drives to shoot diagonally from the left end of the practice tee to the right-hand corner of the practice fairway. He followed his usual custom on the day in question, and there was evidence that Bobby's position on the practice fairway put him directly under or very near the 'line of fire' of Miller's ball in its trajectory from the tee to the corner of the fairway. Miller had hit at least two balls from the practice tee before hitting the one that struck Bobby, both of which were high balls and would have been well over Bobby's head even if he had been directly under them. The drive that hit Bobby was described by one witness as a 'low hook-what we call a caddy killer-a low liner.' It hit Bobby in the eye, just as he was turning around after picking up one of Mrs. Chamison's balls, according to his testimony. Bobby said he didn't hear anyone cry 'Fore,' nor had he seen Mr. Miller on the practice tee. According to Miller's testimony, he hadn't noticed Bobby, either, until after his ball hit him, and therefore didn't give him any warning.

The charge of negligence made against Miller was that he was negligent in failing to exercise ordinary care for Bobby's safety and in failing to give adequate and timely notice of his intention to drive the ball that struck Bobby. On this appeal, the sole contention made on Miller's behalf is that the evidence showed, as a matter of law, that Bobby assumed the risk incident to shagging balls on the practice fairway and of the injury sustained, thus relieving Miller of liability. This contention cannot be sustained.

This court has said that '(v)oluntary exposure is the bedrock upon which the doctrine of assumed risk rests.' Bartholf v. Baker, Fla.1954, 71 So.2d 480, 483. Assumption of risk involves 'a choice made more or less deliberately and negatives liability.' Byers v. Gunn, Fla.1955, 81 So.2d 723, 727. As stated in Prosser on Torts, § 51, p. 376: '(The plaintiff) makes the choice at his own risk, and is taken to consent that the defendant shall be relieved of responsibility. The legal position is then that the defendant is under no duty to protect the plaintiff.'

It is true, as here contended on behalf of Miller, that by voluntarily participating in the sport as a caddy on the practice fairway, Bobby assumed the risk of injury from the ordinary and usual hazards inherent in the activity-assuming, of course, that he was old enough and experienced enough to appreciate the danger, and the evidence indicates that he was. Cf. Payne v. City of Clearwater, 1944, 155 Fla. 9, 19 So.2d 406; Benjamin v. Nernberg, 1931, 102 Pa.Super. 471, 157 A. 10; Benoit v. Marvin, 1958, 120 Vt. 201, 138 A.2d 312; Campion v. Chicago Landscape Co., 1938, 295 Ill.App. 225, 14 N.E.2d 879; Klinsky v. Hanson Van Winkle Munning Co., 1955, 3 N.J.Super. 439, 119 A.2d 166; cases collected in the annotation in 138 A.L.R. at pages 554 et seq. But the negligence of the defendant is not, ordinarily considered to be one of the 'ordinary and usual hazards' the risk of which is assumed by the plaintiff, see Toohey v. Webster, 1922, 97 N.J.L. 545, 117 A. 838; Povanda v. Powers, 1934, 152 Misc. 75, 272 N.Y.S. 619; Biskup v. Hoffman, 1926, 220 Mo.App. 542, 287 S.W. 865, although once he is fully informed of such negligence, then the risks arising from such negligence may be assumed. Prosser on Torts, § 51, p. 385. (But see the Restatement of Torts, § 466, p. 1230, classifying this type of assumption of risk as a form of contributory negligence.)

In the instant case, according to testimony which the jury had the right to believe, Bobby did not know that the defendant Miller was on the practice tee, attempting to loft balls over his head to the far corner of the practice fairway, until after he was struck by the ball. We think there can be no doubt that the jury had the right to find that the defendant Miller was negligent in failing to use ordinary care to observe whether there were any caddies in the 'line of fire' on his practice drive who might be endangered thereby and to make sure they were adequately warned of his intention to hit a practice shot in their direction. Cf. Millr v. Rollings, Fla.1952, 56 So.2d 137; Toohey v. Webster, supra, 117 A. 838. As stated in Miller v. Rollings, supra (56 So.2d 138), 'One who is about to strike a golf ball, must, in the exercise of ordinary care, give adequate and timely notice to those who are unaware of his intention to play and who may be endangered by the play.' This is a universally recognized custom and rule required of each golfer, Petrich v. New orleans City Park Improvement Ass'n, La.App.1939, 188 So. 199, and we think it is applicable as well to the practice fairway as to the regular playing fairways.

Obviously, the player on the practice tee is not required to call 'Fore' each time he makes a practice shot when there are other players and their caddies on the practice tee and fairway, if they are aware of his presence on the practice tee, any more than the player on the regular tee must warn the caddies of the other members of his foursome of his intention to drive from the tee, if they knew or should have known of his intention. See Berry v. Howe, 1949, 34 Wash.2d 403, 208 P.2d 1174; Id., 39 Wash.2d 235, 235 P.2d 170; Miller v. Rollings, supra, 56 So.2d 137. And there was some obligation on the part of Bobby to pay attention to what was going on around him. Cf. Miller v. Rollings, supra, 56 So.2d 137. But the failure of the plaintiff to use ordinary care 'is not properly a matter of assumption of risk but of the defense of contributory negligence.' Prosser on Torts, § 51, p. 385.

Since knowledge of the risk is the...