Lucas v. Hesperia Golf and Country Club

• Decision Date: 19 October 1967
• Citation: 63 Cal.Rptr. 189,255 Cal.App.2d 241
• Court: California Court of Appeals Court of Appeals
• Parties: Roy P. LUCAS and Virginia C. Lucas, Plaintiffs and Appellants, v. HESPERIA GOLF & COUNTRY CLUB et al., Defendants and Respondents. Civ. 8302.

Page 189

63 Cal.Rptr. 189

255 Cal.App.2d 241

Roy P. LUCAS and Virginia C. Lucas, Plaintiffs and Appellants, v. HESPERIA GOLF & COUNTRY CLUB et al., Defendants and Respondents.

Civ. 8302.

Court of Appeal, Fourth District, Division 2, California.

Oct. 19, 1967.

Rehearing Denied Nov. 14, 1967.

[255 Cal.App.2d 244] Malcolm Levinthal, Los Angeles, and Hertzberg & Childs, Beverly Hills, for plaintiffs and appellants.

Swing, Swing & Fisher by Everett H. Swing, San Bernardino, for defendants and respondents.

OPINION

TAMURA, Associate Justice.

This is an action for wrongful death of a 14 year old boy who died by drowning in a swimming pool maintained by defendant. The jury returned a verdict in favor of plaintiffs, but the court granted defendant's motion for a judgment notwithstanding the verdict and alternatively ordered a new trial on the ground of the insufficiency of the evidence to support the verdict. ¹ Plaintiffs appeal from the judgment and order granting new trial.

In passing upon the propriety of an order granting a judgment for defendant notwithstanding the verdict, we must apply the familiar rule that the power of the trial court to grant such a motion is subject to the same limitation applicable to the granting of a nonsuit; namely, it may be granted only when it is determined that, disregarding conflicting evidence, and giving to plaintiffs' evidence all the value to which it is legally entitled, including every reasonable inference which may be drawn from that evidence, there is no evidence of sufficient substantiality to support a verdict for plaintiffs. (Reuther v. Viall, 62 Cal.2d 470, 474--475, 42 Cal.Rptr. 456, 398 P.2d 792; Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 159, 41 Cal.Rptr. 577, 397 P.2d 161; Hergenrether v. East, 61 Cal.2d 440, 442, 39 Cal.Rptr. 4, 393 P.2d 164; McFarland v. Voorheis-Trindle Co., 52 Cal.2d 698, 703, 343 P.2d 923; Reynolds v. Willson, 51 Cal.2d 94, 99, 331 P.2d 48.)

Viewing the evidence in the light most favorable to the plaintiffs, it may be summarized as follows:

In 1957 contemporaneously with the acquisition of two unimproved lots in Hesperia, plaintiff Roy P. Lucas, the victim's father, purchased a membership in defendant, Hesperia Golf & Country Club for $120.00 and received a 'Certificate of Founder's Membership' which entitled him and the members of his immediate family to use the recreational facilities of the club. The membership carried no proprietary interest in the club or its assets, but it was transferable by sale or inheritance subject to the approval of the board of directors. The membership was subject to the payment of 'privilege fees' as set by the board of directors. Plaintiffs had used the swimming pool only once prior to the time of the incident in question.

On August 13, 1961, plaintiffs, together with their three sons, arrived at the club at about 11:00 or 11:30 a.m., entered through the front door of the club house and proceeded to the swimming pool. No one asked whether they were members or questioned their right to use the pool. The two older boys, Roy, aged 14, and Ronald, aged 12, went to the dressing room, put on their swimming trunks, and entered the swimming pool.

There were no other persons in or about the pool except one Butler who was attired in swimming trunks. Butler, who was 18 at the time, was employed by defendant as a 'pool maintenance man' whose duties included supervision of the safety of those using the pool. He did not possess a Red Cross or YMCA lifeguard certificate or equivalent qualifications.

Plaintiffs remained at the poolside for about 10 or 15 minutes and then left to look at some property in the area while the two boys continued swimming.

The last time Ronald saw Roy in a conscious state was when the latter walked onto the diving board. At that moment Ronald looked away toward the golf course and did not turn towards the pool for approximately 20--45 seconds. He then went onto the diving board, jumped off, swam to the ladder and looked about but did not see his brother. Upon re-entering the water, he saw a figure in a squatting position at the shallow end of the pool which he realized was his brother. He picked Roy up from the water, looked around and called for help. No one responded so he kept 'yelling and yelling' until a lady seated in a lounge chair heard him and came over. By this time Butler responded and assisted in removing Roy from the pool.

Butler placed Roy face down at the side of the pool and proceeded to administer artificial respiration by getting astride the victim's back and manually pressing his ribs and alternately raising his stomach.

About 45 minutes to an hour elapsed before an ambulance and a fire truck arrived. Meanwhile Butler, a golf pro from the adjoining golf shop and two deputy sheriffs took turns administering artificial respiration in the manner heretofore described. When the fire trucks arrived, a mechanical resuscitator was employed, but all efforts to revive the boy failed. A doctor arrived about 20 minutes after the arrival of the ambulance and fire truck. He examined Roy and pronounced him dead. The evidence was undisputed that death was caused by drowning. The autopsy failed to reveal any other cause of death. It was stipulated that the boy had been in excellent health and physical condition.

The evidence indicated that drowning occurred about 12:00 o'clock noon. A wife of a deputy sheriff who worked as desk clerk at the nearby inn testified that within two or three minutes after the switchboard received word of the drowning, she called her husband who was stationed in Hesperia. He received the call at 12:20 p.m. The call for emergency aid thus apparently reached the desk at the inn about 12:17 p.m.

Plaintiffs introduced medical testimony that in drowning cases the sooner proper resuscitation treatment is administered, the greater the chances of revival.

Instructions for mouth-to-mouth resuscitation were posted on the premises near the pool. That method, however, was apparently never employed in the attempted revival of the victim.

It was stipulated that on August 16, three days after the drowning, there was a sign posted on the premises stating, 'Warning. No life guard on duty. Children Should Not Use Pool Without An Adult In Attendance.' Plaintiffs testified that they did not see such a sign posted on August 13. A county health officer who made periodic inspections of the pool testified that he saw the sign on August 16, but that it was not posted on a prior inspection which he had made several months earlier.

The health officer also testified that annual licenses had been issued to defendant by the State Department of Public Health for the operation of the pool and that he had on prior inspections discussed with defendant's representatives the state rules and regulations relating to the maintenance and operation of the pool.

The defense attempted to show that plaintiff's membership in the club had either been terminated or had expired and that deceased was thus a trespasser or at most a licensee and not an invitee. Defendant introduced evidence that the board of directors had established a 'privilege fee' of $2.00 per month, that plaintiffs were billed for the dues and that no payment was ever made. Plaintiffs testified that they had no knowledge that dues had been established and denied having ever received notices to pay dues. Defendant also introduced evidence that each charter member was issued a membership card which recited on its face that it was valid only until the club house was completed. Defendant contended that since the club house had been completed prior to the incident in question, plaintiff's membership had expired.

We have determined that the evidence was of sufficient substantiality to justify the jury in finding that all of the essential elements of liability had been established, namely, (1) that the deceased was an invitee; (2) that defendant was negligent in failing to comply with statutory and administrative rules and regulations pertaining to the operation of the swimming pool; and (3) that such negligence was the proximate cause of the victim's death.

The evidence was sufficient to support a finding that the deceased was an invitee by virtue of his father's membership which entitled members of the immediate family and their guests to use the recreational facilities of the club.

Defendant contends that plaintiff's membership had terminated under the provision of the by-laws that failure to remit dues within 30 days after mailing of notices to pay 'ipso facto' terminates membership, subject only to reinstatement on approval of the board of directors. Admittedly plaintiff never paid dues. Defendant's bookkeeper testified to the office procedure and practice in billing members and by referring to a card file, deduced the fact that notices to pay dues were mailed to plaintiffs. This testimony was sufficient to give rise to an inference that bills in fact had been mailed to plaintiffs. (Evid. Code, § 1105; Witkin, California Evidence (2nd ed.), pp. 296--297.) Plaintiffs testified, however, that they never received any bills for dues. Plaintiffs' denial raised an inference that notices were never mailed to plaintiffs and, thus, presented a conflict in the evidence to be resolved by the jury. (Jensen v. Traders & Gen. Ins. Co., 141 Cal.App.2d 162, 164--165, 296 P.2d 434; Savarese v. State Farm, etc., Ins. Co., 150 Cal.App.2d 518, 521, 310 P.2d 142.) The jury could have found that plaintiff's membership had not been terminated by nonpayment of dues.

Defendant's contention that plaintiff's membership had expired by virtue of the recital on the temporary membership card stating 'Temporary membership card until club house is completed' is without merit. The recital merely expressed the period during which the card would serve as indicia of membership. It fixed the life of the card, not the life of the membership....