Mann v. Nutrilite, Inc.
| Decision Date | 03 November 1955 |
| Citation | 136 Cal.App.2d 729,289 P.2d 282 |
| Parties | Gene MANN, Appellant, v. NUTRILITE, Inc., a corporation, et al., Respondents. Civ. 5052. |
| Court | California Court of Appeals Court of Appeals |
Robertson, Harney & Behr, Los Angeles, for appellant.
Head, Jacobs, Corfman & Jacobs, Santa Ana, for respondents.
This is an action for damages for injuries sustained by the plaintiff on July 24, 1952, while she was on a baseball field acting as chaperone for a girls' soft ball team, known as 'The Pirates.' During a 'warm-up' period, preceding a game, a member of this team threw a ball which struck the plaintiff on the head. This action was based on the theory of respondeat superior, it being claimed that the four defendants sponsored and had the right to control this team. A motion for a nonsuit was granted, and the plaintiff has appealed from the judgment which followed.
The complaint alleged that each of the four defendants, Nutrilite Products, Inc., Nutrilite Foundation, B. P. Kids, Inc., and Boys' Club of Buena Park, is a corporation with its principal place of business in Orange County; that on July 24, 1952, these corporations owned and operated a baseball team in the vicinity of Buena Park known as 'The Pirates', one of whose players was Bessie Baker; that on said day Bessie Baker was the agent and employee of these four corporations and was acting within the scope of said agency and employment; that on said day the plaintiff was present at a certain school playground, at which place this team was to engage in a baseball game; that on said day Bessie Baker negligently and unlawfully threw a baseball; that these defendants negligently and unlawfully trained, managed and controlled the activities of Bessie Baker; and that as a direct and proximate result of such negligence said baseball hit and struck the plaintiff's head, causing the injuries complained of.
B. P. Kids, Inc. was a nonprofit corporation which promoted youth activities in Buena Park. Among other things it sponsored some ten or twelve soft ball teams for children from 10 to 18 years of age. These teams were managed by Raymond Thomas, who was Director of Recreation for B. P. Kids, Inc. and whose salary was paid from its general fund. B. P. Kids, Inc. is now defunct and has no assets, its successor being the Boys' Club of Buena Park. Nutrilite Products, Inc. is a manufacturing corporation which had made charitable contributions to the Nutrilite Foundation, a nonprofit charitable corporation. Nutrilite Foundation also had received donations from other individual donors. B. P. Kids, Inc. received contributions from Nutrilite Foundation and also from other sources, including the Community Chest, local merchants, Knotts Berry Farm, a newspaper, and various individuals. B. P. Kids, Inc. also carried on various activities to raise money for its general fund, including dancing and other forms of entertainment. Nutrilite Foundation had at times been the largest single contributor to the B. P. Kids, Inc.
One of the teams sponsored by B. P. Kids, Inc. was 'The Pirates', a soft ball team for girls under the age of 18 years. Blouses worn by the players on this team had the word 'Nutrilite' sewed on the back. These blouses were ordered by Mr. Thomas under instructions from the board of directors of B. P. Kids, Inc., which consisted of fifteen members. This action was taken by that board in appreciation of the amounts contributed by Nutrilite Foundation to youth activities. The money to pay for these uniforms came from the general fund of B. P. Kids, Inc., and the board of directors of B. P. Kids, Inc. had not requested or received any authorization from Nutrilite Foundation or Nutrilite Products, Inc. to put the word 'Nutrilite' on these blouses.
The plaintiff was secretary and treasurer of the Orange Empire Girls Soft Ball League, in which 'The Pirates' were playing. She testified that Mr. Thomas acted as coach for the team and that she acted as chaperone, going with the girls to the games and seeing that they did not get into trouble. On this occasion, she went into the outfield with a group of seven or eight girls to whom balls were being batted for the purpose of 'warming up'. Her job as chaperone was on a voluntary basis. It was not usually her custom to assist the girls in warming up, and on this occasion she was not requested to do so. The balls were being batted from a position along the first base line to the girls who were some 100 or 110 feet distant in the outfield. A ball was hit and the plaintiff saw it caught by Miss Baker. The plaintiff testified that after seeing Miss Baker catch the ball she looked around to see if there was another ball coming from some other direction. About that time Miss Baker threw the ball back toward the batter, and the ball struck the plaintiff. Miss Baker testified that it was the custom when she got a ball that was knocked to the outfield in these warm-ups to throw it back toward the batter; that this is what she did on this occasion that besides Miss Mann there were seven or eight of 'us girls' between her and the batter; that when she threw she intended the ball to go over the heads of these girls, intending it to land between where the girls were and the batter; that the ball, however, went up in the air at an angle and then came down; and that she knew that the plaintiff was in the direction in which she was throwing, but did not know that the plaintiff would 'happen to be in the particular place she was'. The plaintiff testified that she had played soft ball since she was eight years old and was familiar with the game; that it was customary for a team to warm up before a game; that she knew that balls would be batted around and thrown around during a warm-up; that she did not know that a ball would be thrown so close as to endanger her, because she had been taught that a warning such as 'ball up' should be yelled before a player threw a ball to the batter; that she had heard the girls on this team give such a warning, 'not every one of them, but the majority of them'; and that Miss Baker did not give such a warning. She also testified that she knew that when balls were thus being batted out the balls would be thrown back in; that she was standing about in a line between Miss Baker and the batter when this ball was thrown; that she knew that Miss Baker would throw the ball back; and that she turned her head away after she saw her catch the ball. Miss Baker testified that she had been a member of this team for two months and had never been told to give such a warning before throwing a ball. Mr. Thomas testified that 'The Pirates' was the only girls' team that had 'Nutrilite' on their uniforms; that he had told the girls that when another person was in the way the ball should be thrown on a direct line, about ten feet high and with as little arc as possible; that the girls usually yelled 'heads up' or 'watch out' when they saw that anyone was in the way; and that he could not recall having instructed them to do so.
The appellant contends that the evidence does not show, as a matter of law, that she assumed the risk; and that there was sufficient evidence of the existence of a relationship of sponsor or employer between the...
To continue reading
Request your trial
-
Krol v. Sampson
...was exposed.' [Citation.]" (Brown v. San Francisco Ball Club, supra, 99 Cal.App.2d at p. 490, 222 P.2d 19.) In Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d 729, 289 P.2d 282, the plaintiff was a chaperon for a girl's softball team. During a pregame warm-up, the plaintiff went onto the fiel......
-
Knight v. Jewett
...a player generally cannot recover if he or she is hit and injured by a carelessly thrown ball (see, e.g., Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d 729, 734-735, 289 P.2d 282), and that in a game of basketball, recovery is not permitted for an injury caused by a carelessly extended elbo......
-
Tavernier v. Maes
...flying balls exists' (id., p. 736, 81 P.2d, p. 626) and also the area where there is a risk of flying bats. In Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d 729, 289 P.2d 282, the plaintiff appealed from a judgment of nonsuit in which she sought to recover damages from the sponsors of the t......
-
Lackner v. North
...thrown baseball (Ratcliff v. San Diego Baseball Club, supra, 27 Cal.App.2d at p. 736, 81 P.2d 625; Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d 729, 734-735, 289 P.2d 282), a carelessly extended elbow during a basketball game (Knight v. Jewett, supra, 3 Cal.4th at p. 316, 11 Cal.Rptr.2d 2,......