McFatridge v. Harlem Globe Trotters

• Citation: 365 P.2d 918,69 N.M. 271,1961 NMSC 154
• Decision Date: 01 November 1961
• Docket Number: No. 6848,6848
• Parties: , 89 A.L.R.2d 1154 Jewell McFATRIDGE, Plaintiff-Appellee, v. HARLEM GLOBE TROTTERS, Abe Saperstein, Abe Saperstein d/b/a The Harlem Globe Trotters, and Abe Saperstein Sports Enterprises, Defendants-Appellants.
• Court: Supreme Court of New Mexico

Page 918

365 P.2d 918

69 N.M. 271, 89 A.L.R.2d 1154

Jewell McFATRIDGE, Plaintiff-Appellee, v. HARLEM GLOBE TROTTERS, Abe Saperstein, Abe Saperstein d/b/a The Harlem Globe Trotters, and Abe Saperstein Sports Enterprises, Defendants-Appellants.

No. 6848.

Supreme Court of New Mexico.

Nov. 1, 1961.

Smith, Smith & Tharp, Clovis, for appellants.

Emmett C. Hart, Eugene E. Brockman, Tucumcari, for appellee.

MOISE, Justice.

This suit was brought by plaintiff-appellee (hereinafter referred to as plaintiff) against Abe Saperstein, defendant-appellant (hereinafter referred to as defendant) and also named The Harlem Globe Trotters and Abe Saperstein Sport Enterprises as defendants. However, it is conceded that these additional defendants are merely descriptive names for the defendant, Abe Saperstein.

The complaint alleged that on December 3, 1957, the Harlem Globe Trotters basketball team played a basketball game at the high school gymnasium in Tucumcari, New Mexico; that plaintiff purchased a ticket to the game and was a spectator; that while playing in the game one of the members of the Harlem Globe Trotters team 'intentionally or negligently' threw a basketball toward the spectators on the east side of the gymnasium striking plaintiff in the face, causing the injuries complained of; that at the time, the player was acting within the scope of his employment.

Defendant, by his answer, denied the material allegations of the complaint including his negligence, and in addition pleaded affirmatively that plaintiff was contributorily negligent; that she had assumed the risk; that she had the last clear chance to avoid the injury; that the accident was unavoidable and the injuries unforeseeable; also, that there was an absence of an indispensable party.

The case was tried to a jury and resulted in a verdict of $18,700 in favor of plaintiff. From a judgment entered pursuant to the verdict, this appeal is prosecuted.

Defendant argues his case under 15 points, 13 of which complain of the instructions given by the court and of its failure to give those requested by defendant. The remaining two points deal with the court's failure to sustain defendant's motion for a directed verdict at the close of plaintiff's case in chief, and the court's failure to grant defendant's motion for a new trial.

Points 1, 2 and 3 are argued together by defendant, and we will treat them accordingly.

Instruction No. 22, urged as erroneous under Point 3, reads as follows:

'22. You are instructed that the members of the Harlem Globe Trotters team at all material times to this action were agents and employees of the Defendant Abe Saperstein, and that said basketball players were acting in the course of their employment at the time they played the game in Tucumcari on December 3, 1957, and that Abe Saperstein is responsible and liable for the acts of the members of said Harlem Globe Trotters team if you should find from the evidence that any of the members of said basketball team was negligent and such negligence was a proximate cause of the Plaintiff's injuries.'

By his requested instruction No. 6, defendant asked the court to instruct the jury that if the ball was intentionally thrown by one of defendant's employees, the verdict should be for defendant unless such intentional throwing of the ball was within the course of the employee's employment. By requested instruction No. 6-A 'course of employment' is defined and explained.

The court refused both instructions 6 and 6-A, and as already noted instructed the jury as a matter of law that the basketball players were in the course of their employment while participating in the game. It should be pointed out that while plaintiff alleged the act to have been intentionally or negligently done, the court gave no instruction on the pertinent law covering intentional acts, and confined the issues to those incidental to negligence. Defendant had denied negligence and had denied the act was done in the course of employment. Did the court err in not submitting to the jury the question of whether the player was acting in the course of his employment? We think not.

It is not every issue raised by the pleadings that the court is required to cover in its instructions to the jury. When substantial evidence has been submitted in support of a party's position it becomes incumbent on the court to instruct on the party's theory. Lucero v. Torres, 67 N.M. 10, 350 P.2d 1028; Hanks v. Walker, 60 N.M. 166, 288 P.2d 699. It follows without saying that such evidence being absent, the requirement of such an instruction vanishes. Madsen v. Read, 58 N.M. 567, 273 P.2d 845; Davis v. Jones, 60 N.M. 470, 292 P.2d 773.

What evidence is disclosed by the record that the player employee of defendant who suddenly threw the ball either directly at the spectators or toward a goal over their heads, was acting intentionally or outside the scope of his employment?

The facts to which defendant points as raising the issue are briefly these: The basketball was thrown toward plaintiff; the player gave an indication of throwing the ball into the proper goal from far out in the court when he suddenly turned and threw the ball toward the crowd or above it and against a goal which was not being used in the game and was located on the side; this was the only occasion of this type of occurrence; also, although the team is made up of expert ball-handlers and perform tricks with the ball as 'gags' it has no 'gag' in which a player throws the ball into or toward the spectators, and even though there is no instruction specifically against throwing the ball into the spectators, the players know that they are not supposed to do so. The player who threw the ball was not produced as a witness, and there is no explanation of the conduct resulting in the injury except as disclosed by the testimony referred to.

In the case of Childers v. Southern Pac. Co., 20 N.M. 366, 149 P. 307, 308, where suit was brought for damages resulting from an assault by a railroad watchman, we said:

'It has been held, in a great variety of cases, that the master is liable for the wanton or malicious acts of his servant if they were committed while the servant was acting in the execution of his authority and within the course of his employment. Mechem on Agency (2d Ed.) Sec. 1960; Elliot on Railroads, Sec. 1265. Some of the earlier cases, it is true, announced the contrary rule; but this doctrine no longer prevails. The difficult question is to determine what acts may be deemed to be within the course of the servant's employment, within the meaning of the rule. Mechem on Agency, Sec. 1960, states the rule as follows:

"But in general terms it may be said that an act is within the 'course of employment' if (1) it be something fairly and naturally incident to the business, and if (2) it be done, * * * although mistakenly or illadvisedly, with a view to further the master's interests, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business, and did not arise wholly from some external, independent, and personal motive on the part of the servant to do the act upon his own account."

In that case the defendant was held to be responsible since the assault resulted from the employee's activities in keeping people from stealing rides on his employer's train, even though plaintiff was not attempting to steal a ride when assaulted. The rule as announced in the quotation above was followed in the recent case of Miera v. George, 55 N.M. 535, 237 P.2d 102. See, also, White Auto Stores v. Reyes, 10 Cir., 223 F.2d 298, and United States v. Mraz, 10 Cir., 255 F.2d 115; Restatement of the Law of Agency, 2d, Sec. 228.

It would seem clear that the record is devoid of any proof that the player participating in the game and who threw the ball that struck plaintiff was doing anything other than an act 'fairly and naturally incident to the business.' As a matter of fact, he was engaged in the performance of his duties as a basketball player, and although he mistakenly or illadvisedly threw the ball into the audience, he was nevertheless performing defendant's business, and if this was negligence which proximately caused plaintiff's injuries defnedant was liable unless liability was excused under one of the defenses pleaded and proved. There being no evidence upon which the jury could have found that the act arose 'wholly from some external, independent, and personal motive * * * to do the act on his own account,' the court ruled correctly that the jury should not be permitted to speculate upon any such possible reason not supported by proof.

Under points 6 and 7 defendant complains of the giving of instruction No. 19, reading as follows:

'You are instructed that a person who conducts a business or an entertainment for which an admission is paid to see the entertainment impliedly extends an invitation to persons to see said entertainment and is under the duty to exercise ordinary care to conduct the entertainment in a condition reasonably safe to those patronizing the entertainment who are under the law invitees.'

and refusal of his requested instruction No. 7, as follows:

'You are instructed that it is common knowledge that the game of basketball is ordinarily and customarily played in a gymnasium where the playing court is not separated from the seats for spectators, and that during the course of a game the basketball may be thrown or knocked from the playing court into the portion of the building occupied by spectators. You are further instructed that one of the natural risks assumed by plaintiff in attending the basketball game described in the testimony in this case was that she might be struck by the basketball in use in the game, and if you find that the injuries sustained by plaintiff were sustained as a result of the basketball hitting her as a usual matter of course during the conduct of said game, you...