McWilliams v. Parham, 519

• Decision Date: 20 January 1967
• Docket Number: No. 519,519
• Citation: 269 N.C. 162,152 S.E.2d 117
• Court: North Carolina Supreme Court
• Parties: Henry McWILLIAMS v. George H. PARHAM, Jr.

Page 117

152 S.E.2d 117

269 N.C. 162

Henry McWILLIAMS v. George H. PARHAM, Jr.

No. 519.

Supreme Court of North Carolina.

Jan. 20, 1967.

Joyner & Howison, Raleigh, for plaintiff appellant.

Maupin, Taylor & Ellis, Raleigh, for defendant appellee.

LAKE, Justice.

The motion to strike is directed to the entire second further answer and to the entire third further answer for the reason, in each instance, that the allegations therein contained do not constitute a defense to the cause of action alleged in the complaint. The motion is, therefore, equivalent to a demurrer to each such further answer. Cecil v. High Point, Thomasville & Denton R.R., 266 N.C. 728, 147 S.E.2d 223; Galloway v. Lawrence, 263 N.C. 433, 139 S.E.2d 761; Williams v. Hunter, 257 N.C. 754, 127 S.E.2d 546.

In each instance the motion should have been allowed.

The defense which the second further answer purports to allege is the assumption by the plaintiff of the risk that he would be so injured. It is well established in this jurisdiction that assumption of risk is not available as a defense to one not in a contractual relationship to the plaintiff. Clark v. Pilot Freight Carriers, 247 N.C. 705, 102 S.E.2d 252; Gilreath v. Silverman, 245 N.C. 51, 95 S.E.2d 107; Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398; Broughton v. Oil Co., 201 N.C. 282, 159 S.E. 321. The distinction between the defense of contributory negligence, which the defendant has alleged in his first further answer and defense, and which is in no way affected by our decision upon the matters now before us, and the defense of assumption of the risk is clearly drawn in Cobia v. Atlantic Coast Line R.R., 188 N.C. 487, 125 S.E. 18, and in Horton v. Seaboard Air Line R.R., 175 N.C. 472, 95 S.E. 883.

The defendant, in his brief, recognizing that 'the defense of assumption of risk is one growing out of the contract of employment,' relies on his allegation in the second further answer that 'any injury sustained by the plaintiff while he was in the employment of the Carolina Country Club and the patrons of its golf course as a caddy' was sustained in an employment, the risks incident to which were obvious and well known to the plaintiff. This is a far cry from an allegation that the plaintiff was employed by the defendant or that there was any contractual relationship between them. On the contrary, the defendant's own allegations both in the second and in the third further answer show that the plaintiff's employment was 'of' the Club, 'by' the Club and 'for' the Club. The Club is a corporation. It appears fom the answer, itself, that the plaintiff was not caddying for the defendant but for players in a group entirely separate and apart from the defendant and his companions. Nowhere in the pleadings is the relationship of the defendant to the Carolina Country Club set forth. The only reference to this relationship is the admission, in the answer in chief, of the allegation in the complaint that when the event in question occurred, 'the defendant was enjoying membership privileges of the Carolina Country Club and was playing golf with another person on said course.' Thus, it does not appear that the defendant was even a member of the Club, but if he was a member of the corporation, which employed the plaintiff, this would not make him a party to that contractual relationship. Consequently, it appears upon the face of the answer, itself, that a prerequisite to the defense of assumption of the risk is lacking.

Furthermore, when the necessary relationship between the parties is shown, the doctrine of assumption of risk extends only to those risks which are normally incident to the occupation in which the plaintiff engages. Extraordinary risks, including additional hazards caused by the negligence of the employer, or of others upon the employer's premises, are not assumed by the employee. See Cobia v. Atlantic Coast Line R.R., supra.

It is a well recognized and established custom among golfers to give warning by crying 'Fore,' or some similar exclamation, prior to attempting to drive a golf ball into the vicinity of another person on the course who does not appear to be aware that such a drive is about to be made, whether such other person be another player, a caddy or a spectator. A driven golf ball travels at high speed and can inflict serious bodily injury, as in this instance. To drive a golf ball toward such a person, who is within probable range of the intended flight of the ball, without giving such warning, is negligence. Boynton v. Ryan, 3 Cir., 257 F.2d 70; Miller v. Rollings, Fla., 56 So.2d 137; Stober v. Embry, 243 Ky. 117, 47 S.E.2d 921; Page v. Unterreiner, Mo.App., 106 S.W.2d 528; Toohey v. Webster, 97 N.J.L. 545, 117 A. 838, 23 A.L.R. 440; Povanda v. Powers, 152 Misc. 75, 272 N.Y.S. 619. The plaintiff, whom the answer alleges to have been well acquainted with the customs and rules of the game, was entitled to assume that players in the party following that for whose members he was caddying, would observe such custom. He cannot, therefore, be held to have assumed the risk of injury through the negligent failure of such a player to give warning of his intent to drive a ball into the plaintiff's vicinity, even if the other prerequisites to the application of the doctrine of assumption of risk be present. Toohey v. Webster, supra; Povanda v. Powers, supra; Getz v. Freed, 377 Pa. 480, 105 A.2d 102.

It is well known to caddies, and to those who frequent golf courses, that skillful players occasionally, and players of average skill frequently, strike the ball with care and then find, to their dismany, that it 'hooks' to the left to 'slices' to the right, or otherwise departs substantially from the intended course of flight. As between a caddy and his employer, the caddy may, therefore, be held to assume the risk of injury from such a drive, but he cannot be held to assume, even as to his employer, the risk of injury due to the negligent failure of a player to observe the established rules and customs of the game. Biskup v. Hoffman, 220 Mo.App. 542, 287 S.W. 865; Toohey v. Webster, supra; Povanda v. Powers, supra; Getz v. Freed, supra.

In the...