Oliver v. Oakwood Country Club

• Decision Date: 10 December 1951
• Docket Number: No. 42389,No. 1,42389,1
• Citation: 245 S.W.2d 37
• Parties: OLIVER v. OAKWOOD COUNTRY CLUB
• Court: Missouri Supreme Court

Page 37

245 S.W.2d 37

OLIVER v. OAKWOOD COUNTRY CLUB.

No. 42389.

Supreme Court of Missouri, Division No. 1.

Dec. 10, 1951.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 14, 1952.

Moss H. Silverforb, Kansas City, for appellant.

Spurgeon L. Smithson, Kansas City, for respondent.

VAN OSDOL, Commissioner.

This is an action for $15,000 for personal injuries. The action was instituted by William Oliver, plaintiff, an infant thirteen years of age, against defendant Oakwood Country Club (Oakwood Golf and Country Club), a corporation. At the conclusion of plaintiff's evidence the trial court sustained defendant's motion for a directed verdict and instructed the jury to return a verdict in favor of defendant. Plaintiff has appealed from the ensuing judgment.

Plaintiff had alleged,

'That defendant Oakwood Country Club * * * is and was at all times herein stated engaged in the business of owning and operating a golf course for hire to members of said slub, and others, and among other activities employed, and kept upon its said grounds, a number of young boys to act as caddies, and for a consideration furnished them to its members and others, and invited, solicited, caused and permitted a large number of boys to congregate and gather at places designated by it * * * there to wait to be called by an agent and servant of defendant, known as a caddy master, without exercising ordinary care to supervise and protect said boys from injury by the acts and conduct of thoughtless and boisterous boys which it permitted to congregate at said place.

'That * * * plaintiff was employed by defendant as a caddy and directed to remain at a certain place upon the grounds of defendant until called by its caddy master; that at said time there was a number of other boys congregated at said place for said purpose; that while in said position, defendant * * * carelessly and negligently allowed and permitted another boy named Solomon Thorne Soloman (Solomon Thorne Flannigan) in its employ and so congregated, to have in his possession, an air pump gun shooting shot and other hard missiles, and to shoot same promiscuously in various directions in close proximity to plaintiff and others so congregated, and one of the shots struck plaintiff in the eye completely destroying the sight thereof; that defendant * * * knew or by the exercise of ordinary care could have known, that said boy had said gun upon its premises and was shooting same promiscuously * * * and was likely to injure plaintiff, in time thereafter, and before plaintiff was injured, to have prevented plaintiff from being injured, and negligently failed to do so; that defendant, its agents and servants were further negligent in permitting said boy to have said gun in his possession while upon said premises; that defendant, its agents and servants, were further negligent in failing to provide plaintiff a reasonably safe place to wait for a call from its caddy master, and in failing to have same supervised so as to keep it safe. * * *'

The plaintiff failed to prove facts as alleged in his petition. The plaintiff's evidence shows he had not arrived at the place designated for caddies to await a call for service, but there was evidence tending to show that plaintiff and four other boys had come from their homes to defendant's country club premises intending to present themselves for service as caddies; and that plaintiff was injured by one of the boys at a place in or near a wooded area some distance, fifty to one hundred fifty yards, from the caddie house belonging to defendant. The facts developed by plaintiff's evidence will be more particularly stated infra.

It is contended by plaintiff-appellant that the trial court erred in directing a verdict for defendant; that the petition should be considered as amended to conform to the proof; and that plaintiff's evidence shows plaintiff was an invitee upon defendant's property and defendant had the consequent duty and failed in its duty to exercise ordinary care to keep its premises reasonably safe for plaintiff.

Defendant-respondent contends there was a total failure of proof of the claim as alleged in plaintiff's petition. Defendant-respondent urges there could be no recovery on the theory of an employer-employee relationship between defendant and the boy who shot plaintiff; the boy was not acting within the scope of his employment at the time plaintiff was shot, nor was the boy engaged in the furtherance of defendant's business; the petition should not be considered as amended to embrace another claim or cause of action founded upon duties incident to a proprietor-invitee relationship; and, moreover, defendant-respondent says, plaintiff's evidence was insufficient to make out a case on the theory that plaintiff was an invitee upon defendant's premises.

There was evidence introduced by plaintiff tending to show that defendant operates a golf course on land near Dodson in Jackson County. Young boys are employed as caddies by the golfers playing over the course. Defendant operates a 'caddy bus' which moves over streets in Kansas City and Jackson County to gather and transport the boys to its country club property upon which is a caddie house where the boys are congregated to await the call for service by the caddie master.

Plaintiff had caddied ten or eleven times on defendant's course. 'When you first went they would ask you are you coming back, or something. * * * When you go out there, Duke (defendant's caddie master), when you get the bag, asks you if you come back out the next time * * * but when you go back out they begin to remember and they write it down.'

In the morning of June 26, 1948, plaintiff and the four other boys boarded a bus at Twenty-seventh Street and Prospect Avenue in Kansas City and road to Seventy-fifth and Prospect. We infer that they expected to board the caddie bus at the latter point, but missed the connection, so they 'all walked down and caught the Dodson street car.' Sometimes they hitchhiked on down to Dodson. After they had arrived at Dodson they walked on Blue River Road until they came to a point east of defendant's property. West of this point, 'it is along in up there,' are 'some woods like, it is on the caddy grounds. * * * we go up through--there is a path that leads up to the caddy house.' The caddie house is 'about a block or so' from the woods.

One of the boys, Rudolph, had an air gun wrapped in a newspaper. 'He took it out when we almost got to the caddy shack, and he also shot the birds.' Plaintiff first saw the air gun when the boys were going through the woods. They were going up the path leading from Blue River Road to the caddie shack. One or more of the boys saw Duke, the caddie master. 'That is when Rudolph shot the bird and then he (Duke) looked over to see what he (Rudolph) was doing.' Duke was walking from the clubhouse toward the caddie shack. He was facing towards the boys 'for the moment * * * he was looking in my direction.' Plaintiff testified that the boys were 'about one hundred fifty yards or so' away when he first saw Duke, who 'looked down' but 'he didn't call out.' Plaintiff also testified he was 'one hundred fifty yards or one hundred fifty feet; I don't know' from the caddie house when the 'shooting occurred.' One of the boys testified that Duke was about seventy-five or eighty yards from the place where plaintiff was shot.

Solomon Thorne Flannigan, seventeen years old and one of the boys of the party, saw a blackbird and wanted to shoot at it, 'so he asked could he use the gun and he got the gun from him (Rudolph).' Presently--it 'was about two or three minutes after Duke left * * * he (Solomon) asked did I (plaintiff) dare him to shoot me. I said: 'No.' The next I knew he shot it. He said he thought he had the lock on it, that he didn't mean to do it, he thought the safety was on.'

Plaintiff failed in showing that he and the other four boys of the party had reported at the caddie house for service as caddies at the time plaintiff was injured. They had not congregated at the place designated to await the call of the caddie master, as plaintiff had alleged. At the time plaintiff was injured there was no shown employer-employee relationship between defendant and plaintiff which would impose upon defendant (as an employer) a duty to provide plaintiff with a safe place to work or to wait. And there was no shown employer-employee relationship between defendant and the boy Solomon which would require our examination of the evidence with a view of determining if defendant should be held responsible upon the principle of respondeat superior.

We now examine plaintiff-appellant's contention that there was substantial evidence introduced tending to show the relationship of proprietor or occupier of land and invitee obtained between defendant and plaintiff. We must further determine if the defendant had knowledge of the danger and the power and the consequent duty in the circumstances to control the conduct of the boy Solomon, a third person.

It has been said, 'A bare licensee (barring wantonness, or some form of intentional wrong or active negligence by the owner or occupier) takes the premises as he finds them. His fix may be likened unto that of one who, buying lands, buys stones; or, buying beef, buys bones; or, borrowing a coat, takes it with holes in and buttons off--that is, in the use of...