Page v. Unterreiner

• Decision Date: 16 June 1937
• Docket Number: No. 5713.,5713.
• Citation: 106 S.W.2d 528
• Parties: PAGE v. UNTERREINER.
• Court: Missouri Court of Appeals

106 S.W.2d 528

PAGE v. UNTERREINER.

No. 5713.

Springfield Court of Appeals. Missouri.

June 16, 1937.

Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.

"Not to be published in State Reports."

Action by Richard Corliss Page, an infant, by Hattie Page, his next friend, against Adolph Unterreiner. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

McKay & McKay, of Kennett, for appellant.

Hal H. McHaney, of Kennett, for respondent.

ALLEN, Presiding Judge.

This is an action for damages for personal injuries sustained by plaintiff, by reason of being struck by a golf ball, driven by defendant, Unterreiner, on the American Legion golf course, at Kennett, Mo. The verdict was for plaintiff in the sum of $1,250. Motion for a new trial was filed, but overruled, and the cause comes to us on appeal by defendant.

The petition alleged that the plaintiff was fourteen years of age, and was serving as an employee of J. C. Welman, as a golf caddie, and that while he was in a place where he had a right to be, and exercising ordinary care for his own safety, the defendant, knowing the position of plaintiff, as aforesaid, drove and struck a golf ball in a negligent manner, in such a way as to cause it to take an unusual course, but a course defendant well knew said ball was liable to take, and in such a way that it was liable to strike plaintiff; and that defendant did so drive and strike the ball, causing it to hit the plaintiff in the left temple.

The petition alleged that the plaintiff was exercising ordinary care for one of his years and maturity, and that defendant was a man of mature years and judgment, and an experienced golf player and well knew that, even though paintiff was located out of the usual line of direction the golf ball struck by defendant would ordinarily take, if said ball were hit in a negligent manner it was liable to curve from its usual and ordinary course to the left of the driver of said ball and was liable to curve to the left and hit plaintiff; and defendant well knew at the time that he often hit or struck a golf ball in a negligent manner, causing it to curve to the left.

The petition further alleged that the defendant knew that the plaintiff was in a position of peril, and was oblivious to the danger of being struck by the golf ball, and that he should have warned plaintiff of such danger, and should have warned plaintiff of his intention to drive the ball and of the danger to plaintiff of being struck by the ball; and that the defendant carelessly and negligently failed to warn plaintiff as aforesaid, and negligently and carelessly drove said ball toward, against, at, and upon plaintiff, without warning him.

The answer was first a general denial and then pleaded specifically that, if the plaintiff was injured, it was due to the fact that he failed to exercise ordinary care for his own safety, in failing to watch the ball being struck by the defendant, and that he failed to use ordinary care to avoid being injured by the ball struck by defendant.

The answer then pleaded further that the defendant only owed to the plaintiff a duty not to willfully hurt him, for the reason that he was not a caddie or working for or in the employment of the defendant.

The answer further pleaded that the defendant warned the plaintiff of his intention to strike the ball.

The facts disclose that on the 27th day of August, 1934, the plaintiff was serving as a caddie at the American Legion golf course, at Kennett, and had served in this capacity for part of each year for three years prior to the time of his injury. On the day in question a foursome, consisting of Joe Welman, Fred Wright, W. C. McHaney, and the defendant, were playing together on the golf course in question. There were three other caddies besides the plaintiff, and plaintiff was acting as caddie for Joe Welman. The other caddies, on the occasion in question, were Donald Cannon, who was caddying for W. C. McHaney, Mickey Hench for Fred Wright, and John Varley for defendant.

The evidence further disclosed that they were playing the fifth hole and were on No. 5 fairway when the accident took place.

The evidence further disclosed, and the court takes notice of the fact, that it is customary for one playing golf to call "fore" upon addressing himself to the ball, when others are in close proximity or close enough to be injured by the ball, after it is struck. The evidence disclosed that a fairway is a strip of land, where the grass is kept mowed, and that there is a green and tee at opposite ends of the fairway. The fairway on hole No. 5 was 500 yards long and approximately 50 yards wide. The foursome drove off the tee in order. Welman drove the farthest ball, approximately 250 yards. Wright drove the next farthest ball, which lay to the left of Welman's ball, about 5 yards from the rough. Defendant drove about 200 yards from the tee and 15 yards from the rough on the west side of the fairway. After each of the four golfers drove his ball from the tee on to the fairway, their caddies followed the ball of their respective employers, locating them, as they lay on the fairway.

The evidence disclosed that it is the caddie's duty to keep an eye on the ball and go to it directly after the players have made their drives.

The plaintiff went to the ball that Welman had hit, which was located to the left of the flag, about 250 yards down the fairway, and 12 to 15 feet to the left of the ball hit by Unterreiner, and about 40 to 45 yards ahead of where Unterreiner's ball lay.

Plaintiff testified that he found a golf ball near where Welman's ball was lying; that he picked it up and looked at it and threw it to Mickey Hench, who was a few yards from him. That Hench threw it back to him and as he started to pick it up he was hit by the ball driven by defendant.

Plaintiff testified that no warning of his intention to make his second shot was given by defendant, Unterreiner, in the customary manner by calling "fore" and just at the very instant he was hit, Welman, one of the foursome, called "fore."

Plaintiff's attorneys attempted to introduce in evidence a McGregor golf ball, as an exhibit. This was objected to by the defendant, for the reason that it was not the golf ball that hit plaintiff. The court overruled this objection, which is assigned as error by the defendant. Suffice it to say that when one has been hit by a golf ball the particular brand of golf ball is of no consequence, and the court correctly ruled, in overruling the objection.

The evidence was conflicting as to whether or not a warning was given by the defendant before he made his second shot, after his drive from the tee. There was evidence for defendant, that a warning of approximately one minute was given, and that both Unterreiner and Welman called "fore" as Unterreiner was addressing the ball. The plaintiff's evidence was to the effect that no such warning was given.

When defendant made his second shot it was what is termed a "hook," and the evidence disclosed that when a ball is "hooked" it goes to the left, when it is "sliced" it goes to the right. There was evidence as to the size of the head of the golf club which defendant was using, and that it was what is known as a "brassie." A "brassie" is a wood club, used on the fairway, after the tee shot, where the player desires to drive the ball a long distance. The testimony was to the effect that Unterreiner hit this ball on the heel of the club, and this caused it to "hook" or go to the left. That plaintiff was to the left, approximately 10 to 12 feet from what would have been a direct line of flight of the ball, if the ball had traveled from the club directly toward the flag on the green, so that he would be some 12 feet to the left and 40 to 48 yards in front of Unterreiner.

Plaintiff's medical testimony was to the effect that he had sustained a severe injury to his skull, a possible injury and damage to the brain, and that his eyesight was affected; that he suffered from headaches and that there was a possibility that he might, in later years, suffer from Jacksonian epilepsy. The testimony further showed that the wound was sutured or closed and that a hematoma or blood clot formed, and that it was necessary that the wound be opened and the blood clots removed. Plaintiff testified to pain, dizziness, and headaches.

There is no question but that plaintiff sustained a painful injury. The permanency of the injury is largely speculative, but there was sufficient evidence introduced to show some degree of permanency in the injuries.

The testimony of the various witnesses disclosed that it is customary, in driving a ball, for the player to call "fore" as a warning to other players and caddies, who might be in danger of being struck by the ball, and that it was also customary for the player who lay farthest from the flag or who had made the shortest drive from the tee to shoot first. These are all recognized customs in the game of golf, which is an ancient game, known as the royal and ancient game of the Scottish kings. It was first played in continental Europe in the early part of the seventeenth century, and about the middle of the seventeenth century was introduced into Scotland and found favor in the reign of James the Fourth. The game was played with a ball made of feathers and covered with leather, and played with rough, crude clubs, but presumably with the same feeling of frustration that accompanies its play in modern times. It is a game of precision, fraught with uncertainties, and yet, despite its uncertainties, the canny Scotch have indulged in it for centuries and introduced it to the unenlightened races. Its customs are well established and one knowing of the customs and rules appertaining to games has a right to rely upon the fact that the players indulging in such games will observe these rules and customs. The violation of a rule or custom in sports may...