Petrich v. New Orleans City Park Imp. Ass'n
| Decision Date | 24 April 1939 |
| Docket Number | 16992 |
| Citation | 188 So. 199 |
| Parties | PETRICH et ux. v. NEW ORLEANS CITY PARK IMPROVEMENT ASS'N et al. |
| Court | Court of Appeal of Louisiana — District of US |
Rehearing Denied May 22, 1939
Writ of Certiorari Denied June 26, 1939
Appeal from Civil District Court, Parish of Orleans, Division " E" ; W.H. Byrnes, Jr., Judge.
Suit by Mr. and Mrs. Ellis J. Petrich against Wilfred Roux, the New Orleans City Park Improvement Association, and another for injuries to wife as result of being struck by a golf ball and for consequent expenses to husband. Judgment by default was rendered against defendant Wilfred Roux. From judgment in favor of other defendants, plaintiffs appeal.
Affirmed.
Person who, when struck by golf ball, was standing in fairway on golf course practicing golf shots and was not going from hole to hole as in a regular game of golf, was " participating in game" of golf within provision of liability policy carried by city park association which operated golf course, which provision excluded from coverage injuries or death resulting from participation in games or contests. LSA-R.S. 22:655.
Paul E. Chasez and Sydney J. Parlongue, both of New Orleans, for appellants.
Rene A. Viosca and Miller, Bloch & Martin, all of New Orleans, for appellees.
This is a suit for damages. Mrs. Ellis J. Petrich, while taking a golf lesson on the course of the New Orleans City Park Improvement Association in the City Park in New Orleans received physical injuries as the result of being struck by a golf ball driven from a nearby tee by another golfer. She and her husband allege that the golf professional, Wilfred Roux from whom, at the time, she was taking a golf lesson, was negligent in placing her in a dangerous position on the fairway of the golf course! bout 15 yards in front of a tee. They charge that the said Roux was " an agent, servant and employee" of the said Association and that at the time he was acting within the scope of his employment, and they also allege that, in operating the said golf course and in employing the said Roux, the said Association acted in a proprietary and not in a governmental capacity and they charge that the said Roux and the said Association are both responsible for the results of the said alleged negligence of Roux.
They also allege that the London & Lancashire Indemnity Company of America had issued to the said Association a policy of liability insurance under which the said company agreed to indemnify and hold harmless the said Association against loss resulting from any such possible liability as is sought to be asserted here, and they aver that, as a result of the provisions of Act 55 1930, the said Indemnity Company is liable directly to them for such loss as they may have sustained.
Mrs Petrich claims $10,000 for pain and suffering and loss of sight and Mr. Petrich seeks judgment for $220 as the expense to which he, as head and master of the community, has been put as a result of the injuries sustained by Mrs. Petrich.
Defendant, Roux, made no appearance, and judgment was rendered against him by default in favor of Mrs. Petrich in the sum of $3,500 and in favor of Mr. Petrich in the sum of $220. He has not appealed.
The defenses presented by the two other defendants are:
(1) That Roux, in giving lessons to Mrs. Petrich, was not the agent or employe of the Association and acted entirely as an independent contractor, for whose actions neither of defendants is liable;
(2) That plaintiff, Mrs. Petrich, was thoroughly familiar with the game of golf, was aware of the danger of being struck by a ball driven by another player, and well knew that she was in a position of danger, should some other player carelessly strike a ball in her direction;
(3) That the proximate cause of Mrs. Petrich's injury was not the fact that Roux placed her in a position of danger, but was the intervening negligence of the other player, who, without warning, drove his golf ball directly at her in violation of the usual custom of the game and contrary to all of the dictates of caution, prudence and common sense;
(4) That, in selecting Roux as the golf professional from whom players might secure lessons, the Association had fully complied with its duty by exercising due care to ascertain that he was a careful and experienced professional and understood the possible danger to players who might employ him;
(5) That, in its conduct of the golf course, the said Association acted solely as the agent of the State of Louisiana and in a governmental capacity, and that, therefore, even had Roux been its employe, instead of an independent contractor, there would have been no liability.
In addition to the above defenses, the insurer presents the contention that in any event, it cannot be held liable because even Act No. 55 of 1930 makes the insurer liable only within the terms, limits and conditions of the policy, and the policy here provides, in a special rider, that the insurer is not liable " *** for injuries or death to any person or persons resulting from the participation in games or contests ***" .
There was judgment in favor of both these defendants and plaintiffs have appealed.
For the moment we shall indulge the rather violent assumption that, in conducting the golf course and in contracting with Roux to serve as professional, the Association acted in a proprietary capacity. If it did not do so, it cannot itself be held liable, but, if it did do so, then in a case in which the facts show negligence it is possible that the insurer may be held liable (Rome v. London & Lancashire Indemnity Company, __ La.App. __, 156 So. 64; Id., La.App., 157 So. 175; Id., 181 La. 630, 160 So. 121; Id., La.App., 169 So. 132), and, since there are other defenses which we think are entirely sound and which will result in a dismissal of the suit as to both defendants, we will, as we have said, temporarily indulge the presumption that the Association acted in a proprietary capacity and discuss these other defenses.
The record shows that Mrs. Petrich, under the instruction of Roux, was standing directly in front of tee No. 11, about 15 yards from it, and that, therefore, she was in the direct line of flight of any ball properly driven from that tee toward the green. The record also shows that, among golf players, there is a universally recognized custom, with which Mrs. Petrich was familiar, to give warning to those who may be near the line of flight of the ball by...
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...case involved another player being injured, it is not comparable to the facts of the instant case. In Petrich v. New Orleans City Park Improvement Ass'n, 188 So. 199 (La.Ct.App.1939), the plaintiff was playing golf when a ball driven from a nearby tee struck and injured her. The court held:......
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