Stehn v. Bernarr MacFadden Foundations, Inc., 20201.

• Citation: 434 F.2d 811
• Decision Date: 02 December 1970
• Docket Number: No. 20201.,20201.
• Parties: Lowry M. STEHN, a Minor, Who Sues by His Mother and Next Friend, Mrs. Juanita Ponder, and Mrs. Juanita Ponder, Plaintiffs-Appellees, v. BERNARR MacFADDEN FOUNDATIONS, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

434 F.2d 811 (1970)

Lowry M. STEHN, a Minor, Who Sues by His Mother and Next Friend, Mrs. Juanita Ponder, and Mrs. Juanita Ponder, Plaintiffs-Appellees, v. BERNARR MacFADDEN FOUNDATIONS, INC., Defendant-Appellant.

No. 20201.

United States Court of Appeals, Sixth Circuit.

December 2, 1970.

Charles L. Cornelius, Jr., Nashville, Tenn., (James F. Neal, Cornelius, Collins, Neal, Higgins & White, Nashville, Tenn., on the brief), for appellant.

William J. Harbison, Nashville, Tenn. (Thomas H. Peebles, III, Charles C. Trabue, Jr., Nashville, Tenn., on the brief), for appellees; Trabue, Minick, Sturdivant & Harbison, Nashville, Tenn., of counsel.

Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.

PECK, Circuit Judge.

Plaintiffs-appellees, a minor suing by his mother and next friend and the mother suing on her own behalf, brought this action to recover damages on account of injuries suffered by him. These injuries were suffered when as a student in a private school operated by the defendant-appellant he was participating in a wrestling program. Based on a jury verdict, judgment in his favor was entered by the District Court in the sum of $375,000 and in favor of his mother in the sum of $10,000. Defendant-appellant perfected this appeal from an order overruling its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

At the time of the incident resulting in injury, plaintiff (the parties herein will be referred to as they were in the trial court, and the term "plaintiff" will refer to the minor unless otherwise indicated) was fifteen years of age, having passed his fifteenth birthday approximately one month earlier. He was in the eighth grade at the defendant's school, which he had attended the two preceding years, and was participating in wrestling for the first time. He had met with the wrestling class for about six weeks prior to the occurrence, and had attended sessions four times a week. The instructor, or coach, had himself wrestled as a cadet at this same school and had subsequently wrestled for one season in military service, for the 11th Airborne Division in Europe, but his only previous coaching experience had been for one season seven years earlier, also in Europe. At the time of his injury plaintiff weighed 137 pounds, and was wrestling a boy who weighed 150 pounds.

Either at the precise moment of plaintiff's injury or immediately prior thereto his opponent (Lonnie Gregor) had applied what is referred to continually throughout the testimony, the trial court's instructions to the jury and the briefs in this court as the "agura" or "agura hold." However, no witness, including those who qualified as experts in the field of wrestling, had ever heard the term "agura" before, and counsel advise that it has not been found in any standard works on the sport. Further, while the "agura" is thus generally referred to as a hold, it seems clear from the testimony of the witnesses that it should more accurately be termed a maneuver, in the course of which one's opponent is turned from a face-down position on the mat to a face-up position so that he might be "pinned."

In such school wrestling, in commencing a bout one of the participants assumes what is referred to as the "referee's position," in which he is on his hands and knees, with the other participant standing over him. In this instance, plaintiff assumed the referee's position, and upon the commencement of the bout Gregor executed the "agura" maneuver. Either during it or immediately after its completion, plaintiff suffered the injury complained of, which consisted of a broken neck and a severance of the spinal cord.

While the foregoing statement of the occurrence is supported by essentially uncontroverted portions of the record, other aspects of the incident are in issue. For example, although the "agura" movement apparently is calculated to rotate one's opponent by rolling him over on a head to toe axis, there is evidence to support plaintiff's contention that the change of position from face-down to face-up was here accomplished by a somersault type movement. Further, while plaintiff contends that he suffered injury when in a face-up position, there is some evidence to support defendant's contention that he was face-down when injured. In the face of such conflict, we are required to assume that the jury by its verdict resolved the factual issues favorably to the plaintiff. Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620 (1964); Sneed v. Henderson, 211 Tenn. 572, 366 S.W.2d 758 (1962).

While other issues were presented to the District Court in the post-judgment proceedings, the sole issue on appeal is whether the trial court erred in refusing to grant the defendant's motion for a directed verdict at the conclusion of all the proof on the ground that the evidence was insufficient to support a verdict against defendant. The parties are in essential agreement as to such statement of the issue, but stated with greater specificity we conceive the issue to be whether the operator of a private school is liable for damages resulting from injury to a student proximately caused by its negligence in failing to provide proper instruction and supervision in connection with the activity of wrestling, and in conducting that activity. As summarized by the District Judge in his instructions to the jury, plaintiff contended that defendant, as owner and operator of the Castle Heights Military Academy attended by plaintiff, was negligent in not providing proper wrestling instructions and supervision, in requiring the plaintiff to wrestle two matches on the same afternoon with two boys heavier than himself, in failing to provide one or more assistant coaches, in improperly instructing the participants, including the plaintiff and Gregor, in the "agura" maneuver or hold so that it would be clear to the participants how it should be performed or executed, and without teaching any escape therefrom on the part of the defensive wrestler, in permitting two wrestling matches to be conducted simultaneously so that the coach could not observe them closely, in improperly delegating "the important function of refereeing" the match in which plaintiff and Gregor were engaged to another student in plaintiff's class, and in teaching a hold involving the degree of risk inherent in the "agura" to students of this age group. The defendant's contentions as summarized in the jury instructions categorically denied those of the plaintiff, it being defendant's argument that its instruction, supervision and conduct of the wrestling activity was free from negligence.

To a considerable degree positions urged by the defendant reflect accurate legal propositions. Thus it is recognized that the burden of proving negligence and proximate cause is upon the plaintiff (Pearce v. Canady, 52 Tenn.App. 343, 373 S.W.2d 617 (1963)), that negligence is not to be presumed from the mere happening of an accident (Williams v. Jordan, 208 Tenn. 456, 346 S. W.2d...