Texaco Country Club v. Wade

• Decision Date: 07 May 1942
• Docket Number: No. 11365.,11365.
• Citation: 163 S.W.2d 219
• Parties: TEXACO COUNTRY CLUB v. WADE et al.
• Court: Texas Court of Appeals

163 S.W.2d 219

TEXACO COUNTRY CLUB v. WADE et al.

No. 11365.

Court of Civil Appeals of Texas. Galveston.

May 7, 1942.

On Filing of Remittitur May 28, 1942.

Rehearing Denied June 18, 1942.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Action by J. B. Wade in his own behalf and as next friend of his minor son, Billy Drew Wade, against the Texaco Country Club, to recover damages allegedly sustained by the minor from coming in contact with the guy wire charged with electricity located on a portion of the defendant's premises. Judgment was entered in favor of Billy Drew Wade in the sum of $20,000 and in favor of J. B. Wade in the sum of $135, and the defendant appeals.

Judgment affirmed as to J. B. Wade, and judgment affirmed as to Billy Drew Wade on condition of remittitur in the sum of $13,000.

Sewell, Taylor, Morris & Connally, of Houston (Walton D. Taylor and Ben G. Sewell, both of Houston, of counsel), for appellant.

Cooper K. Ragan and Allen, Helm & Jacobs, all of Houston (Cooper K. Ragan and Shirley M. Helm, both of Houston, of counsel), for appellees.

MONTEITH, Chief Justice.

This is an appeal in an action brought by J. B. Wade in his own behalf and as next friend of his minor son, Billy Drew Wade, to recover damages alleged to have been sustained by the minor appellee from coming in contact with a guy wire charged with electricity located on a portion of the premises of appellant, Texaco Country Club.

Appellant is a non-profit corporation maintained by the employees of the Texas Company as a golf club. The minor, Billy Drew Wade, ten years of age, went with his older brother on the morning of June 18, 1940, to the club premises to secure employment as a caddy. While walking around the club grounds before any golf players had arrived, the minor appellee placed his hand on a guy wire, which extended from the top of a light pole to the ground, and received an electrical shock. The current in the guy wire was caused by a short circuit in an electric switch attached to the side of the pole.

Appellees alleged numerous specific acts and omissions on the part of appellant and its employees claimed to amount to negligence proximately causing the injuries to the minor appellee.

Appellant alleged various acts and omissions on the part of the minor appellee which it alleged amounted to contributory negligence.

In answer to special issues submitted, the jury found that appellant had been guilty of numerous negligent acts and omissions, including findings that it had failed to have the guy wire in question properly insulated; that the switch box on said light pole was defective, and that appellant had failed to provide proper inspection for it, and that all of such acts on the part of appellant were proximate causes of the injuries to the minor appellee.

The jury further found that Billy Drew Wade was upon that portion of the premises of the Country Club in the vicinity of the light pole in question as an invitee under invitation, either express or implied, of appellant Country Club.

It awarded Billy Drew Wade damage for physical pain suffered by him, from the time of the electric shock to the date of this trial, in the sum of $4,000; for physical pain, which in reasonable probability he would suffer in the future beyond the date of the trial, in the sum of $4,000; for mental suffering from the time of the electric shock down to the date of the trial in the sum of $3,000; for mental suffering he would suffer in the future beyond the date of the trial in the sum of $4,000; and for the cash value of such sums of money as he would in reasonable probability lose in the future, after reaching his majority, because of his diminished capacity to work and earn money after his majority, as a direct result of his injuries, in the sum of $5,000.

It awarded J. B. Wade the sum of $135 for the reasonable value of medical services rendered Billy Drew Wade prior to the trial.

Based on the answers to such special issues, the trial court entered judgment against appellant and in favor of appellee Billy Drew Wade in the sum of $20,000, and in favor of J. B. Wade in the sum of $135.

Appellant contends that the court erred in refusing to instruct a verdict in favor of appellant, because, under the undisputed evidence, the minor appellee, Billy Drew Wade, did not occupy the status of an invitee on that portion of the premises of the appellant where he was alleged to have been injured.

This contention cannot be sustained. The record shows that the minor appellee went to the club premises, where he had caddied on other occasions, to secure employment as a caddy. The group of trees in which the wire in question was encountered stood on a part of the golf course 50 or 75 feet from the first tee. The manager of the Country Club testified that he encouraged caddies to come to the club so that the members might enjoy the privileges of the club; that the boys were required to wait around in the vicinity of the first tee until they were given a golf bag to carry, and that there was no rule requiring them to remain in any particular place, but that until the caddies received an assignment they did pretty much as they pleased.

The test of whether one on premises used for public purposes is an invitee at the exact place of injury seems to be whether the owner of the premises ought to have anticipated the presence of a member of the public at this point on the portion of the premises devoted to public use. It is not essential that the owner of premises should have foreseen the precise injury to any particular individual, but merely that some like injury might, and probably would, result to some one lawfully on the premises. Texas Public Service Co. v. Armstrong, Tex.Civ.App., 37 S.W.2d 294, error refused.

45 Corpus Juris, page 830, § 240, lays down the following rule with reference to the duty of owners in this regard: "The duty to keep premises safe for invitees does not necessarily apply to the entire premises. It extends to all portions of the premises which are included within the invitation, and which it is necessary or convenient for the invitee to visit or use in the course of the business for which the invitation was extended, and at which his presence should therefore reasonably be anticipated, or to which he is allowed to go." Southwestern Portland Cement Co. v. Bustillos, Tex.Civ.App., 216 S.W. 268, conforming to opinion of the Supreme Court in 211 S.W. 929.

In the recent case of Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074, our Supreme Court, speaking through Chief Justice Alexander, in discussing the responsibility of the owner of premises to one on the premises as an invitee, held: "It is settled by the law of this State that if the plaintiff was on the premises as an invitee, it was the defendant's duty to exercise ordinary care to keep its premises in a reasonably safe condition, so that the plaintiff would not be injured; and that if the defendant failed so to do, it would be liable for the damages proximately caused thereby."

Under above facts, it being undisputed that the minor appellee was an invitee upon certain portions of the premises, we think that it must be conceded that he was an invitee on that portion of the golf course where he was injured.

Appellant assigns error in the refusal of the trial court to define the terms "express invitation" and "implied invitation", and that the trial court erred in submitting special issue No. 19 over its objection that the issue as framed was duplicitous, in that it embraced both an express and an implied invitation. This contention cannot be sustained.

Special issue No. 19 complained of, and the definition of "invitee" submitted in conjunction therewith, read: "Do you find from a preponderance of the evidence that Billy Drew Wade was upon that portion of the premises of the Country Club in the vicinity of the light pole in question as an invitee, under invitation, either express or implied, of the defendant Country Club, on or about the 18th day of June, 1940? Answer `we do' or `we do not'. You are instructed that an invitee is one on the premises of another with the owner's knowledge or consent and to engage in an undertaking for the mutual benefit of the said owner and the one to be employed."

The owner or occupant of premises owes the same duty to exercise ordinary care for the...