Toone v. Adams, 464

• Decision Date: 10 July 1964
• Docket Number: No. 464,464
• Citation: 137 S.E.2d 132,262 N.C. 403
• Parties: , 10 A.L.R.3d 435 John H. TOONE v. John Baxter ADAMS, Kenneth E. Deal and Raleigh Basaball, Inc.
• Court: North Carolina Supreme Court

Page 132

137 S.E.2d 132

262 N.C. 403, 10 A.L.R.3d 435

John H. TOONE v. John Baxter ADAMS, Kenneth E. Deal and Raleigh Basaball, Inc.

No. 464

Supreme Court of North Carolina.

July 10, 1964

Bailey, Dixon & Wooten, Raleigh for plaintiff.

Smith, Leach, Anderson & Dorsett Raleigh for Kenneth E. Deal and Raleigh Baseball, Inc., defendants.

SHARP, Justice.

The first question raised on this appeal is whether the rules and regulations of the National Association of Professional Baseball Leagues, included in the complaint as paragraph 6, were properly stricken. Plaintiff contends that the rules were properly included in the complaint because they constitute the contract which 'governs the relationship between the plaintiff and the demurring defendants.'

It is well settled in North Carolina that where a contract between two parties is intended for the benefit of a third party, the latter may maintain an action in contract for its breach or in tort if he has been injured as a result of its negligent performance. Gorrell v. Greensboro Water Supply Co., 124 N.C. 328, 32 S.E. 720, 46 L.R.A. 513; Jones v. Otis Elevator Co., 234 N.C. 512, 67 S.E.2d 492; Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551. The parties to a contract impose upon themselves the obligation to perform it; the law imposes upon each of them the obligation to perform it with ordinary care and they may not substitute a contractual standard for this obligation. A failure to perform a contractual obligation is never a tort unless such nonperformance is also the omission of a legal duty. Council v. Dickerson's, Inc., supra. The contract merely furnishes the occasion, or creates the relationship which furnishes the occasion, for the tort. Peele v. Hartsell, 258 N.C. 680, 129 S.E.2d 97; Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893; 12 Am.Jur., Contracts § 458; 34 N.C.L. Rev. 253.

The allegation that plaintiff was an umpire for the Carolina League, Inc., of which these defendants were members, remains in the complaint, and establishes the relationship between the parties to this appeal for the purpose of demurrer. Out of this contractual relationship a legal duty developed upon these defendants to use due care to protect the plaintiff and to refrain from endangering his personal safety while he was acting as their umpire. The inclusion of the specific rules of the Baseball League was, therefore, unnecessary to establish the relationship between these parties. Since the plaintiff, having sued in tort, must accept the standard of care prescribed by the common law, any contract provision prescribing a greater, lesser, or the same standard of care is not relevant to the issue of actionable negligence and should be stricken on motion. Pinnix v. Toomey, supra. Therefore, paragraph 6 of the complaint was properly stricken under the rule that a complaint should not contain irrelevant or evidentiary matter. G.S. § 1-153.

This ruling, of course relates only to the pleadings. It would not necessarily determine the admissibility of the stricken rules as evidence if this case were one for the jury. Rules governing the conduct of games, workmen in industry, and the operation of private business projects have, in proper cases, been held admissible on the theory that they constitute some indication of the care required under the circumstances and are properly considered by the jury in determining whether defendants' conduct measures up to the standard of the reasonably prudent man. See Everett v. Goodwin, 201 N.C. 734, 161 S.E. 316; Annot., 50 A.L.R.2d 16.

The second question presented is whether plaintiff stated a cause of action against defendants for damages proximately caused by their breach of a duty arising out of the contractual relationship between them.

Plaintiff contends (1) that defendants breached the duty which the home team owed him as umpire, to provide adequate protection for his personal safety during and immediately after the game, and (2) that defendant Deal, acting within the scope of his employment by Raleigh Baseball, Inc., deliberately created an attitude of hostility and personal enmity towards plaintiff which aroused the partisan spectators and thereby incited Adams to commit the assault of which plaintiff complains.

For present day fans, a goodly part of the sport in a baseball game is goading and denouncing the umpire when they do not concur in his decisions, and most feel that, without one or more rhubarbs, they have not received their money's worth. Ordinarily, however, an umpire garners only vituperation--not fisticuffs. Fortified by the knowledge of his infallibility in all judgment decisions, he is able to shed billingsgate like water on the proverbial duck's back. Illustrative of this faculty is the storied conversation of three umpires who were discussing matters of mutual interest:

'Balls and strikes,' said one, 'I call them as I see them.'

'Balls and strikes,' said the second, 'I call them as they are.'

'They are not balls and strikes until I call them,' decreed the third.

It is not necessary for us to decide whether a proper concern for the safety of an umpire today requires the members of the League for which he works to furnish an armed guard to protect him from the baseball public. In this case plaintiff is stymied by his allegation that two policemen and an assistant umpire were escorting him at the time he was assaulted by one irate fan out of an attendance of 3,452. How many policemen would he contend were reasonably required for his adequate protection? Hindsight may indicate that greater vigilance was required of the two who were then acting as plaintiff's escort, but it does not disclose that more were needed to protect plaintiff from the one man who assaulted him. The allegations of the complaint affirmatively disclose that the lack of police protection was not one of the proximate causes of plaintiff's injury.

We come now to the next aspect of the second question. Viewed in the light most favorable to the plaintiff, do the allegations of the complaint justify the inference that Deal's conduct was the proximate cause of Adams' assault upon the plaintiff?

The law imposes upon every person who enters upon an active course of conduct the positive duty to use ordinary care to protect others from harm and a violation of that duty is negligence. It is immaterial whether the person acts in his own behalf or under contract with another. Council v. Dickerson's, Inc., supra. An act is negligent if the actor intentionally creates a situation which he knows, or should realize, is likely to cause a third person to act in such a manner as to create an unreasonable risk of harm to another. Restatement, Torts §§ 302, 303. What is the application of this general statement of the law to the facts of this case?

'Civil liability for an assault and battery is not limited to the direct perpetrator of the act charged; it extends to any person who by any means encourages or incites that act or aids and abets it.' 6 Am. Jur.2d, Assault and Battery § 128. Accordingly, all those who participate directly or indirectly in an assault and battery are jointly and severally liable therefor whether or not they were actually present when the assault was committed. However, there can be no joint liability unless there was such procurement, instigation, or incitation as constitutes, in effect, concert of action. 6 C.J.S. Assault and Battery § 27. 'One is not responsible for a beating inflicted by another, however wrongful it may be, simply because he thinks the punishment deserved, or is pleased at it, or thinks well of it. He must do something more. ' Blue v. Christ, 4 Ill.App. 351. Plaintiff makes no allegation that there was ever any personal contact or concert of action between Deal and Adams. Apparently, the theory of plaintiff's case is that Deal attempted to incite mob action but succeeded only in inciting Adams. The allegation of the complaint is that Deal intended...