Summary
acknowledging possibility that machinery manufacturer could be vicariously liable for negligence by employees “engaged in athletic activities,” though manufacturer was “not in the business of athletics”
Summary of this case from Franza v. Royal Caribbean Cruises, Ltd.Opinion
No. 31913
Decided May 17, 1950.
Master and servant — Respondeat superior — Promotion of employee athletics by manufacturing company — Ball driven by employee member of company-bannered golf team — Struck another and caused injuries — Game after working hours — Employee voluntary team member, not compensated as such — Not, while playing, under control of company — Company not liable for injuries.
A company manufacturing machinery and equipment and promoting athletic activities among its employees accepted an invitation of the Y.M.C.A. to join an industrial golf league and paid an entrance fee. An employee of the company, known as an athletic supervisor, appointed a captain of a golf team who asked another employee of the company whether he cared to play on such team. Such other employee voluntarily and without coercion asserted. The latter was playing golf under such arrangement, after his working hours, without compensation and under no control or direction of his employer and under no penalty if he desisted from playing, when he hooked a golf ball to his left, as a result of which the ball struck a person on a fairway other than the one upon which the employee was playing, causing certain injuries to the person struck. The playing employee reported the accident to the athletic supervisor. The company received publicity from its participation in the golf league, furnished shirts with the company's name on them to the players, paid the green fees and gave a banquet at the end of the year with distribution of trophies for athletic prowess. Held: The company was not liable, under the rule of respondeat superior, for such injuries.
APPEAL from the Court of Appeals for Hamilton county.
On January 20, 1948, Fred W. Rogers, hereinafter designated plaintiff, instituted an action in the Common Pleas Court of Hamilton County against Allis-Chalmers Manufacturing Company, hereinafter designated defendant.
In his petition plaintiff alleges the following:
Defendant is a Delaware corporation, doing business in Ohio and is engaged, among other and incidental things, in the manufacture and sale of equipment and machinery and in the advertising of such articles for sale. In its business of advertising its name and products and in the course of maintaining the health and good will of its employees, defendant, through its officers, agents, and employees, engages in games of golf and other athletic contests.
About 5:30 p.m. on June 9, 1947, plaintiff was playing golf at Avon Fields, a public golf course in the city of Cincinnati, and was standing in the fairway between the thirteenth tee and the thirteenth hole selecting a club preparatory to continuing his game on to the thirteenth green. Defendant at such time, through its employee, was engaged in a game of golf on the same course and was driving a ball from the fourteenth tee in the course of proceeding with its game on to the fourteenth green. The direction from the thirteenth tee to the thirteenth green is north to south, and from the fourteenth tee to the fourteenth green is south to north. The fairways of the holes border on each other.
Defendant drove its golf ball from the fourteenth tee and across the area separating the two fairways, which ball struck the plaintiff standing in the thirteenth fairway, causing him certain injuries.
Plaintiff claims that the defendant was negligent in the following respects:
(a) Driving its ball off the area of the hole it was playing and into the area of the next hole.
(b) Driving its ball with greater force than it could have been driven with reasonable control over the direction of its flight.
(c) Failing to give notice of its intent to drive.
(d) Failing to adequately warm the plaintiff.
(e) Failing to call, "fore."
(f) Failing to call, "fore," in sufficient time to have called plaintiff's attention to the drive.
(g) Calling, "fore," after the approach of the ball in flight so close to the plaintiff that the intended result, the facing of the plaintiff toward defendant, brought plaintiff's eye in the line of flight at the same time the ball struck plaintiff and caused the injuries described.
In its amended answer defendant admits that it is a Delaware corporation, doing business in Ohio; that it is engaged, among other things, in the manufacture and sale of equipment and machinery; and that in the due course of the conduct of its business it advertises articles manufactured by it for sale.
Defendant denies that, in advertising its name and products and in the course of maintaining the health and good will of its employees, it engages through its officers, agents and employees in games of golf and other athletic contests.
Defendant admits that plaintiff was playing golf at the time and place mentioned in the petition and received injuries, but alleges that the injuries were caused solely and proximately by the negligence of plaintiff and that plaintiff voluntarily assumed the risk of incurring injuries while engaged in playing golf.
The amended answer contains a denial of all things not specifically admitted to be true.
Plaintiff filed a reply in which he denies any negligence upon his part, that he assumed any risks except the ordinary risks of a golf game, and that he assumed the risk of the negligence of defendant as described in the petition.
Plaintiff's counsel in the opening statement to the jury asserted the following:
On June 9, 1947, plaintiff went to Avon Fields to play golf with a relative and in the course of the game they came to the thirteenth hole which runs generally in a northerly and southerly direction. Plaintiff had started from the thirteenth tee to play to the thirteenth green. Between the tee and the green there is a fairway, extending for some distance on either side, and off the fairway there is what is known as the "rough" where the grass is high and it is harder to hit the ball. Plaintiff had arrived at a point about 100 yards from the thirteenth green, on which was the thirteenth hole, his ball was on the ground and he was about ready to hit it and knock it up to the green. He did not have a caddy and was selecting a club for his next stroke.
The fourteenth tee and green are alongside the thirteenth, and there are posts and markers designating the boundary between the area of the fourteenth hole and the area of the thirteenth hole. It was about 5:30 p.m., and there were four players between the fourteenth hole and green, one of whom was a Bill Haas. He took a driver, which is a club used in hitting a golf ball the hardest, fastest and the farthest, and hit his ball which, instead of going straight down the fourteenth fairway, hooked to the left and struck the plaintiff in the eye.
There is a word of warning in golf called "fore," which is supposed to be and should be called by golfers in time for anyone within range to protect himself against a flying golf ball.
Bill Haas was a good golfer and a blow such as he struck would cause a golf ball to travel at a maximum speed of 110 to 120 miles per hour and in about two seconds to travel the distance from where it started to where it reached plaintiff. Nobody called, "fore," before Haas's ball was struck, but after it was struck there was a cry of "fore," which caused plaintiff to look in the direction from which the call came when he was hit by the ball.
The lawsuit is against defendant rather than Bill Haas. Defendant has its main office in Milwaukee, but it has a number of other plants including an industrial manufacturing plant in Norwood. Bill Haas is an employee of defendant. Defendant had seen fit to promote, sponsor and supervise athletics engaged in by its employees.
The Norwood Y.M.C.A. promoted an industrial golf league in the spring of 1947 and wrote to the industries in Norwood, including defendant, that the Y.M.C.A. is interested in fostering industrial relations and invited defendant to participate. Defendant answered that it would participate in playing golf at five p.m., paid $25 entrance fee and thereby entered into the league a golf team which played under the banner of defendant. The "T" shirts had defendant's name on them and were furnished defendant's employees who cared to participate. Defendant paid the green fees for its team, including the fee for Bill Haas to play on the day plaintiff was injured. The name of the golf team was placed on bulletin boards at the golf course and gained prominence in the newspapers of the community, and at the end of the year defendant, through its supervisor of athletics, promoted a banquet at which letters or sweaters and prizes were given, all bearing the name of defendant.
Bill Haas, in playing golf on the afternoon when plaintiff was injured, was on or about the business of defendant.
The remainder of the opening statement concerned the injuries which plaintiff suffered.
At the end of the statement, counsel for defendant moved for a directed verdict on the ground that upon the statement no cause of action existed against defendant.
After oral argument the following proceedings were had:
"The Court: Mr. Hogan, the court would like to give you an opportunity to enlarge upon your opening statement if you care to.
"Mr. Hogan: Thank you, your Honor, I would like to.
"The Court: Let's hear what Mr. Hogan would care to add to his statement.
"Mr. Hogan: The directions from the thirteenth tee to the thirteenth green is north to south and from the fourteenth tee to the fourteenth green is south to north, and the fairways of said holes border on the same rough grass. The plaintiff was generally in front of and a little to the left of the intended line of flight of Haas' ball —
"The Court: How does that lead up to this question of agency?
"Mr. Hogan: I am a little afraid I didn't go into negligence very much.
"The Court: Don't bother about that.
"Mr. Hogan: If counsel will so agree.
"The Court: You have stated enough on the subject of negligence. Confine it to the relationship existing between the man who hit the ball and the company at the time the accident occurred, whether or not at that time he was in the scope of his employment. In other words, you establish agency.
"Mr. Hogan: I don't want to get tripped up on some side point, Judge.
"To go on, Haas was a full-time employee, in the sense of an eight-hour day, five-day week, of the Allis-Chalmers Manufacturing Company. He was asked in the spring of 1947 whether or not he cared to play golf on a team in the Y.M.C.A. Industrial League at five o'clock.
"The Court: Asked by whom?
"Mr. Hogan: He was asked by Robert Barbeau, who was the captain of the team, and Barbeau had been asked to make up the team by William Kellar, who was an employee of the Allis-Chalmers Manufacturing Company with the title of supervisor of athletics of the Norwood works of Allis-Chalmers.
"Mr. Headley, Sr.: Do you mind if I interrupt you?
"Mr. Hogan: No.
"Mr. Headley, Sr.: You can't prove there was any supervisor of athletics out there, if you want to be right about it.
"Mr. Hogan: Kellar will say that is what his title is; that is what he is going to say.
"Mr. Headley, Sr.: That's not the case but he has a right to say that in opening statement.
"Mr. Hogan: The Allis-Chalmers Company Norwood Works had a section or department or some unit in charge of supervising and promoting an athletic program for the employees of the company. Kellar, in 1947, was in charge of this. In January or February, 1947, he submitted an athletic budget to the higher-ups of the company and was given an allowance of something in the neighborhood of three thousand dollars to be spent by him in promoting athletic activity among the employees of the company. This activity took two forms, industrial and intramural; the former meaning that teams under the company name were entered in leagues to combat with teams playing under other company names at places not owned by the company, and the latter meaning strictly intramural and on the company premises.
"The Court: What you mean to say is that the other companies participating in the league were also industrial firms.
"Mr. Hogan: Yes, your Honor.
"The Allis-Chalmers Company spent twenty-five dollars of its own money to enter a team in the Norwood `Y' Industrial League after the company had received some correspondence from the Norwood `Y' which asked: `Could your industry participate at five p.m. in men's industrial golf?' The letter from the Norwood `Y' which contained this question was addressed to the Allis-Chalmers Company, and after the Allis-Chalmers Company got it, its athletic director, Kellar, saw to it that a company check for the entrance fee was sent in to the Norwood `Y,' and Kellar also asked Barbeau to captain the team. The Allis-Chalmers Company paid the green fees of this team every Monday. Haas was a regular member of this team which played in the Norwood `Y' league under the name of Allis-Chalmers Company and he was playing when the occurrence took place. In addition he was wearing a `T' shirt bearing the company name which had been furnished to him by Kellar and which had been paid for by Allis-Chalmers funds. After the accident Haas promptly reported it to Kellar.
"I think that's all, your Honor."
Thereupon the trial court directed a verdict in favor of defendant, upon which a judgment was entered. A motion to set aside the verdict was overruled.
The case was appealed to the Court of Appeals, which, with one judge dissenting, affirmed the judgment of the trial court.
The case is before this court upon the allowance of a motion to certify the record.
Mr. Joseph P. Kinneary and Mr. Timothy S. Hogan, for appellant.
Mr. Sanford A. Headley and Mr. James G. Headley, for appellee.
The question presented is whether the trial court was justified in directing a verdict for defendant at the conclusion of plaintiff's opening statement to the jury.
There is no question that a trial court has authority to direct a verdict upon an opening statement of counsel, but such action should be taken with extreme caution. Upon an appeal from a judgment entered on a verdict directed as in the instant case, it must be assumed that all the relevant statements as well as inferences favorable to plaintiff to be drawn from them are true, and that assuming their truth they do not furnish any basis for a verdict for the plaintiff.
It is strenuously argued by plaintiff that in his opening statement it was shown that Haas was negligent in the manner in which he caused his golf ball to hit plaintiff without warning, and that Haas's acts upon the golf course were the acts of defendant under the doctrine of respondeat superior. Both those facts must be found to have existed before defendant can be called upon to respond in damages for plaintiff's injury.
Defendant strenuously argues that, assuming plaintiff's opening statement to be entirely true, no actionable negligence upon the part of Haas was shown, and that Haas was not acting as defendant's agent or servant in the golf game he was playing, which resulted in plaintiff's injury. It is claimed that, since he played golf, plaintiff assumed the risk of the injury he received, and there is persuasive authority to support that view.
Plaintiff was playing the thirteenth hole whereas Haas was playing the fourteenth. Plaintiff was not in the direct line of Haas's play and if Haas had driven his ball straight down his own fairway no injury could have happened to plaintiff. However, Haas's ball hooked to the left in plaintiff's direction. As soon as that happened there was a cry of "fore," and through pure accident (it is not claimed there was any intention to injure on the part of Haas) the ball struck plaintiff.
By participating in athletic contests, including golf, a player assumes the ordinary risks of playing the game, and one of the ordinary risks in playing golf is being hit by a golf ball. It is well known that the most expert players sometimes accidentally either slice or hook their balls so that they, instead of going straight, go either to the right or to the left.
In the case of Benjamin v. Nernberg, 102 Pa. Sup., 471, 157 A. 10, the syllabus reads:
"In an action of trespass to recover damages for personal injuries sustained while playing golf on a public links, the evidence disclosed that the plaintiff, who was playing in a foursome, was in the act of lining up his ball, preparatory to attempting to putt it into a cup, when he was struck in the mouth by a ball driven by the defendant. The defendant, who was playing in another foursome, had reached a tee and followed two of his companions in driving for the green. The entire fairway before him was clear and without giving warning he hit his ball. It did not go straight toward the green but went at a sharp angle to the left and struck plaintiff, who was on another green which was not in the defendant's line of play. After the defendant had hit the ball one of his companions seeing that it had been `hooked' toward the plaintiff, shouted `fore' but the warning was not sufficiently timely to save plaintiff.
" Held: (1) That the plaintiff had assumed all the ordinary dangers incident to the game (2) that there was no duty on the defendant to warn the plaintiff of his intention to play and (3) a judgment entered for the defendant non obstante veredicto will be affirmed.
"There is in the game of golf the element of risk and a player assumes, as a matter of law, the risk of injury resulting from his own participation."
In the case of Andrew v. Stevenson, 13 Scots. Law Times, 581, 31 Scottish Law Review, 194 (30 N.C.C.A., 33, note), the judge said:
"I do not for a moment, profess to lay down that whenever a player thinks he sees what seems to him a clear space in front of him he can proceed at once to play a full shot, or, for that matter, any shot, regardless of the risk of striking some other player."
However, in the case before him, the judge could not say that a full shot down an open course, when the nearest person in front was 84 yards off and well out of the direction, constituted fault. The strike might not have been correctly made, as was evidenced by the "slice" on the ball, but that could not create legal liability or of itself give a right to damages to a person struck, for persons engaged in playing a game take all the risks which may arise in its pursuit. See, also, Schlenger v. Weinberg, 107 N.J. Law, 130, 150 A. 434; Katz v. Gow, 321 Mass. 666, 75 N.E.2d 438; Walsh v. Machlin, 128 Conn. 412, 23 A.2d 156, 138 A.L.R., 538.
In the instant case the only statement as to the distance between plaintiff and Haas when he drove the ball which injured plaintiff is to the effect that the ball had a speed of from 110 to 120 miles per hour and traveled two seconds before reaching plaintiff. At ten miles per hour an object travels between 14 and 15 feet per second, so that at 110 miles per hour, Haas's ball traveled more than 300 feet in two seconds.
If we hold that under the circumstances narrated in plaintiff's opening statement there was no actionable negligence on the part of Haas, and that plaintiff's injury was the result of a pure accident and from a risk which he voluntarily assumed when he played golf, it will be unnecessary to inquire into the question whether Haas was acting as defendant's servant or agent in the course of and within the scope of his employment at the time he was playing golf as a result of which plaintiff received his injury. However, the record discloses that the trial court stopped one of plaitiff's counsel when he sought to amplify his statement with reference to Haas's alleged negligence, and, although it is difficult to imagine what additional statement could have been made to show negligence upon the part of Haas, in our opinion, the court should have allowed plaintiff's counsel to amplify his statement in any way he saw fit.
It is true that he made no proffer as to what his additional statement would contain but he was put somewhat off his guard by his right to assume that, when the court told him he had heard enough on the question of negligence, the court meant that a case of negligence had been stated so far as Haas was concerned. Therefore, we are impelled to decide this case, with reference to affirming the judgment of the Court of Appeals or remanding the cause to the trial court for a new trial, upon the question whether defendant was bound by Haas's actions upon the golf course at the time when his misdirected golf ball struck plaintiff.
Was Haas acting for and on behalf of defendant, within the scope of his employment and subject to the right of defendant to control his actions, when he was playing golf at 5:30 p.m. at the time his golf ball injured plaintiff?
Summarizing the opening statement of counsel for plaintiff in the most favorable light to plaintiff, it appears that defendant was a manufacturer of machinery and equipment; that Haas was a general employee of defendant on a forty-hour, five-day week basis; that defendant hired an athletic supervisor to promote both industrial and intramural athletics for the benefit of its employees; and that it financed such athletics although the athletics itself was no part of the general purposes of the business of defendant.
In the spring of 1947, the Norwood Y.M.C.A. promoted an industrial golf league and asked defendant if it could participate in the league at five p.m., which presumably was after working hours. The athletic supervisor of defendant answered that defendant would participate, sent a check for $25 as an entrance fee, and appointed one of defendant's employees as captain of a golf team. This captain asked Haas if he would care to play on the team and Haas voluntarily assented. The athletic supervisor gave Haas a shirt with the defendant's name on it and paid the green fees of defendant's golf team for each Monday evening, including the Monday on which plaintiff was injured. The defendant's name was publicized on the billboard at the golf course as well as in the Cincinnati newspapers, and at the end of the year, defendant, through its supervisor of athletics, promoted a banquet at which the defendant awarded letters or sweaters and prizes to various members of its teams, industrial as well as intramural. After the injury to plaintiff Haas promptly reported it to defendant's athletic supervisor.
It will be observed that defendant is not in the business of athletics and that its business is of such a nature that publicizing athletic prowess on the part of its employees would not be an advertisement of its products. We are aware of the growing and commendable tendency on the part of industrial concerns to promote athletic activities among employees and there may be occasions growing out of such a practice where employers could be held responsible for negligence upon the part of employees engaged in athletic activities. However, in the instant case Haas was not working at his regular employment when he was playing golf.
Defendant had not organized the golf league in which Haas was playing. It had been organized by the Y.M.C.A. and Haas agreed to play after working hours, with no demand or coercion upon the part of defendant. Presumably he received no compensation and was subject to no penalty if he did not play or if he desisted from playing at any time. It is true that defendant furnished him a shirt with its name upon it and paid his green fees, but it exercised no control over him while playing and the game of golf in which he was engaged was in a neighboring city, with no direction or control on the part of defendant as to any course of conduct of Haas while upon the golf course.
In order to obligate a master to respond in damages for the negligence of a servant it is necessary not only that the servant be acting within the scope of his employment but the master must have the power of control and direction over the conduct of the servant.
As to scope of employment, this court, in paragraph four of the syllabus of Tarlecka v. Morgan, 125 Ohio St. 319, 181 N.E. 450, said:
"The expression `scope of the employment' cannot be accurately defined, because it is a question of fact to be determined according to the peculiar facts of each case."
In the opinion at page 323, Chief Justice Marshall said:
"There is a clear distinction between acts done within the scope of the employment and acts done merely during the employment. `Scope of the employment' has never been accurately defined, although many attempts have been made. It cannot be accurately defined, because it is a question of fact and each case is sui generis. The act of an agent is the act of the principal within the course of the employment when the act can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of the service to be rendered, or a natural, direct, and logical result of it."
In our opinion, the act of Haas in playing golf after working hours, for which he received no compensation and which he could have ceased at any time without penalty, could not fairly and reasonably be deemed to have been an ordinary and natural incident or attribute of the service which he renders in his employment as a general employee of a company which manufactures machinery and equipment.
Then, too, in order for the rule of respondent superior to operate, the principal or master must have the power of control or direction over the conduct of the servant. The rule has never been better stated than as follows in paragraph four of the syllabus in the case of Clark v. Fry, 8 Ohio St. 358, 72 Am.Dec., 590:
"The rule of respondent superior, as its terms import, only arises out of the relation of superior and subordinate, is applicable to that relation wherever it exists, as between principal and agent, or master and servant, is coextensive with it, and ceases when that relation ceases to exist; and the reason of it is to be traced to the power of control and direction, which the superior has a right to exercise, and which, for the safety of others, he is bound to exercise over the acts of his subordinates."
As a general employee of defendant, Haas, during all his working hours was under the direction and control of defendant. That does not mean that any officer or agent of defendant stood over him while he worked, but the things that he had to do were subject to the control and direction of defendant and if he failed to comply with such direction and control he could be penalized. All his acts subject to such direction and control would be the acts of defendant and defendant would be liable therefor. We cannot conceive that, when Haas was on the golf course, even though defendant had paid his green fee and furnished him a shirt with defendant's name on it, it could be said that defendant exercised or had the right to exercise any direction or control over Haas's conduct or actions.
Plaintiff relies upon the case of Ackerson, Admx., v. Erwin M. Jennings Co., 107 Conn. 393, 140 A. 760, where it was held that it was a jury question whether a general manager of a company had the implied authority to invite the employees to a dinner and furnish them the use of a company car to go to the dinner, where one of the employees was injured by the negligence of a company employee in driving the injured employee home after the dinner. We are of the opinion that the facts in the Connecticut case are not comparable or analogous to those in the instant case.
The New York cases cited by plaintiff concern the right to recover under the workmen's compensation law. Workmen's compensation recovery is based entirely upon statute and has to do with questions aside from those relating to the doctrine of respondeat superior, i.e., workmen's compensation cases involve injuries arising in and out of employment and having a causal connection therewith.
Giving to plaintiff's opening statement the most favorable construction to plaintiff, which we are bound to do, and if all the statements contained therein were proved by competent evidence, we cannot see that plaintiff has, under the doctrine of respondeat superior, a cause of action against defendant.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, TURNER and TAFT, JJ., concur.