McWilliams v. Parham

152 S.E.2d 117 (1967)

269 N.C. 162

Henry McWILLIAMS v. George H. PARHAM, Jr.

No. 519.

Supreme Court of North Carolina.

January 20, 1967.

*119 Joyner & Howison, Raleigh, for plaintiff appellant.

Maupin, Taylor & Ellis, Raleigh, for defendant appellee.

LAKE, Justice.

The motion to strike is directed to the entire second further answer and to the entire third further answer for the reason, in each instance, that the allegations *120 therein contained do not constitute a defense to the cause of action alleged in the complaint. The motion is, therefore, equivalent to a demurrer to each such further answer. Cecil v. High Point, Thomasville & Denton R. R., 266 N.C. 728, 147 S.E.2d 223; Galloway v. Lawrence, 263 N.C. 433, 139 S.E.2d 761; Williams v. Hunter, 257 N.C. 754, 127 S.E.2d 546.

In each instance the motion should have been allowed.

The defense which the second further answer purports to allege is the assumption by the plaintiff of the risk that he would be so injured. It is well established in this jurisdiction that assumption of risk is not available as a defense to one not in a contractual relationship to the plaintiff. Clark v. Pilot Freight Carriers, 247 N.C. 705, 102 S.E.2d 252; Gilreath v. Silverman, 245 N.C. 51, 95 S.E.2d 107; Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398; Broughton v. Oil Co., 201 N.C. 282, 159 S.E. 321. The distinction between the defense of contributory negligence, which the defendant has alleged in his first further answer and defense, and which is in no way affected by our decision upon the matters now before us, and the defense of assumption of the risk is clearly drawn in Cobia v. Atlantic Coast Line R. R., 188 N.C. 487, 125 S.E. 18, and in Horton v. Seaboard Air Line R. R., 175 N.C. 472, 95 S.E. 883.

The defendant, in his brief, recognizing that "the defense of assumption of risk is one growing out of the contract of employment," relies on his allegation in the second further answer that "any injury sustained by the plaintiff while he was in the employment of the Carolina Country Club and the patrons of its golf course as a caddy" was sustained in an employment, the risks incident to which were obvious and well known to the plaintiff. This is a far cry from an allegation that the plaintiff was employed by the defendant or that there was any contractual relationship between them. On the contrary, the defendant's own allegations both in the second and in the third further answer show that the plaintiff's employment was "of" the Club, "by" the Club and "for" the Club. The Club is a corporation. It appears from the answer, itself, that the plaintiff was not caddying for the defendant but for players in a group entirely separate and apart from the defendant and his companions. Nowhere in the pleadings is the relationship of the defendant to the Carolina Country Club set forth. The only reference to this relationship is the admission, in the answer in chief, of the allegation in the complaint that when the event in question occurred, "the defendant was enjoying membership privileges of the Carolina Country Club and was playing golf with another person on said course." Thus, it does not appear that the defendant was even a member of the Club, but if he was a member of the corporation, which employed the plaintiff, this would not make him a party to that contractual relationship. Consequently, it appears upon the face of the answer, itself, that a prerequisite to the defense of assumption of the risk is lacking.

Furthermore, when the necessary relationship between the parties is shown, the doctrine of assumption of risk extends only to those risks which are normally incident to the occupation in which the plaintiff engages. Extraordinary risks, including additional hazards caused by the negligence of the employer, or of others upon the employer's premises, are not assumed by the employee. See Cobia v. Atlantic Coast Line R. R., supra.

It is a well recognized and established custom among golfers to give warning by crying "Fore," or some similar exclamation, prior to attempting to drive a golf ball into the vicinity of another person on the course who does not appear to be aware that such a drive is about to be made, whether such other person be another player, a caddy or a spectator. A driven golf ball travels at high speed and can inflict *121 serious bodily injury, as in this instance. To drive a golf ball toward such a person, who is within probable range of the intended flight of the ball, without giving such warning, is negligence. Boynton v. Ryan, 3 Cir., 257 F.2d 70; Miller v. Rollings, Fla., 56 So. 2d 137; Stober v. Embry, 243 Ky. 117, 47 S.W.2d 921; Page v. Unterreiner, Mo.App., 106 S.W.2d 528; Toohey v. Webster, 97 N.J.L. 545, 117 A. 838, 23 A.L.R. 440; Povanda v. Powers, 152 Misc. 75, 272 N.Y.S. 619. The plaintiff, whom the answer alleges to have been well acquainted with the customs and rules of the game, was entitled to assume that players in the party following that for whose members he was caddying, would observe such custom. He cannot, therefore, be held to have assumed the risk of injury through the negligent failure of such a player to give warning of his intent to drive a ball into the plaintiff's vicinity, even if the other prerequisites to the application of the doctrine of assumption of risk be present. Toohey v. Webster, supra; Povanda v. Powers, supra; Getz v. Freed, 377 Pa. 480, 105 A.2d 102.

It is well known to caddies, and to those who frequent golf courses, that skillful players occasionally, and players of average skill frequently, strike the ball with care and then find, to their dismay, that it "hooks" to the left or "slices" to the right, or otherwise departs substantially from the intended course of flight. As between a caddy and his employer, the caddy may, therefore, be held to assume the risk of injury from such a drive, but he cannot be held to assume, even as to his employer, the risk of injury due to the negligent failure of a player to observe the established rules and customs of the game. Biskup v. Hoffman, 220 Mo.App. 542, 287 S.W. 865; Toohey v. Webster, supra; Povanda v. Powers, supra; Getz v. Freed, supra.

In the present case, the cause of action alleged in the complaint is one for damages proximately caused by the negligent failure of the defendant to give the customary warning before driving the ball in the direction of the plaintiff, who was then within range of the drive and unaware of the intent of the defendant to drive. Thus, the second further answer does not state facts which would constitute a defense to this alleged cause of action, even if the answer had alleged a contractual relationship between the parties.

The third further answer purports to allege the defense of immunity to suit by reason of the provision of the North Carolina Workmen's Compensation Act, G.S. § 97-9. That statute reads:

"Every employer who accepts the compensation provisions of this article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee who elects to come under this article for personal injury or death by accident to the extent and in the manner herein specified." (Emphasis added.)

G.S. § 97-10.1 provides that if the employee and the employer are subject to and have accepted and complied with the provisions of the Act, the rights and remedies thereby granted to the employee shall exclude all other rights and remedies of the employee as against the employer.

The third further answer alleges that the Carolina Country Club is a corporation and that the plaintiff was an employee of the corporation. As above stated, the pleadings do not show the relationship of the defendant to the corporation. It is merely stated that he was "enjoying membership privileges" of the Club. Assuming this to mean that he was a member of the Club, he would not thereby be the corporation and, therefore, would not be the employer of the plaintiff. Consequently, G.S. § 97-10.1 has no application to the right of the plaintiff against this defendant, and G.S. § 97-9 confers no immunity upon this *122 defendant unless he was "conducting" the business of the Carolina Country Club when playing golf upon its course.

While in Essick v. Lexington, 232 N.C. 200, 60 S.E.2d 106, this Court held that this statutory provision conferring immunity to suit should be liberally construed, the Court in that case went no further than to hold that the treasurer of a corporate employer and the superintendent of its plant were persons conducting its business within the meaning of this statute. In Warner v. Leder, 234 N.C. 727, 69 S.E.2d 6, Denny, J., later C. J., speaking for the Court, said:

"We hold that an officer or agent of a corporation who is acting within the scope of his authority for and on behalf of the corporation, and whose acts are such as to render the corporation liable therefor, is among those conducting the business of the corporation, within the purview of G.S. § 97-9, and entitled to the immunity it gives; [citations omitted] and that the provision in G.S. 97-10 [now G.S. 97-10.1] which gives the injured employee or his personal representative `a right to recover damages for such injury, loss of service, or death from any person other than the employer,' means any other person or party who is a stranger to the employment but whose negligence contributed to the injury. * * * The legislature never intended that officers, agents, and employees conducting the business of the employer, should so underwrite this economic loss."

In Weaver v. Bennett, 259 N.C. 16, 129 S.E.2d 610, and in Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536, we held that the immunity granted by this statute does not extend to an independent contractor, or to the employees of such independent contractor, engaged in work upon the premises of the employer of the injured plaintiff. It would surely follow that the immunity would not extend to a mere patron of the employer's business, even though such patron be also a stockholder, or otherwise a member, of the corporation which owns the business and employs the injured plaintiff.

It follows that neither the second further answer nor the third further answer states facts which, if proved, would constitute a defense to the cause of action alleged in the complaint. The motion to strike should, therefore, have been sustained as to each of these further answers. The matter is, therefore, remanded to the superior court for the entry of an order sustaining the motion to strike from the answer filed by the defendant these portions of it.

Reversed and remanded.