*1 CASES DETERMINED BY THE ST. LOUIS, CITY KANSAS AND SPRINGFIELD
OF AT THE TERM, MARCH 1926. by Walter Biskup, Biskup, Oscar Next Respondent, Friend, His George Appellants.* v. Homer A. Hoffman Blumeyer, Appeals. St. Court Opinion Louis filed June 1926. Appellate Subsequent Practice —Demurrer 1.— Introduction of Evidence — upon Evidence —Rule. Where defendants did not stand demurrers to the plaintiff’s case, evidence offered close of but introduced their own evidence, whether or not a there was case for must be determined in the light of all the evidence introduced. -Negligence—Golf—Caddy Injured Player’s by Driven Guest— 2.— —Ball Jury Question. damages personal injuries In an action for for Evidence — by plaintiff, caddy, by being eye,by golf ball, neg- sustained ligence struck in the a a guest golf striking injured caddy ball which host, caddy proceeding his by while the ahead toward another ball driven host, failing give warning struck, until after the ball been question caddy it, path that the was in the when observed held a jury. degree Same—Degree of care of Care Exacted of which Minor. 3.— only which, a minor under like the law exacts from child circum- stances, reasonably years expected intelligence. would be from one Same—Contributory Negligence' Evidence—Jury Question. Contribu- 4.— — caddy, injured golf tory a of ball defendant while defendant, caddy'was going held, driven for a host of insofar ahead ball question jury. evidence, supported as such issue was Golf—Caddy in Service Golf General Club— 5.—Master Servant Servant — Although general was in the Player service of Served. may work, nevertheless, respect particular golf club, trans- (542) n v. Hoffman-. acquiescence ferred with his own consent or party, to the service of a third and, when he was golf player, transferred to the service of a he became the player servant legal consequences with all the attendant of the new . . relation. . *2 Same—Same—Caddy' Injured Duty Driven Player’s of 6.— —Ball Guest— Player intended Caddy Danger. golf to player guest Warn of aWhere knew that his caddy position might to drive a ball and that his was in a where he reasonably expected have been to have been struck if the ball were driven who, inaccurately, five feet from player’s duty caddy,, only it became the to the warn was him, danger incurred, of the to be and the more so when the caddy’s youth is taken in consideration. Same—Timely Warning Question. Danger Evidence—Jury of Whether 7.— — golf player guest injured player’s a called “Fore” when struck a ball which caddy and, so, warning timely, questions whether his was the were - - : jury. Submitting Jury Appellate Upon Case to Instruction on Practice — 8.— Measure Damages Exception Complain Appeal. of Alone —No on —Cannot complain, appeal, Defendants cannot be heard to mitted on that trial court com- the jury submitting plaintiff’s upon case- an to the instruction error damages upon alone action the was not made measure of where such court of exception a matter of below. Setting Entitling Ask Forth 9.—Instructions—Failure Plaintiff of entitling plaintiff to Instruction Facts act Recover —Condemned—Not Reversible Error. While counsel in declining setting the facts to ask an instruction forth condemned, repeatedly it is not rever- to recover has been error. sible Duty. In a civil No Cases—Non-Direction—Court Owes 10.—Same—Civil duty give party instructions a to either the court does not owe action in lieu of those refused. its own initiative or either on Assumption The doc- of Risk —Doctrine Stated. 11.—Master Servant — nature, upon an assumption and rests is contractual of risk trine of that, master, ordinarily .implied, the master agreement servant with its of a ordinary resulting any injury from the servant liable for shall not be employment. perils of the the nature incident to risks and usual Player Caddy Negligence In- Instructions—Assumption — Risk — 12.— Injury Prop- Player Employed jured Who Caused Golf —Instruction —Not submitting as- the defense of erly an instruction refusal of Refused. caddy caddy proper in- where part held of the sumption on the of risk injury, and fur- golf player caused the employed who jured not was appropriate, the fact thermore, were if the instruction _ even otherwise justifica- negligence sufficient player’s would be evidence of there was that tion refusal. for its Same—Commenting Portion of Evidence—Instruction on Detached 13.— that mere fáct the effect Properly An instruction Refused. caddy thereof, in- was golf a result as player struck the jured, was player, against caddy a verdict to entitle in itself sufficient por- a detached on comment an unwarranted properly refused evidence. of the tion an instruction Injured Same—Golf—Caddy Refusal —Accident. 14.— pure un- accident a injuries caddy’s the result were found if the mixed for should be golf player, the verdict part any negligence with injuries caddy’s disclosed the evidence error held defendants,’ alone, negligence or defendants’ either attributable caddy. contributory together Missouri Propositions 15.—Same—Abstract of Law—Refusal of Instruction Harm- duty golf player caddy less. Refusal of an instruction-that owed host’s exercising ordinary striking duty of dy care in the ball and that cad- toward greater links, person upon golf was no than toward or less other law, correct, although, held jury proposition an abstract .instruction that it its refusal harmless for reason would afforded the determining aid in the issues involved. no Assignment ¡Appellate of Error That Court Erred in Over- Practice — 16.— ruling Nothing assignment Motion for New for Review. An Trial —Presents merely stating overruling error that the court erred in motion defendants’ trial, assignment presents nothing for a new the held such an for review-' in appellate court. Instructions—Golf—Player Employer and- Not' 17.—Master Servant — Caddy Require Engaged Minor Requested Where who gaged not to Club so as to Permit Under Statute- Golf Presenting Refused —Reversible Error. Instruction Such Issue caddy years age, assigned golf player under fourteen by him, during specially engaged . arid times not en- who had not been golf club, player members, under the control of held in service of caddy 5, p. “employer’’ Laws .of so under section superintendent permit require from the or certificate for resides", public and. principal district where he hence school of the *3 requested defendant to the effect that de- the refusal of an instruction act, meaning employer of such within the fendant was not - , error. . was reversible 849, p. Error, 3CJ, p. Juris-Cyc. Appeal n. *(cid:127)"Corpus 13; References: 39CJ, Servant, 83; 1049, 1391, 14; 4CJ, p. p. 919, 34; p. n. Master and n. n. New; 48; 1168, 687, p. 25; 512, p. New; 298, n. n. 276, p. n. 29 p. n. n. 29Cyc, 537, 45; Negligence, p. 77; 79; 1182,- p...l227, 78; 1170, p. n. p. n. n. 1549, 45; p. 1647, 26; Trial,' 38Cyc, p. 642, n. 636, p. n. 57; p. n. n. n. p. . 1709, n.,,4. 1691, p. n. n Hon, City St. Court the Circuit Appeal .from Louis.— Landwehr, Judge. Frank Hoffman. Defendant as to Affirmed Blumeyer. Defendant and remanded as to
Reversed (& appellant Hoffman. Leahy, Walther for Saunders pari (1) neg'lig’ence evidence of on the There was not sufficient jury, Hoffman and the court defendant to take case to the evidence directed the should have sustained demurrer jury to in his favor at the close of casé return verdict (2) guilty and at close of the whole case. Plaintiff was of con- tributory negligence have di- as a matter of law and the court should (3) Considering the case a verdict defendant Hoffman. rected favorably pure accident, it one of most unmixed Hoffman, part the court given requested by should have instruction No. defendant Hoffman. by a Under the -risk of hooked evidence the Bisküp Hoffman. ordinarily incident and a risk plaintiff, was which struck employed golf, or to one game in a engaging present to one ever caddy. acting in' such risk plaintiff assumed as a 443-; Feary L. B». v. Street 838, 23 A. Webster, 117 Atl. Toohey v. refusing give (4) The court erred 99. Railway Co., Mo. ' evidence, the If, 3. under the No. instruction Hoffman’s defendant Hoffman accident, so that pure was a hooking of the ball sharply would veer' so that it reasonably anticipated could not liable, arid this not be held flight, he could line of the intended Railway'Co., Feary v. Street given. been should have instruction ' : 99, 162 Mo. Blumeyer. appellant B&geman for Norman & Grimm
Grimm part of de- any negligence on the (1) was no evidence of There negligence on the guilty of be held unless he could fendant age in viola- fourteen employed boy under ground that he though there were evidence (2) But even of the statute. tion petition negligent order, the amended warn or a negligent failure to 1106, R. of see. S. charges negligence the violation as distinct acts of assignments 184, these' 1919, 1921, p. so that and Laws of Mo. (3) 1106, R. and the But sec. S.
negligence are the case: repealed by part expressly of which it forms a article entire repealed in been terms 1921, p. But Laws of Mo. 184. Hough, 185 by implication. Maret v. repealed
would have been Blumeyer did not violate (4) provi- W. 544. The defendant seq.), he did (Laws p. et since Act of 1921 sion employee Hill of the Sunset employ plaintiff, who was the Act of 1921. Claremont meaning Club within the *4 -394; Country Indian Hill Com., 174 v. Industrial Calif. Club 615; Ark. 271; Bard, 57 Com., 309 Gaines v. v. Ills. Club Industrial 499; Co., 189 Mo. v. Transit Quarman Burnett, 6 &W. Sluder v. Mees. (5) Serv., 19, 52, 61. The ein- & secs. seq.; Labatt, 139 et 1 Master negligence,, was but plaintiff in the' statute ployment of violation of' recovery. There must be warrant a is itself sufficient to this not of injury negligence alleged and the a causal connection between the See Act wanting is such causal connection. plaintiff. Here there to 583; 77 Boesel v. seq.; Stone, v. N. H. 1921, p. 184 -et Lindell Ludlow, '899; 463; 227 S. W. Fargo Co.,& 260 Platt v. Wells Mo. Serv., 4756, & 149; Labatt, 4 Master Roper Greenspon, 192 S. W. v. 497; Mylett Montrose, note; Weston, 169 v. Stagg v. Mo. sec. 157a Blumeyer (6) temporary App. 97. The fact Co.,'211 Mo. employer him within the plaintiff did not make control over statute, Bard, 57 Ark. Ames v. Jor- v. meaning the" Gaines of. 189 139. Co., Mo. dan, 71 Sluder v. Transit Me. App.
220 Mo. —35. 220 Missouri
546
respondent.
Joseph
Gillespie
A. Broderick
John F.
meaning
within the
employed plaintiff
(1)
Blumeyer
Defendant
(2) Laws
1921, page 185.
1106,
1919,
of section
R. S.
and Laws of
1919,
R.
because
.1921,
1106,
page 185,
repeal
not
section
does
(3)
with it.
inconsistent
expressly repeal
it does
not
not
by
Blumeyer, in violation of
employment
Plaintiff’s
425; Mylett
214
Bright
Sammons,
v.
S. W.
statute,
negligence.
was
(4)
was
Montrose,
App. 635,.
v.
211 Mo.
to-wit, that, in Missouri, violation of..law and em- permitted ployed, plaintiff gainful- and to work in said suffered oc- cupation age while he years, was under the of fourteen and without requiring plaintiff have, plaintiff have, did a per- and while school, district, mit by principal certificate issued public ¡order resided, person wherein he by -any appointed -by or .an- , Board of city Louis, Education of St. he Missouri, wherein resided; Blumeyer knew, that defendant or the exercise of ordi- that., nary should known, .care have defendant an inex- Hoffman was liable, perienced and unskillful and player, to hit the in ball a.direc- -to, tion plaintiff other than-that which had reason believe .it would be hit, aforesaid; knew,:or by and defendant the.exercise have, ordinary that, care should in known, the said unskill- view.of. experience, fulness and Hoffman, plaintiff of said was liable to be injured struck and in position was, aforesaid-; where-he age was man of and judgment;:and mature under, experienced golf player, plaintiff and his direction and control, age; experience, judgment and lacked such knowledge and said inexperience unskillfulness, Hoffman’s and Blu- meyer plaintiff danger, should warned posi- -his said have tion, plaintiff and should position have instructed to take a where:he safe, exposed would be and not danger, to the said but that said de- Blumeyer negligently fendant carelessly failed to so warn .or ' - - plaintiff. instruct n “Plaintiff negligent this, states .defendant Hoffman.
to-wit, knew, or known, should have inexpe- anwas player, rienced and unskillful and unable to drive the ball driven, aforesaid; should have been if he-drove said.ball position aforesaid, while it -would be. liable to byor plaintiff; saw, ordinary.care and he strike exercise of should seen, plaintiff position; knew, have or said exercise ordinary known, should danger-of care have was in .that being position the ball struck said should-have warned driven, danger, said and should not the.ball while position, and should plaintiff was said not have driven the sáid- directly toward, against, at, upon plaintiff,-and ball should sufficiently warning .plaintiff ball without have driven said of his in- danger do, tention so so and of t.he- *6 220 Missouri carelessly to failed and negligently said and said (cid:127) carelessly drove negligently aforesaid, and plaintiff, as warn ’’ aforesaid. upon plaintiff, as against, at, and toward, ball said denial, coupled general awas of defendant The answer negligence. contributory plea a with coupled denial, general a Hoffman was answer of defendant The of risk. assumption contributory pleas conventional. answer was reply to each Plaintiff’s age years of was.twelve July 4, on injured Plaintiff was Country caddy Hill at the Sunset as a had served at the time. He > years before and one-half Sundays for one Saturdays and on Club injury was received. n boy desiring duty of a em- it was the The-evidence disclosed al- caddy club, master at-the report to the caddy ployment as a to or any particular at time report though-he required to was concerning regulations caddy master made any particular day. The thfem might caddy and control over boys- who was the character boys general gave the caddy -house. He also they at the while were When a member of the as caddies. their duties instructions as to caddy caddy, applied at the house of a club desired the services caddy par- There was no assigned him the master. boy a assignments. the member did system for If ticular -order or another, and the boy assigned him, he could ask for not want the agreeable a member unless it was caddy required' serve was not arrange permissible also for member advance to him. It was any particular caddy occasion. with the for his services on .duty caddy assigned member, soon became As as the ;1 bag report carry member’s tee, at No. and thereafter eye driven, keep his on it and locate clubs, and, when the ball was ' player. caddy stayed with-the whom -for the member-for lie unless he was working, never ran ahead of directed caddy’s- duty given to follow all so'to do. It was the instructions assigned. him the member to whom he during pay they waiting The caddies received- no the time were caddy assigned at house, but soon as one was to a member'he was given bearing a ticket name and the ticket member’s was then stamped signed by in a clock on and was the- coure, member and began-. were-completed, again As soon as his services the ticket was signed by-the stamped a clock on the -course and was -member and given caddy, caddy who in turn delivered it to the master. boys paid thirty per The' at hour, were the rate of and at cents they given pay envelopes, end of the were their week the amounts charged against tickets due as shown the several were the ac- who respective members had used caddy during counts paid the week. In some instances: the member himself game. the end of the Hoppman.
1.926] Blu- to defendant assigned day question plaintiff theOn Hill Club a member of Sunset meyer, who been Throughout game, Blumeyer’s guest. years. Hoffman was ten approximately three playing golf for although had been Hoffman, played with- shooting poorly. Seventeen holes years, had been distance tee from the seventeenth mishap. Hoffman drove out fairway. center of the yards, stopping of about 120 his ball *7 Hoffman, but landed ih than Blumeyer then 100 feet farther drove fairway. -caddies Both and the rough the left the defendants the to in the which the balls together the walked from tee directions ball, Hoffman’s and gone, stopping his had Hoffman and point 'Blu- Blumeyer on towards the where plaintiff proceeding and feet'frpm ball, lay. they yet twenty-five the meyer’s When ball ‘‘Fore,” hearing warning cry the turned to Hoffman call instantly right eye by in the the towards and was struck look speed at such that ball, which Hoffman had did hit npt sharply ball dodge swerved towards the left time it. Hoffman’s flight. in its when dispute
There some the evidence as to Hoffman called is during that his caddy- up-stroke, His testified ‘‘Fore.” and immediately struck thereafter he the ball. Hoffman himself striking Blumeyer ball that before the he called to to watch testified air, flight, that, the ball in the he called ‘‘Fore,” while path'of observed-plaintiff in the request it. Hoffman’s he when eye on the ball keep plaintiff. was not Blu- heard just called meyer that he himself ‘‘Fore” testified before Hoffman the ball. struck gave him no
Plaintiff testified directions as to they he proceeded or what should as he should stand do away where - point Blumeyer’s the lying. towards where from-Hoffman báll'was struck, fifty plaintiff was feet center, At the time frpm edge fairway, and was about five feet from Blumeyer. at the when struck, It was disclosed that the often flies a different that, intended, when it flies to from the right, course it is hook; players left a that all' slice, 'both called hook and although quite frequently, experienced players the ball slice are léss inexperienced do this than ones. It was also prone to showii that it customary golf player driving for a before is call'‘'‘Fore” when person in the direction in which other he intends some to send the might be which ball ball, or'in carried ináccurately, or wind, from its when a if diverted course player callé may be on links look towards ‘‘Fore” others who him to deter- location, turn backs his and then their mine towards'him while he struck in the face so as to avoid drives ball.
550 220 Missouri day injured on when he disputed that school It permitting him session, had no certificate was not employed at such work. to be assign as error the action the court over
Both defendants
ruling
evidence offered at the close
separate
their
demurrers
they
However,
upon
inasmuch
did not stand
case.
demurrers,
evidence, whether or
introduced their own
but
light
determined in the
all
was a case for the
must be
there
and, accordingly,
introduced,
correctness of the
evidence
assigned
error)
(also
ruling on
last demurrer
is the
court’s
only
[Canty
v.
point
Halpin,
be reviewed.
W.
S.
(Mo.
1087; Smiley
App.),
Jessup
Larkin Wells
W.
v.
v.
S.
(Mo.
Foundry
App.),
W.
Curtois v.
American Car
Company (Mo.
App.),
Gray
S. W.
Union
P.
Elec. L. &
(Mo.
Co.
App.),
drove ball towards without him. beyond proceeded was his Hoffman duty, point towards the yet twenty-five Blumeyer’s lay, ball and was feet des- tination, edge injured. and at fairway, when evidence The. customary golf player disclosed that was driving to *8 before person call when other in some was the direction in which “F.ore” driven, might the ball or in was to be which it be if carried struck inaccurately, as or if happened, often diverted from its course wind, that, the warning cry when such given, was the on others the links look would towards the one about to drive to determine his thereby point location the which it was his intention to drive then turn backs their towards him so being as to avoid hit in According the face the ball when testimony driven. which, of Hoffman himself, demurrer, plaintiff on given must be given benefit, warning was such until after the ball had been struck, plaintiff when he observed that path was in the of it. Under clearly we think was such circumstances it for the to determine whether or not Hoffman’s defendant conduct was such as to meet ordinary [Toohey Webster, the test care. v. 97 N. J. 117 545, L. 838, 23 Atl. A. L. R. 440.] Defendant Hoffman makes further contention that his demur- sustained, for rer should have been plaintiff reason that was contributory negligence as a guilty of matter law. However, we in Viewing find no merit this contention. the evidence light in the appears most favorable that he was walking in the duty he, and that in path turning called to>look towards cry warning Hoffman of “Fore” heard, was when was doing but customary was one links to what do under such cir- mindful, too, plaintiff We are cumstances. only twelve degree of years that the care which age, the law exacts from a 551 Hoffman. v. reasonably like circumstances would only which under ehild is intelligence. [Burger Mo. years and v. expected one Co., Mo. 439; Spillane 20 v. Pac. R. Co., 238, 112 S. W. Pac. R. Mo. 293; Co., Ter. R. 555, 20 Anderson v. Union 161 111 Mo. S. W. Co., 310, R. R. 200 Mo. v. St. & M.
411, 874; S. W. Deschner L. 89; Koelling W. (Mo.), Plumb 254 S. Jaquith 98 S. W. v. (Mo. 267 S. W. Plate App.), v. Fuel Co. Union Ice (Mo. 227 W. Mann Ludlow-Saylor App.), Co. v. Wire We App. 486, v. K. & T. 123 Mo. S. W. Co., R. 566.] M. clearly not therefore, guilty of the opinion, are in contributory negligence law, so far as such as a matter of jury. question for the supported by evidence, issue was it was Blumeyer proceeds charge against upon negligent First, two That he that he em theories: ployed plaintiff prohibiting caddy, as his of the statute violation age years when employment of a of fourteen child under the un session, school of is not in the district in which such child resides permit less ehild shall have a certificate issued the manner by law; second, negligently directed failed warn and, that he danger the ball to be driven Blumeyer’s greater part Hoffman. The brief is taken up argument guilty with the of a violation of the that he statute, employee for the reason that was the of the Sunset Country meaning Hill Act, support Club within the of such upon Country thereof he relies the cases of Club In Claremont 395, Com., Country dustrial 163 Pac. and Indian Hill Calif. Com., Club v. Industrial E. 871. Ill. N. We shall have opinion occasion later in upon to discuss the effect of the statute the case.
But, general even service the Sunset (as Hill contend), Club learned counsel does not follow during progress game duty resting upon there no ordinary plaintiff’s safety. to exercise During care for *9 serving Blumeyer, plaintiff the time he was was under directions, obliged and was to follow all his instructions. Blu- meyer required accept was not him in place, the first and, if his proved unsatisfactory, Blumeyer’s services it was within rights to discharge wages plaintiff him. The received for his services were charge against Blumeyer’s carried and, account consequently, relationship existing the facts as to the between and de- Blumeyer bring squarely fendant were such as to this case within that, although may general the rule one be another, service of respect nevertheless, particular may work, he be transferred acquiescence with his own consent or service party, third performamce so that in the of such duties he becomes a servant of party legal consequences third with all the attendant 220 552 Missouri 163; Schield, 512, 294 Mo. 243 S. W. [Holloway
new v. relation. 580, 299 253 S. Karguth Company, Mo. v. Donk Bros. Coal & Coke Mfg. (Mo. App.), Co. 367; Western W. Winkleblack v. Great 95; (Mo. App.), 241 S. W. 187 W. v. Hermann S. Grothmann App. 510, 213 S. W. 461; Co., Wilcox W. 201 Mo. City v. Kansas R. Range 483, 156; Healy Wrought Company, App. 161 v. Iron Mo. 143 S. W. 549.]
Blumeyer that Hoff- experienced man, was a knew mature in- shooting very poorly. Furthermore, man had it must be been player any was.apt ferred that was aware that to hook the ball at drive, time. He knew Hoffman was about to because flight Hoffman requested him to watch the which only information plaintiff possess. did not Plaintiff was five feet might reasonably position from and was in a where he been have expected inaccurately been if the ball were driven Accordingly, Blumeyer’s duty became warn danger to incurred, plaintiff’s youth more when so, and the taken into recognized duty consideration. That by-his the trial of testimony the case is shown that he called “Fore” just before However, Hoffman struck the ball. plaintiff’s evidence only warning given by discloses that the Hoffman, heard was that and accordingly, “Fore,” whether called and, so, wheth- warning’ er his questions timely, jury. for the point is made both defendants that the court committed error in submitting plaintiff’s jury upon case to the an instruction damages on the measure of alone. The fact that such action of the exception court was not made a matter of below ais sufficient answer to this However, apart contention. this, while the act declining counsel to ask setting an instruction forth the facts.en titling plaintiff repeatedly to recover has been condemned, it has been held not to be reversible error. v. Wabash R. Co., [Eversole 523, 419; Wingfield Mo. 155 S. W. v. Co., Wabash R. 347, 257 Mo. 1037; Railways S. W. McDonald v. United Company, 211 Mo. App. 559; 245 S. (Mo. W. Roemer v. Wells App.), 257 S. W. Nor in a civil action duty court does owe 1056.] party either give instructions, on its own either initiative or in lieu of Co., those refused. Union v. Pac. R. [Powell W. Ternetz v. St. Lime & Louis Cement Co. (Mo.), 252 S. (Mo. Eddings
W.
App.),
v.
Childress
S. W.
Williams
(Mo. App.),
Company
Columbia Taxicab
The plaintiff thereof golf a result ball, and Hoffman struck.the a ver to entitle injured, in itself sufficient was not. recovery upon the rely against Plaintiff did dict Hoffman. a result ball, and that as thereof mere fact that Hoffman struck the re properly this injured, and, accordingly, he was instruction portion of on a detached fused as comment an-unwarranted , Littig s(Mo.) 425; v. W. [Keppler the- 238 S. evidence. Well Heating S. Company, 226, 292 237 v. Mo. W. Urbauer-Atwood 779.] jury By sought to instructed instruction No. 3 Hoffman they injuries pure result found of a any negligence Hoffman, with part accident unmixed evidence that plaintiff’s verdict be for disclosed should him... injuries alone, or were attributable to defendants’ either ’ together contributory negligence negligence, to defendants and therefore was not error to refuse this instruction. Leming Company 441; Beard v. Lumber 281 (Mo.), S. W. [Head Co., 907; v. Mo. Pac. R. 272 197 S. Turnbow Dun 142, W. v. Mo. 103;
ham, 53, 272 197 W. Dietzman Louis Mo. S. Screw Com v. St. pany, 300 254 59; Mo. Bethurkas v. Chic. M. W. P. R. Co. (Mo. 438; 249 S. W. App.), Company (Mo. Lamar v. Morton Salt App.), S. W. 690.] duty
Instruction No. 4 provided that Hoffman owed exercising ordinary striking- duty care and- that in. greater towards any, was no or than toward person less other golf upon the links, and serving that the fact that impose upon did duty Hoffman the to exer ordinary cise more than As an proposition care. abstract of law correct, this instruction was refusal harmless, but 'its for the rea son that it would have afforded the in determining no aid the- issues involved. Lee, App. 38, v. 126 S. W. [Edwards Company (Mo. Morton Electric App.), v. Schramm S. W. (Mo.
Wilsch v.
App.),
Gleiforst
lows : . “If the find and believe from that, the evidence at the time he claims to have plaintiff been injured, caddy had as acted at the Sunset Hill Club; such, jurisdic- he was under the tion caddy of the caddy master or assistant club, master of said and assigned by or one the other of these from time to time to mem- bers of desiring the or club, their guests, the caddy; services of a you if further find and believe the that plaintiff, evidence at time, said had by been assigned, caddy either the master or his as- sistant, caddy to act as Blumeyer; for the defendant that the defend- ant Blumeyer engaged had specially of the services part designation no the selection or in of to act as his caddy, authority and that he exercised no control or plain- over the tiff give other than to him such- directions as were incident caddy services during progress golf game the of the of in which the engaged playing time, you the at find engaged, he was so' the then cannot be charged employing, suffering permitting, plain- or (14) tiff to caddy age years work aas under of without the fourteen requiring plaintiff have, permit or did not have, while by principal public certificate the issued school district wherein resided, any person by appointed by or of the Board order city Education of the St. Louis.” employment minors is controlled matter
provisions (Laws 1921, page 184, seq.), the' Act of 1921 et Blumeyer argues same, did not violate inasmuch as he meaning was not within employer such Act. question, After a most of this we have careful consideration arrived at- in this respect correct, the conclusion that the contention of the instruction was error. the refusal above Act, provides which at bar,
Section of the controls the case years age be employed under the of fourteen shall that no child at any occupation the school of the district in gainful when which such unless, session, such shall permit child child have a resides is provides shall certificate, super- the Act later be issued which public school of the of the district principal intendent or wherein appointed by an resides, or person some order of child the" such education, body having or directors, local super- board of board of schools, provided of record. It is entered further public vision of preserve take and of such shall employer child file the that the conspicuous place in a keep posted shall permit labor works list of all children such child who place are or factory permits, and that all labor such virtue of cer- laboring under and Hoffman. In- Industrial subject inspection the State tificates shall be - spector, may permit labor for cause. who cancel Although relationhip existing we have held above that the between Blumeyer during progress game was such legal impose obligations upon Blumeyer certain to exercise ordinary care for safety,- we do not think that he.was course, plaintiff’s employer meaning within the Of 'the statute. Blumeyer might brought caddy- grounds, own in which different, event our conclusion would be but -such is not the case here. the-supervision waiting Plaintiff was house-under *12 caddy master, by regulations' concerning1 whom the character boys might caddy general who were made whom instructions testimony given. as Plaintiff’s as to their duties caddies were own Blumeyer. Blumeyer We that was assigned is that to concede accept compelled nor required to to serve? merely contingency arisen, plaintiff had would have re- but, if such subject caddy assignment. further After the at the house to mained beginning play, Blumeyer might discharged plaintiff of the have would, service, his have returned to the from which event caddy discharge prevented plaintiff house, and such would not have serving caddy might to whom he later from other member ; assigned. been have thirty paid caddies cents The evidence disclosed were reasonably- to work, and'we think it is be inferred hour their club. 'Further- wage regulated a rule of the that such scale was boy by paid the the club was shown that the amount more, while it had charged against the member who ob- of the week was at the end reasonably inferred that services, think it is also to be tained his we club whether the ac- pay from the boy have received would not, in view of the testi- collected'or from the were count due member club, Manager Secretary mony Broyer, Mr. Assistant month, .once a against our up make accounts members our that “we ” they owe. try to collect what and we fallacy argument in -the of the Act show requirements If certificate plaintiff. permit employer of Blumeyer was the Blumeyer preserved would have plaintiff, where to duly issued been posted it he have so conspicuous place should in what file, it inspection of the State Indus- subject to might been have after his one or two hours Furthermore, if ? Inspector trial assigned as completed, had been had been service also filed.his member, that member should other caddy some engaged at all fact, ? In and, so, if where certificate, meaning Act, occupation within occupation gainful in a caddy less a 'while he none the he was caddy, and that of of, under the control caddy house assignment waiting for 220 Missouri accepting from, caddy instructions to his duties than master he was when actually-engaged in carrying bag clubs for some member on Accordingly 'the links. we agree are with the inclined Supreme conclusion of the Court California the Claremont (l. 398) Club case c. caddy, during that the fact that all the time actually when he was not a member, the service of un der the control of the club is determinative the matter and is unimportant that the service which happens renders nature be directed to contribute to pleasure the convenience and of the individual members of the club. n assigned by Blumeyer may Other errors upon not arise a retrial of the case. The Commissioner recommends, therefore, that judgment affirmed, defendant Hoffman be and-as defen dant. remanded, judgment reversed the cause however, against Hoffman, abeyance to be held until the controversy finally determined between and defendant Blumeyer, judgment thereupon and that completely be rendered dis ’ ’ parties the cause and all thereto. posing Merchants [Miners (Mo. v. Richards App.), Bank of Flat River S. W. 415.] . PER foregoing opinion CURIAMI:—The of Bennick,' adopted isC., opinion as the judgment the court. The of the circuit ac- court is cordingly affirmed Hoffman, as to defendant and reversed and re- *13 Blumeyer. Danes, J., J., manded to defendant P. and Nipper, concur; Becker, sitting. J., not co-partners Doing P. J. E.
C. C. Lawson, C. Lawson, Lawson and Longo P. as C. M. Sons, Business Respondents, Lawson Appellant.* Corporation, Company, Fruit July 6, Appeals. Opinion St. Louis Court of filed 1926. 1.—Customs and Usages Sales—Inspection—Pleading—Evidence—Waiver. — purchase price testimony In grapes, an action carload of are -that, goods shipped lading reference to a custom under a bill of shipper’s notify, agreement writing order under entitled “Standard Sale,” purchaser right inspection speci- Confirmation had no unless fically agreement purchase sale, contracted for in the held inadmis- pleading proof sible absence of under such contract that such right inspection part purchaser waived. Usages Inspection—Pleading—Evidence—Right 2.—Sales—Custo-m and Inspection that in inspection agreement — Acceptance. pleading proof of a custom before Absent inspection specifically right unless is to allowed contracted no sale, purchaser agreement purchase entitled to the written though acquiesced purchaser special acceptance before even .by lading shipper’s shipment made bill was to be notify. order