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GETZ v. FREED (05/24/54)

May 24, 1954

GETZ
v.
FREED, APPELLANT



Appeal, No. 93, Jan. T., 1954, from judgment of Court of Common Pleas No. 1 of Philadelphia County, June T., 1952, No. 6793, in case of Charles Getz v. Claude L. Freed. Judgment affirmed.

COUNSEL

Joseph W. Henderson, with him Harrison G. Kildare and Rawle & Henderson, for appellant.

John J. Dautrich, with him White, Williams & Scott, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 377 Pa. Page 481]

OPINION BY MR. JUSTICE BELL

Plaintiff recovered a verdict in the sum of $5,000. Defendant's motion for judgment non obstante veredicto and for a new trial was dismissed, and from a judgment entered on the verdict defendant has taken this appeal.

On September 8, 1951 plaintiff, defendant and two other men played a (golf) foursome at the Lebanon Country Club. After completing 18 holes they decided to play a few more holes, and no caddy being available they carried their own bags. Defendant, having the highest score on the 18th hole, was the last to drive on the Number 1 or 19th hole. Defendant "hooked" his first drive out of bounds -- a distance of approximately 30 to 35 yards over a low stone wall which formed a parallel boundary line approximately 30 feet to the left of the fairway. Defendant naturally played

[ 377 Pa. Page 482]

    a second drive -- another very bad shot, which rolled about 40 yards from the tee into the fairway. Plaintiff and his partner offered to look for and pick up defendant's first ball. Defendant turned on the tee as if to walk over to his bag and plaintiff and his partner walked off the tee to find defendant's first ball. Neither plaintiff nor his partner paid any further attention to the defendant, but walked toward the boundary line. When they had reached the stone wall at approximately the place where defendant's first drive had gone out of bounds plaintiff heard someone call "Look out, Charlie." At about the same split second plaintiff was hit on the back of the head by a ball which defendant had just driven from the tee. It is obvious that defendant violated a rule of the game and a custom known to all golfers, namely, he had to play his second drive and was not permitted to drive a third ball. Defendant contends that plaintiff assumed the risks of the game and likewise that he was guilty of contributory negligence in failing to watch alertly for defendant's next shot. Defendant admittedly gave no notice or warning of his intention to play a third ball from that tee. Under all the facts in this case defendant's contentions of assumption of risk and contributory negligence are devoid of merit.

A person who plays golf assumes some risks of the game. Cf. Benjamin v. Nernberg, 102 Pa. Superior Ct. 471, 157 A. 10; Douglas v. Converse, 248 Pa. 232, 93 A. 955. For example, he knows that every star sometimes, and every "dub" oftentimes, hooks or slices, and that when he is playing on a parallel hole or on a paralleled area of ground he may be struck by a wild shot. He also knows that if his opponent or partner discovers his ball is out of bounds and returns to replay the shot and he intentionally remains within the orbit or possible orbit of the replayed shot, he risks

[ 377 Pa. Page 483]

    being hit and injured. While few players know all the rules of golf, there are three rules and customs which all golfers know: (1) It is the duty of every player to give timely and adequate warning -- usually by the word "fore" -- of a shot which he is about to make and which he has reasonable grounds to believe may strike another player, caddy or spectator, either on the same hole or on a different hole -- see Brusis v. Henkels, 376 Pa. 226, 230, 102 A.2d 146; (2) a player assumes the risk or is guilty of contributory negligence and want of due care if he intentionally or carelessly walks ahead of or stands within the orbit of the shot of a ...


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