Thomas v. Shaw , 217 Ga. 688 ( 1962 )

Candler, Justice.

Thomas sued Shaw for a stated amount as damages. A general demurrer to his petition, challenging the sufficiency of its allegations to state a cause of action for the relief sought, was overruled, and the Court of Appeals reversed that ruling. Shaw v. Thomas, 105 Ga. App. 12 (123 SE2d 327). To review the judgment rendered by the Court of Appeals, this Court granted the writ of certiorari on Thomas’s application therefor. The petition in substance alleges: The parties were playing golf near the City of Albany. They were not members of the same foursome. Thomas was playing on fairway number five and Shaw on number four about 200’ yards away from where Thomas was standing. While Shaw was preparing to tee off, he saw, or in the exercise of ordinary care, could have seen Thomas, as there was nothing between them to obstruct his vision. When Shaw teed off, Thomas was within the range of his shot and his ball, instead of going straight as he intended for it to do, made a 45 degree turn in the direction of Thomas. Shaw’s ball was shot with great force — it struck the ground near Thomas and on the first bounce hit him in the left eye, inflicting a painful injury and a permanent 96% vision loss to the eye so injured. It is also alleged that Shaw, an inexpert player, after making his shot, saw or in the exercise of ordinary care should have seen, that his ball had hooked and was proceeding toward Thomas in time to have warned him, and Shaw had ample opportunity, had he been in the exercise of ordinary care, to call “fore” or give some other notice or warning to Thomas, and had Shaw done so, Thomas would have been notified of the danger in time to have avoided injury but Shaw failed to do so.

1. While it is tme, as contended, that golf players assume the risk of dangers ordinarily incident to the game, yet that rule does not apply or extend to a negligent act of a fellow-player; and this is true, since another player on the same course must always exercise ordinary care and diligence not to' injure him, and a failure to do so* is actionable notwithstanding the assumption-of-risk rule. See 65 C.J.S. 599, § 89, where it is said that “. . . a person driving a golf ball must give notice or warning to those dangerously situated.” As authority for this statement, the author cites cases from the highest courts in Kentucky, New York, North Carolina, and Virginia. An exception to the general rule that a golfer assumes the risk of dangers ordinarily incident to the game is unquestionably shown by the petition in this case, which in substance alleges that Shaw, after driving his ball, saw, or in the exercise of ordinaiy care should have seen, that his hooked ball was proceeding toward Thomas who was within its range; that Shaw failed to give Thomas any notice or warning of its approach; and that Thomas would have had time to avoid being injured had Shaw not been negligent in failing to notify or warn him of the approaching ball.

2. As against the general demurrer, we think that the allegations of the petition, which we have set out in our statement of the facts, are sufficient to state a cause of action for the relief sought. On proof of those allegations, a jury would be authorized to find that Shaw’s failure to' warn Thomas of impending danger was inexcusable negligence and therefore actionable. For like rulings, see the well-reasoned cases of Toohey v. Webster, 97 N.J. 545 (117 A 838, 839, 23 ALR 440); and Everett v. Goodwin, 201 N.C. 734 (161 SE 316). See also Rose v. Morris, 97 Ga. App. 764 (104 SE2d 485), where the petition alleged that Rose was injured when hit by a golf ball and that Morris, who was playing on the same course with him, was not negligent in failing to holler “fore” before teeing off. In that case Judge Gardner, in writing for the court, strongly intimated that a different holding would have been required had the petition contained an allegation of his failure to warn Rose of danger after seeing that the ball he had driven was going in Rose’s direction and there was a probability of it hitting him.

3. For the reasons stated in the two preceding divisions, it is held that the judgment rendered by the Court of Appeals.is erroneous.

Argued February 13, 1962 Decided February 20, 1962 Rehearing denied March 8,1962. H. G. Bawls, Farkas, Landau & Davis, for plaintiff in error. H. P. Burt, Burt .& Burt, contra.

Judgment reversed.

All the Justices concur, except Head, P. J., who dissents.