If colliding with a law officer weren't misfortune enough,
Ms. Ross was forced to give up golf as she could no longer play without pain.
Seeking recovery for her injuries, Ms. Ross was confronted
with her home state of Michigan's "no fault" law, which largely abolishes tort
liability except when "the injured person has suffered a serious impairment of
body function." Under Michigan law "a serious impairment of body function" can
be deemed to occur when the impairment "affects the person's general ability to
lead his or her normal life."
Ms. Ross's legal goal, therefore, was to convince a court
that the removal of golf from her life constituted a sufficient deprivation
that she should be permitted to pursue a claim for damages. Unfortunately for Ms. Ross, the lower court
judge showed little sympathy. As he stated, in dismissing her case,
"The fact that she has chosen to abandon golf because of
some minor pain is her choice. It doesn't appear to me that she couldn't play
golf. It appears that she doesn't want to go through any kind of additional
pain, and if she had such serious pain, I think she would require a lot more
therapy, she would be on pain pills, she would be on cold compress, I'd hear a
whole lot more, and I'm not."
Ms. Ross appealed the decision, and, last week, the Michigan
Court of Appeals, by a 2-1 vote, overruled the lower court and reinstated Ms.
Ross's claim. In the majority opinion, the court explained that the lower
court's job was not to assess Ms. Ross's tolerance for pain, because, by doing
so, he effectively was deciding whether she was, in fact, impaired. Such a
factual question was for the jury, not the judge, to decide. Accordingly, the
Court of Appeals sent the case back for trial.
A dissenting opinion, written by the Honorable Kurtis T.
Wilder, expressed a different view. According to Judge Wilde, before the
accident, Ms. Ross only played golf approximately once a month during the
summer months, or, as he characterized it, "a handful of times per year." Such
a loss, in his view, was insufficient to destroy her "general ability to
lead....her normal life." Judge Wilder distinguished Ms. Ross's situation from an
earlier case where, due to injuries, a golfer who played 2-3 times a week, was
no longer able to do so.
As noted, Judge Wilder expressed the dissenting view. The
majority of the court, therefore, has concluded that golf, even in small
quantities, is an important component of a normal life. Something that all of
us knew already.
The earlier 2012 charges, filed in Montana, arose out of his
failure to pony up for an ace made at a charity event in Missoula.
The recent Washington charges were brought by the state's
Insurance Commissioner based on allegations of a history of bad acts in the
state. The Commissioner's office issued a
press release, asserting the following litany of offenses:
For whatever reason, clients continue to pay Kolenda's
company premiums, while he continues to face accusations of not making
payments. Good work, if you can get it, though presumably the legal fees for
the defense of criminal actions must take a big bite out of the bottom line.
Since Barack Obama has occupied the White House, the "other
team" routinely has challenged his job dedication by keeping track of his golf
rounds.
Well, given the shoe now is on the other foot, with a Bain
Capital, class warfare golf angle. Among the litany of Bain-under-Romney
stories is one now circulating that describes what transpired at Dade Behring
after the company was acquired by Bain. As described by human resources manager
Cindy Hewitt,
In the summer of 1998, amid mass layoffs and mandatory
overtime at the Dade East plant, she saw workers crowded around a glass
executive suite. Some shook their heads and walked away, and others just stood
there staring, she recalled. She walked over to check out what was going on and
found several department heads putting golf balls in the office.
"Here are these people whose lives are upside down, doing
mandatory overtime, and the executives are playing golf where all the employees
can see," Hewitt said. "I was so upset that I walked in and picked up a golf
ball and said, 'Get out and go to the golf course if you don't have anything to
do.' It was the most callous, insensitive thing I had ever witnessed. I was
completely dumbfounded."
Hewitt said the golf putting incident was so traumatizing
for her that she quit her job the following month...
In case you haven't realized it, it's going to be a long,
painful slog until the first Tuesday in November.
The shoe store model has been successfully utilized in the
golf world. As the theory goes, the concentration of golf courses in meccas
such as Arizona and Myrtle Beach will serve to attract a disproportionately
larger audience than will a single course left to market itself in isolation.
The courses then compete among each other for market share.
Similarly, golf equipment manufacturers collectively embrace
the latest innovations, as the changes will influence golfers to deem their
current equipment obsolete, in favor of the latest and greatest. Companies will
then pitch their specific versions of the new fad to the universe of equipment
shoppers.
More recently, the internet age has brought the shoe store
model to the world of tee times. Golf course owners, recognizing that they
share the common issue of unused inventory (i.e., tee times) are collectively
reaching a broader audience by participating in online tee time websites,
thereby enabling golfers to undertake one stop shopping for tee times that fit their
price and schedule parameters. Civilized competition among the collaborators
then takes hold, based on pricing and the number of slot made available to the
internet shoppers.
Below the surface, however, conflict and legal issues have
arisen that are not often associated with the shoe store model of collaboration
/ competition. While course owners may recognize the value (or necessity)
presented by participating in online tee services, many are unhappy with the
direct and indirect costs required to participate with the larger, national
providers of such services. They also fear that the discounted pricing for tee
times presented online will create in the public's eye that a course's value is
only as good as the low internet price.
Several months ago, when the PGA of America was on the verge
of entering into a relationship with GolfNow , the largest provider of online
tee times, substantial push back emerged from course owners, resulting in the
National Golf Owners Association of America issuing recommended best practices
for the provision of these services. Additionally, course owners that are
geographically proximate in some cases have bypassed the commercial vendors,
creating collaborative associations to offer the services, seeking to provide
sufficient critical mass to attract golfers' attention without the heavy tolls
they believe are exacted by the outside vendors.
Most recently, the online tee time world has been filled
with news about the federal court action brought against GolfNow by another provider,
EZLinks. EZLinks claims that GolfNow engaged in unfair competition by hiring a
former EZLinks employee who then unlawfully downloaded proprietary software
from EZLinks' computers. As this litigation unfolds, it will provide ongoing
insight into the powerful market forces driving this newest example of the shoe
store model of collaboration / competition.
Last week the course received recognition of a different kind, as the Connecticut Appellate Court issued an advance of its opinion in Kelley v. Five S. Group, LLC, ruling on a controversy that exists between the developer / operator of the course and the owners of the land on which it was constructed.
In 2005, a company consisting of members of the Shepard family engaged the services of John Kelley to build and operate a golf course on Shepard property. Preliminary discussions between Kelley and the point person for Shepard family contemplated that Kelley would contribute his labor for no fee, the family would contribute the land, and the two parties would share the operating expenses and profits equally. The arrangement was to last for thirty years, at the end of which Kelley would receive a $1.5 million payment.
By the time the arrangement was formalized, however, Kelley's entitlement to the back end $1.5 million payment had disappeared from the written contract documents. Although claiming that he signed the documents unaware of the provision's absence, Kelley acknowledges that he became aware in 2000 that he had no contract right to the $1.5 million. Nonetheless, he continued to operate the course, with the two parties each taking out approximately $100,000 per year.
Ten years later, in 2010, Kelley filed suit, advancing several legal theories designed to enable him to capture the $1.5 million back end payment that never made its way into the contract, essentially arguing that it would be unjust to deprive him of that sum.
The trial court, looking to the documents the parties signed, rejected Kelley's argument, and the Connecticut Appellate Court agreed, holding that "the record as a whole convincingly demonstrates that the trial court properly determined that the plaintiff failed to establish the requisite factual underpinning for his claim that the defendant was unjustly enriched by the plaintiff's design and construction of a golf course."
The obvious lesson: "A handshake is only as good as the paper on which it is written."
]]>With springtime golf season embracing all of the country, now seems an appropriate opportunity to remind the truly hard core that too much golf can be detrimental to a stable home life. Excerpts from two divorce cases provide a cautionary tale.
From Missouri, we learn about the marriage ending frustrations of Mr. and Mrs. Frank during the late 1940′s:
"Plaintiff liked to play golf and it was his practice to engage in that sport twice a week during the golfing season. He would play on Saturday and Sunday afternoons. Defendant objected to plaintiff playing golf, contending that he should stay home on those occasions. The final separation resulted from a quarrel with respect to plaintiff's participation in a golf tournament at St. Joseph, Missouri. He stated that when he was preparing to leave for this tournament his wife told him: "If you leave here now, don't ever come back." He further testified that he then advised her, "I am going to go anyway." He testified: "So I started packing my clothes and as I packed them in the suit case she would take them and throw them on the floor and I would put them back in the suit case, and that went on a couple of times and she picked up a screwdriver, which I had been using for home repairs, which had been lying out in the open, and she picked it up in a menacing manner, as if to stab me. I dropped my clothes and took it away from her and in the course of the struggle she bit me on the forearm. * * * Then she turned loose of the screwdriver. I took it away. As a matter of fact, I took it with me to prevent her from using it again, and packed my clothes and left. * * * I went out and spent the night at my mother's, and the next morning I left for St. Joseph." Frank v. Frank, 238 S.W.2d 912 (Mo. App.1951)
However, the Frank residence appears positively tame compared to the drama of the Ross family in Polk County, Iowa, in the Roaring '20′s:
As Mr. Ross testified about his wife, "she was profane and abusive toward me, and called me vile names. Her pet name for me was son of a bitch, which she emphasized occasionally with swear words." He further testified that "he played golf three or four different times against his wife's protest, and on one occasion, when he went out to play golf with his brother on Sunday, when he got home she said, 'God damn you, why don't you stay around home instead of going out to play golf on Sunday'; that, when he complained about her not waiting for him when he was late to his meals, and said he did not like cold food, she said he could eat down town, and swore about it, and threw a butcher knife at him. He testified that she was crying and mad; that she was that way most of the time; that one Sunday, when he had gone out to play golf, and got back about 12 o'clock, she did not want to get any dinner; said if he could go out and play golf she would be damned if she would work; and she did not get him any dinner; that he then walked down to the river, and when he came back she was lying undressed on the kitchen floor, with all of the gas burner turned on...[and that when it happened again] he said, 'I told her if she wanted to commit suicide there was no need of blowing up the house.'" Ross v. Ross, 216 N.W. 22 (Iowa 1927)
Everyone, enjoy the wonderful weather, hit 'em straight, and don't forget your loved ones at home.
]]>From a legal standpoint, one would be hard pressed to argue Ms. Rometty's membership exclusion is unlawful. Private clubs and organizations may limit their memberships on the basis of gender, race, religion and other criteria. Indeed, many people would agree that it is appropriate for a group of men to share a weekly poker game, for women executives to network among themselves, and for Lithuanian-Americans to perpetuate their culture. Largely, the public accepts the existence of closed memberships when they are viewed as providing opportunities to foster positive aspects of member identity.
However, when organizations are viewed as promoting exclusion, public perception of their acceptability changes. A country club that largely limits its membership to white, Christian males finds it difficult to offer as a rationale that its motivation is to beneficially enhance the racial, religious or gender identity of its membership.
While lawful, a private club's discriminatory membership policy may come with a price. For example, last December, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States sanctioned a federal bankruptcy judge for maintaining membership in a private club that denied membership to women and African-Americans. The judge was found to have violated the Code of Conduct for federal judges, which provides that "a judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin."
Similarly, golf's governing bodies--including the PGA Tour, the PGA of America, the USGA and the LPGA--have policies that prevent them from hosting events at clubs with discriminatory membership policies.
Viewed in this context, it is not surprising that Augusta National finds its membership policies the target of criticism. By hosting the Masters, the club creates a public spectacle without making itself a public facility.
Just as the club lives with this conflict, so do those of us who partake--some would say enable--by watching, playing, networking and marketing the tournament. We enjoy the spectacle, while professing discomfort about the club's membership policy.
]]>The complaint alleges that Golf Galaxy opted to sponsor a Women's Night event, where, for a two hour period on April 20, the store provided "exclusive offers on merchandise, free $10 Golf Galaxy gift cards, fee goodie bags, access to on-sitemanufacturer representatives from major golf equipment brands, signature Paula Creamer adidasgolf shoe giveaway, chances to win a Nike Karma 12-ball pack when demonstrating a golf club, giftcard raffles, gifts with purchase, refreshments, 'and chances to win (1) a Nike Golf "Head-to-ToePackage' including golf clothing, shoes, and balls, (2) a Taylor Made 'Head-to-Toe Package'including golf clothing, clubs, bag, and balls, and (3) a set of Adams Golf clubs."
According to the complaint, Golf Galaxy prevented men from shopping at the store during this two hour period, unless they were husbands of women attending the event. Thus, as the complaint asserts, "female millionaires such as Nancy Pelosi or Sarah Palin would have been allowed into Golf Galaxy's stores and provided with the gift cards, gifts, refreshments, andopportunities to win thousands of dollars worth of merchandise, while male consumers, who mayComplaint for Injunctive Relief and have recently lost their jobs, would have been denied entry in Golf Galaxy."
The lawsuit invokes California's Unruh Act, which prohibits discrimination on the basis of sex or marital status.
The last time we encountered the attorney representing plaintiffs, he had filed a similar action alleging sex discrimination against Eagle Vines Vineyards & Golf Club arising out of slightly discounted greens fees offered to women on Ladies Day. That posting generated substantial discussion among readers concerning issues of gender equality, and the propriety-regardless of the substantive merit of the allegations-of subjecting the golf club to litigation. (Parenthetically, the plaintiff in the Eagle Vines lawsuit, Steven Frye, is one of the plaintiffs in the new Golf Galaxy lawsuit.)
The Golf Galaxy and Eagle Vines lawsuits present an interesting juxtaposition to the current Augusta National controversy surrounding the membership non-invitation to Ginnie Rometty. Augusta National's departure from its established precedent of granting green jacket status to the reigning IBM Chief Executive Officer suggests a current determination to maintain a gender discriminatory membership policy.
From a legal standpoint, judicial decisions--based on constitutional principles that guarantee rights of free association--permit private clubs to slice and dice their membership rolls pretty much as they please. Similarly, various statutes prohibit sex-based discrimination in public facilities. Whatever the underlying legal arguments that allow for disparate treatment, there is an inescapable irony to the way our legal system and society permit the debasing exclusion of women from private clubs, while subjecting clubs such as Eagle Vines and retailers such as Golf Galaxy to judicial sanction for modest attempts to further the interests of women in golf.
]]>In 2009 Robert and Katherine Brady purchased a home in Hamilton, Montana. The home, which was built in 2005, has the good or bad fortune (depending on whether one aspires to be a seller of used golf balls), to border the 18th hole of the public Hamilton Golf Club. By their reckoning, the Brady homestead serves as the landing area for 1300 sliced golf balls per year.
In October 2011, Attorney Alex Beal, on behalf of Mr. and Mrs. Brady, sent an impassioned letter to the Hamilton Golf Course Board of Directors and the Board of County Commissioners. Attorney Beal explained that the incoming golf balls "routinely hit the house and roof, breaking windows, denting and warping window frames, hitting vehicles in the driveway (to do this they have to clear the house first), nearly hitting multiple contractors, the Bradys, and their guests, and generally depriving the Bradys of the use of their property."
Confronting the troublesome fact that Mr. and Mrs. Brady elected to purchase their home cognizant of its location, Attorney Beal, characterizing the condition as "potentially lethal," offered a survey of case decisions that ostensibly supported his argument that remedial steps should be taken. Suggesting that "there are no viable defenses to your liability," Attorney Beal stated that, absent satisfactory corrective action, "you should expect to be served with a complaint seeking to enjoin the use of the 18th hole as well as for damages." Choosing an interesting metaphor, Attorney Beal concluded with an admonition that "the ball is now in your court."
When no satisfactory solution was forthcoming, the Bradys and their counsel followed through with their promise, filing suit. As part of their legal action, they sought a temporary injunction to shut down or modify the 18th hole.
The plaintiffs' asserted belief that "there are no viable defenses to liability" proved not to be shared by the judge. Faced with the fact that the 18th hole had been around for 25 years before the Bradys' home was built, District Judge James Haynes concluded that concluded that the likelihood that the Bradys will win the nuisance part of the lawsuit is low, and denied the request for an injunction..
Judge Haynes observed that Mr. Brady, a former contractor, and Mrs. Brady, a former real estate agent, should have known to make inquiry about the status of incoming golf balls. He also observed that the Bradys can reduce the risk of injury by installing netting screens near the home.
The injunction proceeding was a preliminary matter, so the case will continue to work toward an ultimate trial. For now, however, those playing at Hamilton Golf Club will be able to play more than 17 holes. and the Bradys can defray their legal costs and the installation of netting by selling used golf balls per year on Ebay.
]]>Golfers at Meadow Creed Golf Club in Dracut, Massachusetts may soon qualify for a walking program that exceeds what the USGA envisoned.
Meadow Creek does not own the parking lot that services the club. Rather, it leases the parking lot from Realty Financial Partners, a real estate investment firm located in nearby Wellesley. It seems as though the golf club is several months behind in its rent payments to the landlord. In response, the landlord has installed barriers that block access to the parking lot.
This past week, the club owner, having unsuccessfully attempted to involve town officials in a landlord-tenant manner, sought judicial relief. Last Thursday, a Superior Court judge, after hearing argument, took the matter under advisement.
With Meadow Creek scheduled to open on April 1, the club needs to hope for a favorable judicial decision, or a successful negotiation of its differences with the landlord.
The USGA Walking Program contemplates golfers driving to the course and walking while they play. Conversely, Meadow Creek golfers face the prospect of walking to the course and riding while they play. Will they qualify as honorary members of the USGA Walking Program? At least they should get a special bag tag.
]]>The website for Mission Del Lago golf course, owned by the city of San Antonio, describes the course as "a wonderful layout that all golfers will appreciate. Located south of San Antonio near Mitchell Lake, we are proud to offer a full service golf facility at this location. Mission Del Lago features 18 holes of golf, a large practice green, and a driving range."
Attorneys for the city might want to consider modifications to the website description in light of recent events. Not only is the course "near Mitchell Lake," it's also a stone's throw-or a fired bullet-from the "A Place to Shoot" shooting range and gun shop.
Not only does the golf course feature the "18 holes of golf, a large practice green, and a driving range" touted by its website, but it also offers incoming projectiles from its neighbor to the west. At least that's the allegation contained in a lawsuit filed by the golf course management company against the shooting range.
On March 4, Justin Flores was playing the 12th hole at Mission Del Lago when, according to published reports, "he felt a sudden, burning pain in his chest." As Flores described it, "I thought I got hit with a golf ball. I saw a little bit of smoke coming out of my chest." Upon looking closer, Flores was confronted with a protruding bullet that had lodged in his sternum. Said Flores, "it kind of freaked me out." What a surprise.
At the time, A Place to Shoot denied responsibility, suggesting, perhaps, that someone hunting a feral hog (Augusta, this is not) may have been the shooter. However, nine days later, it happened again, as golfers reported a bullet whizzing over their heads. A Place to Shoot responded by closing its rifle range.
While Mission Del Lago may wish to make certain changes to its website description, we certainly agree with the statement that course features "make it a unique experience that you won't find anywhere else on the Alamo City Golf Trail."
]]>Rather than subjecting the dispute to the uncertainties of the judicial process, the town has negotiated agreements for lower property valuations, in exchange for agreements by the clubs to preserve the courses as open space. Additionally, if the clubs decide to sell the property, the town will have a right of first refusal to purchase. The obvious benefit for the town is the ability to prevent the golf courses from being developed for residential and/or commercial purposes.
The town first entered into such arrangements a year ago with the Country Club of Darien and Wee Burn Country Club.
Recently, the town reached agreement with Woodway Country Club. The agreement resolved a four year lawsuit. The resolution provides for a retroactive reduction in assessment of $1.9 million, which translates into tax savings for the club. The town also has agreed, going forward, to value the property as open space, rather than land subject to development. In exchange for these benefits, the club has committed to using the land as a golf course or open space for the next thirty years, and the town will have a forty year right of first refusal.
Darien's approach to the assessment issue reflects a recognition of the impact that recent economic circumstances have had on valuations and financial burdens faced by clubs. While accommodating these circumstances, the town has taken steps to preserve the community from overdevelopment for the ensuing decades.
Other communities and golf courses may wish to consider the Darien model as an alternative to legal battles over valuation issues.
]]>Their offense? According to former Hermitage member Thomas Talbot, the defendants defamed him and damaged his reputation by, ready for this, lowering his handicap.
Unlike the crazies buying equipment and contorting bodies as directed by instructional magazines, Mr. Talbot apparently does not aspire to lower scores. To the contrary, he claims that, by providing him with a 7.7 stroke reduction in handicap over five years, the defendants effectively were branding him a cheat. The 10 million pounds he seeks as damages should go a long way toward restoring his reputation. He could also pay for a few golf lessons, and further lower the handicap.
I take personal pleasure that the saga of Mr. Talbot has led me to a kindred spirit in Ireland, Attorney Larry Fenelon. Addressing the costs of this litigation debacle-500,000 pounds to the defendants-Attorney Fenelon observed how clubs would benefit from the inclusion of a mediation and/or arbitration provision in their governing documents. According to Attorney Fenelon, any club leader
"should check themselves if they are thinking 'this could never happen to us'. It can, it does and it may. The key ingredients are (i) an aggrieved principled person and (ii) a haphazard dispute resolution process. The prevention is so simple, so quick and so utterly cost effective. It's a no brainer."
Meanwhile, we'll stay tuned, anxiously awaiting the court's decision. ]]>Ostensibly with this in mind, the Farmers Branch Planning and Zoning Commission decided that ordinances designed to preserve the views were worthy of municipal attention. Thus, P&Z has proposed two ordinances. One would prohibit the location of accessory buildings and garages closer than 15 feet from the Brookhaven property line. The other would require that boundary fences be made of black decorative metal and be 75 percent transparent. With these ordinances enacted, residents-including those adjacent to homes with accessory buildings and fences-would have largely unimpeded views.
While apparently most of the residents favor these ordinances, the world being what it is, objections have been made. Some, rather than view the proposals as benefiting the residents, see them as promoting Brookhaven, at the expense of their property rights. One, a tea partier perhaps, proclaimed that "this is too much government say over properties."
Another, viewing safety as the major concern, explained that the ordinances would lead to "more invasion of golfers retrieving their golf balls + home damage...We have had at least 16 instances of damage." , including the right to erect a privacy fence. "
And, my favorite, expressing the unspoken sentiment of many, cut to the heart of the matter: "Many of the times while we are in the back yard we have seen golfers lean up against a tree and use the bathroom, that is not a pretty view."
Perhaps if the ordinances were revised to provide that the accessory buildings could include Porta-Johns, all would be in agreement.
]]>Ordinarily, I would avoid commenting about the personal misfortune suffered by a golfer who was impaled by the shaft of a broken club, especially when the man's femoral artery was ruptured. However, reports are that the man is out of the hospital and recuperating, presenting an opportunity to drive home a point of golf etiquette.
Point of Etiquette: Slower players should let faster players play through.
Ancillary point: Violations do not warrant physical assault.
To be fair, the events that occurred at Fort Worth's Resort on Eagle Mountain Lake remain murky. A spokesman for the Sheriff's Department stated that two groups of golfers converged on the 13th tee. The second group (a threesome) asked the first group (a foursome) if they could play through. Presumably, the answer was "no" (or something to that effect), because a fight broke out, a club was broken, and-according to the spokesman- "the shaft end of the golf club became impaled into the groin area of one of the men." Ouch.
Before firing up the judicial machinery, however, please note that the cause of the injury remains under investigation. Apparently, the person calling 911 for assistance stated that the man had fallen onto the club. I wonder if the caller was a member of the foursome or the threesome????
The incident reminds me of a legal case I once read about. The North Carolina Supreme Court's decision in Everett v. Goodwin, 201 N.C. 734 (1931) describes what happened:
"The plaintiff and his companion [Mr. Elkins], playing what is called a twosome, began their game, and, before they had proceeded very far, the defendant Goodwin, with two companions came upon the course and began playing a threesome behind the plaintiff.
Plaintiff testified as follows: "As we were starting on the fifth hole I drove, and Mr. Elkins then drove, and I got a bad drive on my first ball, which did not go any further than from here to the door back there, and I went out and was preparing to drive again and as I did I looked around and Mr. Goodwin was getting ready to drive his ball off and was swinging, and I hollered, 'Look out, don't drive this way,' and as he drove, the ball went over my head and he hollered and said, 'Get out of the way."
Plaintiff further testified that the defendant and his companions were driving balls in and about him and his companion from the fifth hole up to the fourteenth. The occurrence at the fourteenth hole is narrated by the plaintiff as follows: "They were right there on the tee with us when we finished, and as soon as we would put our ball down and drive off before we had gone more than fifty feet they would have their ball down starting to drive it without any warning whatsoever. In fact, they were so close to us that we did not walk down the middle of the fairway for fear they would hit us. They would drive just immediately after we drove our ball.
As we reached the sixteenth tee and Mr. Elkins made his drive, and I made my drive, as I stepped off, a couple of them, I do not know just which it was that had the ball already teed up ready to swat it, I walked over the edge of the fairway in the rough and I had not gone more than fifteen feet when they had driven their ball and Mr. Goodwin put his ball up to drive and he was drawing back to hit it, and I made the remark, "You are liable to hit me.' I made it loud enough for all to hear. I said, "Better get out of the way, he is liable to hit us,' and I got off the fairway on the edge of the rough, and when I did he drove the ball and the ball hit me on this knee-cap and as it hit me on the knee it knocked me off both feet on the ground and I immediately got up as quick as I could and I said, 'I believe it broke my leg.' Mr. Goodwin walked down there and said he didn't think it was broken and didn't think it was hurt much."
Confronted with these less than favorable facts, the defendant made the rather ingenious argument that he was not hitting into a twosome because the two groups had merged into a fivesome and therefore the rules of engagement were different, as accidents among groups sometimes happen. The jury, however, didn't buy the argument and the Supreme Court refused to second guess the jury. However, the court could not resist one final salvo:
Defendant testified that the parties merged into a five-some from the fifth to the sixteenth hole, and between these said holes the game proceeded "strictly according to honors." This is explained to mean that "the man who makes the lowest score is the man who has the honor of making the first play at the next hole." It does not appear who the "honor" man was at the sixteenth hole, but it is clear that the plaintiff had the "honor" of having his knee cap broken by a ball driven by the defendant, and it is obvious that thereafter all "honors" ceased.
]]>