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HALE, by next friend, v. DAVIES et al.
33937.
Action for damages; from Walton Superior Court-- Judge West. November 12, 1951.
SUTTON, C. J.
The petition of a high-school football player against the coach and the high-school athletic association, a corporation, for injuries sustained while the plaintiff was participating in football practice, showed that the coach was employed and paid by the high school, but failed to show that he was an employee of the defendant athletic association or engaged in any business connected with that of the athletic association at the time the plaintiff was injured; and, where it appeared that the plaintiff, who was a normal boy, 16 years of age, and voluntarily a member of his high-school football team, must have realized the danger of such practice--and especially would this be true inasmuch as he was alleged to have been previously injured in football practice--and where it was not shown that the plaintiff protested or objected to engaging in practice when he received the injury complained of, or that the defendant coach committed a wilful or felonious tort against the plaintiff in directing him to engage in football practice, the petition failed to set out a cause of action against either defendant, and the court properly sustained the demurrers and dismissed the action.
James Thomas Hale, by his next friend, H. G. Hale, brought an action for damages against William H. Davies and the Monroe Athletic Association, a corporation. The plaintiff made substantially the following allegations in has petition: The defendant Davies was the football coach at Monroe High School in the months of August and September, 1949, and the defendant corporation was engaged in furnishing money for supplies and necessary equipment for the football team of said high school and in receiving money from the gate receipts of the team. The plaintiff was a student at the Monroe High School and was engaged in playing football under the auspices of the defendant corporation and under the direction of the defendant Davies, who was elected and probably paid by the authorities of the high school to coach the football team. Davies also became an employee of the defendant corporation for this purpose, because the defendant corporation was engaged in collecting and realizing money from the gate receipts when the football team played games, and collected admission charges from the public to see the games. The plaintiff was a player on said football team, and received as the only consideration for his services his expenses, when on the business of the football team, and an occasional sweater and letter designed to be placed on said sweater. The plaintiff's right arm and shoulder were injured while practicing football under the direction of the defendant Davies, on August 25, 1949. Davies was aware of the injury to the plaintiff's arm and shoulder, and of the fact that, on account of said injury, football practice would be dangerous for the plaintiff and apt to aggravate said injury and cause additional injury to the plaintiff's arm and shoulder. Regardless of his knowledge of the injury to the plaintiff's arm and shoulder, and although the plaintiff told him it was not well, Davies ordered the plaintiff to engage in football practice again on the afternoon of September 6, 1949, on which occasion the plaintiff, while engaged in football practice at Davies' direction, sustained an additional injury to his right arm, to wit: acromio-clavicular separation, right shoulder, which was the direct result of the plaintiff's trying to engage in football at Davies' direction when the plaintiff's right shoulder was in an injured and weakened condition. The plaintiff was then 16 years old, an inexperienced boy, without knowledge of the hazard of practicing football with his arm and shoulder in a weakened condition, resulting from the injury sustained in August, 1949. The defendant corporation is liable for the tort committed upon the plaintiff by the defendant Davies, in the manner aforesaid, for the reason that, at the time, Davies was acting in conjunction with said corporation as its servant, in the prosecution of its
business and within the scope of his employment. The plaintiff's damages, for pain and suffering and loss of future earnings, were laid at $12,000.
Both defendants demurred on the ground that the petition failed to set forth a cause of action, and the court sustained their demurrers.
The plaintiff's petition shows that he was a student at the Monroe High School and was a member of the football team of that school; that the defendant Davies was elected and paid by said school to coach the football team; and that the Monroe Athletic Association, the defendant corporation, was engaged in furnishing money for supplies and necessary equipment for the football team and in receiving money from the gate receipts of said team. It can be inferred from the petition that the plaintiff voluntarily became a member of the football team, as he was not paid for playing, and there was no requirement by the school that he should engage in such game. He was 16 years of age and, in the absence of an allegation to the contrary, was a normal boy and of average intelligence for that age, and no doubt knew and realized that football is a rough and hazardous game and that anyone playing or practicing such game may be injured. A person of his age is presumed to be capable of realizing danger and of exercising caution to avoid it. Presumptively, he would be chargeable with the same degree of care in this respect as an adult. Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558 (1) (94 S. E. 821); Central R. & Bkg. Co. v. Phillips, 91 Ga. 526 (2) (17 S. E. 952).
The plaintiff's right shoulder and arm were injured while he was practicing football with the team on August 25, 1949, but he makes no complaint against Davies or anyone else on account of those injuries, although he was practicing under the direction of Coach Davies when he was first injured; and, after that injury, he certainly should have realized more than ever the danger and perils of the game. But he again engaged in football practice on September 6, 1949, and while so engaged received an additional injury to his right arm. The plaintiff's being a member of and playing on the high-school football team was a voluntary act or endeavor on his part, and it does not appear that he made any objection or entered any protest to engaging in the practice of the team on the afternoon of September 6, 1949, when he received the injury complained of. So far as the petition shows, he could have either engaged in the practice or declined to do so.
It is a matter of common knowledge that practically all grammar and high schools have playgrounds near or adjacent to their buildings, where the students play baseball, football, basketball, etc., and it is also well known that students playing or practicing such games may injure themselves or each other, and that this may happen although the ones in charge of or supervising such games may have exercised all reasonable precaution to prevent such injuries from occurring. We think it sound and reasonable to say that a student, a normal boy of the age of the plaintiff in this case, who engages in practicing or playing football assumes or takes the risk of being injured while so engaged; and that the coach or supervisor of the game would not be liable under the facts as stated in the present petition. The petition here does not show any felonious or wilful tort on the part of the defendants against the plaintiff.
Although the plaintiff was a member of the high-school football team, he could not have maintained an action against the school for an injury received while practicing or playing on its football team. "Since the physical education and training of school children of elementary and high school grades, including physical or gymnastic exercises, athletics, physical games, sports, and the like, are generally considered a governmental function, inasmuch as the physical development of children is as important for good citizenship as their mental development, it is the general rule that school districts, school boards, and other agencies or authorities in charge of public schools enjoy immunity from tort liability for personal injuries or death sustained by pupils or other persons in connection therewith, in the absence of a legislative enactment to the contrary, at least where only negligence was involved." 160 A. L. R. 178. It is conceded by the plaintiff that he could not have maintained an action against the school as such.
The petition shows that Davies was employed and paid by the school to coach the football team, but the allegations of the petition are not sufficient to show that he was employed by the athletic association. That association was engaged in furnishing money for supplies and necessary equipment for the football team and in receiving money from the gate receipts of said team. In other words, the business of the athletic association appears to have been only that of an agent for the collection and disbursement of the admission fees received from spectators at games played by the team. The allegations of the petition fail to show that the coach was engaged in any business connected with that of the athletic association at the time the plaintiff was injured. The relationship of master and servant, or employer and employee, did not exist between the defendant corporation and Davies, nor did such relationship exist between Davies and the plaintiff.
However, it is argued by the plaintiff in error in his brief that Davies occupied the position of one standing in loco parentis toward the plaintiff. We do not think that the petition is subject to a construction as showing such a relationship; but, conceding that it could be properly so construed, still the plaintiff could not maintain the present action, which purports to be based only on simple negligence. Chastain v. Chastain, 50 Ga. App. 241 (177 S. E. 828); 67 C. J. S. 787, Parent and Child, 61 (b) (2).
The petition failed to set out a cause of action against either defendant, and the trial judge properly sustained the demurrers and dismissed the action.
Judgment affirmed. Felton and Worrill, JJ., concur.
D. M. Pollock, A. M. Kelly, for defendants.
J. C. Knox, Quillian, Quillian & Thomas, for plaintiff.
DECIDED MAY 9, 1952.
Saturday May 23 04:46 EDT


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