Opinion
37898.
DECIDED OCTOBER 15, 1959. REHEARING DENIED OCTOBER 27, 1959.
Action for damages. Fulton Superior Court. Before Judge Pye. July 10, 1959.
Cook, Llop Long, Nick Long, Jr., Barrett Hayes, Ellis Barrett, for plaintiff in error.
Greene, Neely, Buckley DeRieux, Ferdinand Buckley, Wm. C. Rimmer, contra.
The court did not err in sustaining the general and special demurrers of the two demurring defendants and in dismissing the action as to them.
DECIDED OCTOBER 15, 1959 — REHEARING DENIED OCTOBER 27, 1959.
The plaintiff instituted an action for damages against Paul Jones, Don McIntyre and Sterling (Dizzy) Davis to recover damages for personal injuries allegedly due to the negligence of the defendants. The petition, omitting jurisdictional averments and allegations as to the nature of the plaintiff's injuries, alleged that Paul Jones and Don McIntyre operate as a partnership in promoting wrestling bouts in Atlanta, Georgia; that Jones promotes the said matches, assisted by McIntyre, and that in addition McIntyre is a professional wrestler; that Dizzy Davis is also a professional wrestler and on May 21, 1955, he and McIntyre were engaged in a professional wrestling match in the Atlanta City Auditorium. Petitioner is the official time keeper, appointed by the City of Atlanta Athletic Commission, and as such he is required to sit at the right of the ringside as you enter the auditorium. The City of Atlanta places at the ringside a table approximately three feet wide and five feet long directly against the ring, and there are three seats, which are bolted together, one seat for the time keeper, one seat for the doctor, and one seat for the secretary of the Atlanta Athletic Commission. Entering from Courtland Street, the petitioner's seat was the first seat at the table in section "D" of the auditorium. The defendants Jones and McIntyre, operating as a partnership, hired Dizzy Davis to wrestle with McIntyre. Petitioner alleges that bad temper is often employed in wrestling bouts and it is a highly competitive sport. All the defendants knew or know that petitioner was the time keeper appointed for said bouts by the Atlanta Athletic Commission; that the table at which petitioner was forced to sit to perform this duty was located immediately next to the ring; that the three seats were bolted together and that it was dangerous for a wrestler to dive through the ropes from the ring at this point. At the time and place alleged, the plaintiff was performing his official duties as time keeper for the wrestling bout between McIntyre and Dizzy Davis. After the bout had been in progress for several minutes, McIntyre appeared to be violently mad and at that instant the defendant Davis backed into the corner to the left of the plaintiff, and the defendant McIntyre had a ferocious look on his face and was crouched animal-like as he pressed forward to get to defendant Davis who was backed in the corner. At that instant the defendant McIntyre had the defendant Davis hemmed in the corner, and in order to avoid and escape the vicious approach by Don McIntyre, the defendant Davis lunged by the defendant McIntyre, ran approximately 10 feet from the corner and dived head first, through the air, between the top and second rope, hurling himself on top of the plaintiff, who was still seated at the table. The violent impact of defendant Davis' body against the plaintiff inflicted upon him enumerated serious, painful and permanent injuries. "At all times during the wrestling match set out herein, the said Sterling (Dizzy) Davis was an agent of the defendants Paul Jones and Don McIntyre, was employed to wrestle in the match, and was engaged in the furtherance and scope of the business of the defendants Don McIntyre and Paul Jones. . . Plaintiff has been a time keeper at wrestling matches for a period of several years and in all of his experience he has never known a time keeper to be injured by sitting at his table as described herein by reason of a wrestler jumping, diving, or being thrown on a time keeper. Counsel for the plaintiff took the deposition of the defendant Paul Jones, October 15, 1958, and said defendant stated that he had wrestled for thirty years and since that time had promoted wrestling for the past 15 years. And to the question, `Have you ever known a time keeper to be injured?' said defendant admitted that this is the first time he had ever heard of a time keeper getting hurt. Immediately before the plaintiff was injured, the defendant McIntyre was throwing what appeared to be a tantrum and approached the defendant Davis in a violent and menacing manner, and said defendant McIntyre was very angry at the defendant Davis because defendant Davis had immediately prior thereto angered said McIntyre by committing acts of `dirty' wrestling on the defendant McIntyre. The defendant Jones and McIntyre knew at the time they hired Sterling (Dizzy) Davis that he was an underhanded wrestler, that is, he would try to commit acts not approved by the referee during the match and those acts would anger his opponent. Because of the approach and anger of Don McIntyre as set out herein, the defendant Davis dived out of the ring on top of the plaintiff for the purpose of getting away from the defendant McIntyre, in order to let the temper of defendant Don McIntyre cool off. There were other areas along the ring and in the corner in which defendant Davis was hemmed by defendant McIntyre that defendant Davis could have gone out of other than the immediate area adjacent to the area occupied by the plaintiff. The defendants Jones and McIntyre were negligent in hiring a wrestler they knew would commit underhanded acts of wrestling in the ring that likely would anger the defendant McIntyre to such an extent that he would approach the defendant Davis in such a manner as to cause Davis to seek a retreat to safety outside the ring in order to give the defendant McIntyre a little time to control his temper. The underhanded acts committed by Davis against the defendant McIntyre are not known to this plaintiff but are well within the knowledge of the defendants. The said defendants were jointly and severally negligent in the following particulars: (a) In failing to give the plaintiff warning or notice that the defendant Davis was going to precipitate his huge body onto the plaintiff. (b) In negligently injuring the plaintiff. (c) In failing to use other areas of the ring area to perform their spectacular, there being sufficient and ample open areas, unoccupied, around all other portions of said ring area. (d) In negligently diving through the ring onto the plaintiff, as pleaded herein. The above acts of negligence constitute the proximate cause of plaintiff's injuries and damages. The defendants knew the plaintiff was occupying the area set out in this petition, and they likewise knew that if any one of them hurled himself down onto the plaintiff, the plaintiff would be seriously injured. The defendant Davis weighed over 225 pounds, and this was well known to each of the defendants. The defendants failed to exercise ordinary care for the safety and protection of the plaintiff, and said negligent acts as plead herein are the direct and proximate cause of the plaintiff's injuries and damages." The court sustained the general demurrers and special demurrer of Paul Jones and Don McIntyre to paragraph 22 of the petition and dismissed the action as to them to which judgment the plaintiff excepts.
1. It was not error for the court to sustain the special demurrer to paragraph 22 of the petition the ground of which was that it set forth evidence. Paragraph 22 alleged that the defendant Jones testified by deposition that this was the first time in 45 years that he had ever heard of a time keeper's getting hurt, Jones having wrestled for thirty years and promoted wrestling for fifteen years. This was a case of pleading evidence, pure and simple, and further discussion is superfluous.
2. Construing paragraphs 8 and 9 of the petition against the pleader, they mean that the plaintiff was required to sit where he did sit by the City of Atlanta Athletic Commission. It is common knowledge that wrestlers are thrown or are pushed or fall from the ring, and if any injury was inflicted on the plaintiff by reason of any of these things it would be the responsibility of the Athletic Commission and the plaintiff, because the Commission and the plaintiff as an experienced time keeper were charged with knowledge that danger or harm might result to one sitting within three feet of the ring. The only duty we can think of which was owed by the defendants to the plaintiff, the doctor and secretary of the Commission, was the duty to warn them of any unusual dangers which the defendants had reason to anticipate. The contention of the plaintiff that the defendants should have anticipated the behavior attributed to the defendant Dizzy Davis and should have warned the plaintiff thereof is wholly without merit because to our minds the defendants, in order to have anticipated such behavior, would not only have had to be clairvoyant but would have had to be equipped with supernatural powers beyond the capacity of common man. The defendants owed the plaintiff only a limited duty, and like the duties of ordinary care, it encompassed only the probable, not the possible, unexpected or unascertainable. Plaintiff in error cites Dusckiewicz v. Carter, 115 Vt. 122 ( 52 A.2d 788), which deals with a paying customer at a wrestling match, the location of whose seat was controlled by the promoters. Without further analysis of that case, the above fact distinguishes it from the instant case.
The court did not err in sustaining the demurrers of the two demurring defendants and in dismissing the action as to them.
Judgment affirmed. Quillian and Nichols, JJ., concur.