Summers v.Tice

Supreme Court of California,1948

33 cal.2d 80,199 P.2d 1

Actions by Charles A.Summers against Harold W.Tice and against Ernest Simonson for negligently shooting plaintiff while hunting.From judgments for plaintiff,defendants appeal,and the appeals were consolidated pursuant to stipulation.

[Plaintiff and the two defendants were members of a hunting party.Both defendants negligently fired,at the same time,at a quail and in the plaintiff’s direction.Plaintiff was struck in the eye by a shot from one gun.There was no other satisfactory evidence.]

CARTER,J.… The problem presented in this case is whether the judgment against both defendants may stand.It is argued by defendants that they are not joint tort feasors,and thus jointly and severally liable,as they were not acting in concert,and that there is not sufficient evidence to show which defendant was guilty of the negligence which caused the injuries – the shooting by Tice or that by Simonson….The one shot that entered plaintiff’s eye was the major factor in assessing damages and that shot could not have come from the gun of both defendants.It was from one or the other only.

It has been held that where a group of persons are on a hunting party,or otherwise engaged in the use of firearms,and two of them are negligent in firing in the direction of a third person who is injured thereby,both of those so firing are liable for the injury suffered by the third person,although the negligence of only one of them could have caused the injury….

These cases speak of the action of defendants as being in concert as the ground of decision,yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v.Miles,144 Miss.852,110 So.666.There two persons were hunting together.Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was traveling on it.The court stated they were acting in concert and thus both were liable.The court then stated: “We think that … each is liable for the resulting injury to the boy,although no one can say definitely who actually shot him.To hold otherwise would be to exonerate both from liability,although each was negligent,and the injury resulted from such negligence.” [Emphasis added.]….

When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only,a requirement that the burden of proof on that subject be shifted to defendants becomes manifest.They are both wrongdoers – both negligent toward plaintiff.They brought about a situation where the negligence of one of them injured the plaintiff,hence it should rest with them each to absolve himself if he can.The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm.If one can escape the other may also and plaintiff is remediless.Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury.This reasoning has recently found favor in this Court.[The court refers here to its earlier holding in Ybarra v.Spangard,(1944) 25 Cal.2d 486,165 P.2d 687].

[T]he same reasons of policy and justice shift the burden to each of defendants to absolve himself if he can – relieving the wronged person of the duty of apportioning the injury to a particular defendant,apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages.If defendants are independent tort feasors and thus each liable for the damage caused by him alone,and,at least,where the matter of apportionment is incapable of proof,the innocent wronged party should not be deprived of his right to redress.The wrongdoers should be left to work out between themselves any apportionment….

The judgment is affirmed.