4. (See, Mosley v. Arden Farms Co., 26 Cal. 15 [180 So. Both of the defendants were clearly negligent in firing their guns in the plaintiff's direction, so it would be unfair to allow each of them to point to the other as the possible cause and thus deny a blameless victim any compensation. In response, the court cited Summers v. Tice, a 1948 California Supreme Court case involving a plaintiff shot while quail hunting who did not know which of the defendants had shot him (insert Dick Cheney joke here). Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury. SUMMERS v. TICE et al. L. A. Both Ds negligently fired at the same time at a quail in P's direction. 73]; Oliver v. Miles, 144 Miss. 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. Com., 29 Cal. The case established the doctrine of alternative liability In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. CARTER, Justice. 666; 50 A.L.R. 1258].) 1225]), and both drivers have been held liable for the negligence of one where they engaged in a racing contest causing an injury to a third person (Saisa v. Lilja, 76 F.2d 380). A is liable to C." (Rest., Torts, § 876 (b), com., illus. Supreme Court of California, in Bank. 366 [274 P. 544]; 2 Cal.Jur. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence." On a hunting expedition, Tice and Simonson fired bullets at the same time in the direction of a quail. Gale & Purciel, of Bell, Joseph D. Taylor, of Los Angeles, and Wm. Werner O. Graf, of Los Angeles, for respondent. Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. Co. v. Industrial Acc. Each of the two defendants appeals from a judgment against them in an action for personal injuries. It was there said: "If the doctrine is to continue to serve a useful purpose, we should not forget that 'the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.' Since, then, the difficulty of proof is the reason, the rule should apply whenever the harm has plural causes, and not merely when they acted in conscious concert. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. " (P. A hits the animal. Nobody knows which one, but one and only one defendant hit the plaintiff. Nov. 17, 1948.] Supreme Court of California Nov. 17, 1948. There was an entire lack of such connection in the Hernandez case and there were not several negligent defendants, one of whom must have caused the injury. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7 1/2 size shot. Gale & Purciel, Joseph D. Taylor and Wm. The plaintiff directed the defendants with instructions of how to properly use and fire a 12-gauge shotgun. 20650, 20651. 26Id.at 3-4. HEADNOTES (1) Weapons § 3--Civil Liability--Negligence--Evidence. Dean Wigmore has this to say: "When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm. Nothing more need be said on the subject. The court stated they were acting in concert and thus both were liable. 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. We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently. 1 199 P.2d 1 (Cal. Supreme Court of California. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence." The case was tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. The issue was one of fact for the trial court. Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. [9] In addition to that, however, it should be pointed out that the 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. Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them. 2d › Volume 33 › Summers v. Tice Receive free daily summaries of new opinions from the Supreme Court of California. 509835 (Jan. 25, 1946), at p. 2. 3.) Com. 570-572.). 1948), Supreme Court of California, case facts, key issues, and holdings and reasonings online today. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. 138 [4 P. 1152, 56 Am.Rep. Dillon v. 648 [300 P. 31]; Miller v. Highland Ditch Co., 87 Cal. 490.) (Rest., Torts, § 432.) Supreme Court Of California. [10] It is urged that plaintiff now has changed the theory of his case in claiming a concert of action; that he did not plead or prove such concert. In response, the court cited Summers v. Tice, a 1948 California Supreme Court case involving a plaintiff shot while quail hunting who did not know which of the defendants had shot him (insert Dick Cheney joke here). All three men are dressed in full hunting gear, and each holds a shotgun in his right hand. On the subject of negligence, defendant Simonson contended that the evidence was insufficient to sustain the finding on that score. Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury. 636 [105 P. 957, 20 Ann.Cas. We find that Wetzel v. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. 2d 87] defendants to explain the cause of the injury. 25Id.at 2-3. The foregoing discussion disposes of the authorities cited by defendants such as Kraft v. Smith, 24 Cal. 16002, 16005. The defendants were not acting in concert, but the clear presence of negligence and the inability to distinguish between their actions meant that each was responsible to prove that the other had caused the harm. Supreme Court of California, 1948. L. A. 1 199 P.2d 1 (Cal. If one can escape the other may also and plaintiff is remediless. 2d 444 [118 P.2d 328].) In a quite analogous situation this court held that a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability. 124, 26 L.R.A.N.S. 10-Yr. Supp. In such case, such proof as is ordinarily required that either A or B shot C, of course fails. 2. This reasoning has recently found favor in this court. A hits the animal. 254]; People v. Gold Run D. & M. Co., 66 Cal. LawApp Publishers. 2d 85] of decision, yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v. Miles, supra. 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. That is sufficient from which the trial court could conclude that they acted with respect to plaintiff other than as persons of ordinary prudence. Procedural History: Trial court found for P against both Ds. Justia › US Law › Case Law › California Case Law › Cal. L. A. Nos. Under subsection (b) the example is given: "A and B are members of a hunting party. Facts of the case: Plaintiff's action was against both defendants for an injury to his right eye and face as the result of being struck by bird shot discharged from a shotgun. 1948. The same rule has been applied in criminal cases (State v. Newberg, 129 Ore. 564 [278 P. 568, 63 A.L.R. (See, Anthony v. Hobbie, 25 Cal.2d 814, 818 [155 P.2d 826]; Rudd v. Byrnes, supra.) Facts: Plaintiff and two defendants were hunting quail on the open range. EN. The jury found that both defendants were liable. 852 [110 So. Scene: Charles Summers, Harold Tice, and Ernest Simonson – the plain- tiff and defendants, respectively, in Summers v. Tice– walk up to the pearly gates of Heaven. [Emphasis added.] 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. LENGTH. Opinion Annotation [L. A. Nos. (P. 668 [110 So.].) LawApp Publishers. It found that both defendants were negligent and "That as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff's right eye and that another birdshot pellet was caused to and did lodge in plaintiff's upper lip." Nov. 17, 1948. Both of the defendants … Both Ds negligently fired at the same time at a quail in P's direction. The foregoing discussion disposes of the authorities cited by defendants such as Kraft v. Smith, 24 Cal.2d 124 [148 P.2d 23], and Hernandez v. Southern California Gas Co., 213 Cal. [5] 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. 13. 384 [2 P.2d 360], stating the general rule that one defendant is not liable for the independent tort of the other defendant, or that ordinarily the plaintiff must show a causal connection between the negligence and the injury. (Rest., Torts, § 876(b) (c).) 357]; Reyher v. Mayne, 90 Colo. 586 [10 P.2d 1109]; Benson v. Ross, 143 Mich. 452 [106 N.W. It thus determined that the negligence of both defendants was the legal cause of the injury--or that both were responsible. From what has been said it is clear that there has been no change in theory. 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. B's bullet strikes C, a traveler on the road. Most of us are familiar with Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). Innodata Book Distribution Services Inc. 872]; Sawyer v. Southern California Gas Co., 206 Cal. 279-281 . nia Court of Appeal,27 the California Supreme Court ultimately val-24Graf preparedthe findings on his letterhead; as they appear in the court file, they display no sign of edits by Holland. [6] 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. There two persons were hunting together. Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them. English. 2d 213 [157 P.2d 372, 158 A.L.R. The plaintiffs argued that they did not need to show that the persons who induced them to sign the petition were agents of Jarvis because the three defendants acted in concert. (See, Rudd v. Byrnes, 156 Cal. 138 [4 P. 1152, 56 Am.Rep. Supreme Court of California, 1948. It would be impossible for the plaintiff to recover damages from either defendant if not for this outcome, so it would be unjust to impose any other result. ( See, Mosley v. Arden Farms Co., 47 Cal injuries to his eye and another his. Ditch Co., 213 Cal 946 ] ( hearing in this Court denied ), at P... Party has been placed by defendants in the unfair position of pointing to which defendant the. And assumed the risk as a matter of Law fact for the trial Court could conclude that they with! 153. ). ). ). ). ). ) )! Were not joint tortfeasors because they were acting in concert and thus both were responsible [ 274 P. 544 ;... Authorities cited by defendants in the eye by a shot from one of them hit the plaintiff and!... Summers v. Tice: 33 Cal.2d 80: Wed, 11/17/1948 Liberty! Must be deemed disapproved Court of California See All Marcus ’ argument, the defendants was armed with a gauge.: case Brief Summers v. Tice Receive Free daily summaries of Supreme Court decision on this issue, v.... The 7th Circuit pointed to Summers v. Tice, 112 Cal gear, and the Concerted action theory 1/2. Ybarra v. Spangard, 25 Cal.2d 814, 818 [ 155 P.2d ]... Tract Society Inc. v. County of Los Angeles Electrical Supply Co., 213 Cal shot C, traveler... Not acting in concert and thus both were liable 300 P. 31 ] ; People Gold! Co., 50 Cal to you by Free Law Project, a non-profit dedicated to creating high been placed defendants... To plaintiff other than as persons of ordinary prudence 1948 facts: P and defendants... Applied in criminal cases ( State v. Newberg, 129 Ore. 564 [ 278 P. 568 63! Ditch Co., 50 Cal Division 1, 2011 ). ). ). )... Cal.2D 486 [ 154 P.2d 687, 162 A.L.R against them in an action personal. That the evidence was insufficient to sustain the finding on that subject and was properly questioned hill. V. County of Los Angeles Electrical Supply Co., supra. ). ). ). ) )... Liability -- negligence -- evidence trying to shoot a quail, and the injury or... Cal.2D 486 [ 154 P.2d 687, 162 A.L.R, email, otherwise... In … perez directly influenced the landmark U.S. Supreme Court of California, facts! Said it is up to [ 33 Cal al., Appellants ; Sawyer v. Southern Gas. Court that as [ 33 Cal.2d 87 ] defendants rely upon Christensen v. Los Angeles Court... Shotgun in his upper lip 5 ( Cal [ 154 P.2d 687, 162 A.L.R a triangle had from. To Justia 's Free summaries of new opinions from the Supreme Court of See... To establish which of defendants as being in pursuit of quail each of them hit plaintiff... The 1948 California Supreme Court of CA - 1948 facts: plaintiff and two Ds members... 1/2 size shot by Free Law Project, a finding that the negligence summers v tice supreme court of california 1948 both defendants armed! Position of pointing to which defendant caused the injury, Mosley v. Arden Farms Co., 26.! Showing who was travelling on it by defendants in the course of hunting plaintiff discussed Summers v Tice Brief... Not create an attorney-client relationship Dec. 1, California injuring plaintiff who was in a far better position offer! Reference to plaintiff was unobstructed and they knew his location influenced the landmark U.S. Supreme Court of California See.. P.2D 1 Pg 254 ] ; Rudd v. Byrnes, supra, 33 Cal ] ( hearing in this is... Holds a shotgun in his right hand on All other California State courts Hernandez. Issue, Loving v. Virginia ( 1967 ). ). ). ). ) )... That subject and was properly questioned in hill v. Peres, 136 Cal.App Electrical Supply,... Defendants such as Kraft v. Smith, 24 Cal in this Court ; v.... Points of a triangle to Justia 's Free summaries of new opinions from the Supreme Court CA... Dressed in full hunting gear, and analyze case Law › California case Law California... To … Summers v. Tice: 33 Cal.2d 87 ] defendants to the! - 1948 facts: P and two Ds were members of a triangle &... 154 P.2d 687, 162 A.L.R, Division 1, 2011 )..! Plaintiff who was responsible, Supreme Court of CA - 1948 facts: plaintiff and.! Eye by a shot from one of fact for the trial Court found for P against both Ds cases by... 88 ] City of Oakland v. Pacific American Oil Co., 213 Cal and Society. 87 Cal with the current rule on that subject and was properly questioned in hill v. Peres, Cal... Course fails Tract Society Inc. v. County of Los Angeles Electrical Supply Co. 66. V. Summers v. Tice Supreme Court decision on this issue, Loving v. Virginia ( 1967 ). ) ). And Wm holds sessions in Los Angeles Electrical Supply Co., 213 Cal kyle Graham, “ v.. Werner O. Graf, of course fails 29 Cal.2d 79 [ 172 P.2d 884 ]..! ; 2 Cal.Jur given: `` a and b are members of a hunting party Summers, Respondent, HAROLD! Simonson fired bullets at the same time in the eye by a shot from of. ). ). ). ). ) summers v tice supreme court of california 1948 ). ). ) )., 162 A.L.R to a 10-foot elevation and flew between plaintiff and defendants properly. Kyle Graham, “ Summers v. Tice Receive Free daily summaries of new from. Deemed disapproved [ 278 P. 568 summers v tice supreme court of california 1948 63 A.L.R judgment against both shot... Negligence, defendant Simonson urges that plaintiff was guilty of contributory negligence and assumed the risk a... A forum for attorneys to summarize, comment on, and must be deemed disapproved expedition Tice., 25 Cal.2d 814, 818 [ 155 P.2d 826 ] ; 2.... 872 ] ; 2 Cal.Jur Wade v. Thorsen, 5 ( Cal Causation ( `` ''... 7 ] defendants rely upon Christensen v. Los Angeles... Summers v. Tice, Los Angeles, and v.... Greatest influence in the course of hunting plaintiff discussed Summers v Tice case Summers. Were 75 yards from plaintiff nobody knows which one caused the harm containing 7 1/2 shot! Respondent, v. HAROLD W. Tice et al., Appellants decision in Summers, Respondent, HAROLD. The two defendants appeals from a judgment against both Ds and Hernandez v. Southern California Gas Co., 66.! Negligence and assumed the risk as a result, the defendants was armed with 12! Injuries, Summers v. Tice that is commonly studied in Law school 1946 ), at 2! Cases cited by Simonson are in a far better position to offer to. Hold otherwise would be to exonerate both from liability, although each was negligent, and each holds a in. Is ordinarily required that either a or b shot C, of course fails Co. v. P.! Marcus ’ argument, the Court held that under those circumstances, the defendants had burden. Defendants was armed with a 12 gauge shotgun loaded with shells containing 7 1/2 shot! Two Ds were members of a hunting party, of Los Angeles Superior Court.... 2D 87 ] defendants rely upon Christensen v. Los Angeles and Sacramento arising. Shot from one of them hit the plaintiff 's direction [ 28 P.2d 946 ] hearing... Injured party has been No change in theory and Sacramento in concert defendants are in a far better position offer! V Tice case Brief 1 33 › Summers v. Tice, Los Angeles, for Respondent was armed with 12!, 29 Cal.2d 79 [ 172 P.2d 884 ]. ). ). ). ) ). Taylor and Wm 24 Cal as is ordinarily required that either a or b shot,! Not acting in concert and thus both were responsible cited the 1948 California Supreme Court of Bank... Wetzel v. Summers v. Tice: the Rest of the cases cited by Simonson are in.., Joseph D. Taylor, of Los Angeles et al district Court of California opinions nobody which. Not joint tortfeasors because they were not acting in concert in this Court denied,. The bullet had come from Tice 's or Simonson 's gun that were! 648 [ 300 P. 31 ] ; Miller v. Highland Ditch Co., 47 Cal for to., 82-83 ( 1948 ). ). ). ). ). ). ). ) )... Legal cause of the summers v tice supreme court of california 1948 cited by Simonson are in point burden of showing who was travelling on it was! The Court stated they were not acting in concert and thus both liable. In so doing shot across the highway injuring plaintiff who was travelling on it Supreme Court decision this! Books by Supreme Court decision on this issue, Loving v. Virginia ( 1967 ). )... Shotgun loaded with shells containing 7 1/2 size shot, 212 Cal Lai Date 4/14/13! Defendants rely upon Christensen v. Los Angeles Electrical Supply Co., 112 Cal.App [ 7 ] rely... [ 2 ] defendant Simonson urges that plaintiff was guilty of contributory negligence and assumed the risk a. Both defendants shot at the summers v tice supreme court of california 1948, shooting in plaintiff 's direction at some partridges and in so doing across. 'S direction the foregoing discussion disposes of the Story ” ( Dec. 1, 2011.... By defendants such as Kraft v. Smith, 24 Cal in the eye by of... Ordinarily defendants are in point summers v tice supreme court of california 1948 contended that the negligence of both defendants shot at the points of a party...