Summers v. Tice

Facts

Summers and the two defendants, Harold Tice and Simonson, were hunting quail on the open range on November 20, 1945. Each defendant carried a 12 gauge shotgun loaded with shells of the same size shot. Before they went hunting, Summers discussed the hunting procedure with the defendants and told them to exercise care when shooting and to "keep in line." During the hunt, Summers went up a hill, which placed the three hunters at the points of a triangle. The defendants had an unobstructed view of Summers and knew where he was. Tice flushed a quail, which rose to a 10-foot elevation and flew between Summers and the defendants. Both defendants shot at the quail, shooting in Summers's direction from 75 yards away. One shot struck Summers in the eye and another in the upper lip. The shot in the eye was the major factor in his damages, and it could have come from only one of the two guns. Tice pointed to admissions Simonson allegedly made to third persons that he fired the shots. The trial court evidently did not give those admissions credence, and it did not find which defendant's shots hit Summers.

Issues

1. When two hunters both negligently shoot toward the plaintiff and he cannot show which one's shot injured him, may the judgment against both stand, with each defendant left to absolve himself if he can?
2. Did the plaintiff assume the risk or act with contributory negligence as a matter of law by joining the hunt and going uphill at an angle to the hunting line?

Holding

Both Tice and Simonson were negligent toward Summers, and he could not show whose shot injured him, so the burden shifted to each of them to absolve himself. The judgment holding both liable for the whole damage could stand, and the trial court was justified in finding that Summers did not assume the risk or act other than as a person of ordinary prudence.