Frasca – Cases in Law and Economics, Torts
1
Charles A. Summers, Respondent, v.
Harold W. Tice et al., Appellants
Supreme Court of California
33 Cal. 2d 80 (1948)
[There hunters were hunting. Two hunters shot simultaneously, as the third hunter
walked between them. He was hit in the face by a load of bird shot. It was equally likely
that either of the hunters that discharged their guns may have caused the harm. The
defendants were negligent and the plaintiff was not contributorily negligent. Should
either or both of the defendants be liable for the harm?]
JUDGES: In Bank. Carter, J. Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., Schauer,
J., and Spence, J., concurred
.
OPINIONBY: CARTER
Each of the two defendants appeals from a judgment against them in an action for
personal injuries. Pursuant to stipulation the appeals have been consolidated.
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. 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. Each of the defendants was armed
with a 12 gauge shotgun loaded with shells containing 7 1/2 size shot. Prior to going
hunting plaintiff discussed the hunting procedure with defendants, indicating that they
were to exercise care when shooting and to "keep in line." In the course of hunting
plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view
of defendants with reference to plaintiff was unobstructed and they knew his location.
Defendant Tice flushed a quail which rose in flight to a 10-foot elevation and flew
between plaintiff and defendants. Both defendants shot at the quail, shooting in plaintiff's
direction. At that time defendants were 75 yards from plaintiff. One shot struck plaintiff
in his eye and another in his upper lip. Finally it was found by the court tha