Annear v. Swartz

• Decision Date: 27 April 1915
• Docket Number: 4280.
• Parties: ANNEAR v. SWARTZ.
• Court: Oklahoma Supreme Court

148 P. 706

46 Okla. 98, 1915 OK 195

ANNEAR v. SWARTZ.

No. 4280.

Supreme Court of Oklahoma

April 27, 1915

Syllabus by the Court.

On a demurrer to evidence, it must be taken that he who interposes it admits all the facts which the evidence in the slightest degree tends to prove, and all the inferences or conclusions which may be reasonably and logically drawn therefrom, and the court will not weigh conflicting evidence, but will treat as withdrawn all evidence which is most favorable to the party demurring.

Where a person is injured by the accidental discharge of a gun in the hands of another, the test of liability is not whether the injury was accidentally inflicted, but whether the defendant is free from all blame.

So where two persons were hunting together, and the gun of the defendant had a hammer, the thumb hold of which was worn smooth, and the defendant, seeing the plaintiff and knowing the gun was pointed towards him, attempts to let down the hammer, which slips through his fingers and the gun is thereby discharged, and the plaintiff injured, held, sufficient evidence to take the case to the jury on the issue of negligence, and it was error to sustain a demurrer thereto.

Commissioners' Opinion, Division No. 2. Error from District Court, Major County; Jas. B. Cullison, Judge.

Action by W. J. Annear, an infant under the age of 21 years, by Esther E. Annear, his next friend, against D. L. R. Swartz. Judgment for defendant, and plaintiff brings error. Reversed.

The petition alleges, in substance, that on the 3d day of March 1911, the defendant carelessly, negligently, and recklessly pointed toward the plaintiff a loaded shotgun, and so carelessly, negligently, and recklessly handled the gun that he caused the same to be discharged at the plaintiff, by which the plaintiff was wounded in the ankle so severely that it was necessary to amputate the leg. The answer was a general denial. The evidence tends to show that the plaintiff was an employé of the defendant, and on the day of the accident the two went duck hunting, that there was only one gun, which belonged to the defendant, and this gun had a small hammer, and that the thumb grip was worn, to use the language of the witness, "pretty slick." After arriving at the point where they expected to find the ducks the plaintiff and defendant laid down together, about two or three feet apart, in thin grass about 18 inches high. After remaining for some time ducks flew over them, but too high to shoot, although the defendant cocked the gun and made ready to fire at them. The ducks lighted in a pond some little distance from where the parties were, and the plaintiff suggested to the defendant that they go to this pond, and got up from the ground and started toward the other pond; that in getting up the plaintiff not only stated to the defendant that they had better go to the other pond, but made sufficient noise to have attracted the attention of the defendant, and that when plaintiff got up from the ground and started toward the other pond the defendant was looking at him. After going about five or six feet, and while the defendant was still lying on the ground, plaintiff turned to see why he was not coming, as he had not heard him get up and just as he turned the gun fired, and the plaintiff was wounded in the ankle so severely as to make an amputation of the foot necessary. This took place in the daytime, and the defendant was looking at the plaintiff when he got up, and that the defendant was looking in his direction at the time the gun exploded. There was also evidence tending to show that the defendant stated that he started to let down the hammer of the gun, and it slipped through his fingers, thus causing the gun to fire. There was a demurrer to this evidence, which was sustained by the court, and judgment thereon for the defendant, and the plaintiff has brought the case on error to this court.

Brady & Willis, of Fairview, for plaintiff in error.

McKeever & Church, of Enid, for defendant in error.

DEVEREUX, C. (after stating the facts as above).

There is a large amount of testimony in the record, but it is not necessary to be stated, for, as decided by the Supreme Court of this state, in Scully v. Williamson, 26 Okl. 19, 108 P. 395, 27 L. R. A. (N. S.) 108, Ann. Cas. 1912A, 1265:

"When a demurrer to the evidence is interposed, it must be taken that he who interposes it admits all the facts which the evidence in the slightest degree tends to prove, and all the inferences or conclusions which may be reasonably and logically drawn therefrom, and the court will not weigh conflicting evidence, but will treat, as withdrawn, all the evidence which is most favorable to the party demurring."

The question, therefore, presented is whether there was any evidence to go to the jury under this rule.

At common law, where one was injured by the discharge of a gun, or other firearms, in the hands of another, the action was for trespass vi et armis, and the only defense available was that the defendant was utterly without fault. 1 Thomp. on Neg. § 779; Weaver v. Ward, Hobart, 134. The modern doctrine, however, has modified this rule, and places the liability of one who injures another through the negligent discharge of firearms on the footing of negligence, and not on the footing of trespass. However, in 1 Thomp. on Neg. § 780, it is said that it may be doubted whether there is much substantial difference in the grounds of liability. In the same section it is said by Mr. Thompson, in speaking of the injury of one by the discharge of a gun in the hands of another:

"Here, as in other cases, the test of the liability of the defendant is whether, in what he did, he failed to exercise reasonable or ordinary care. And here, as in other cases, the reasonable care which persons using firearms are bound to take in order to avoid injury to others is a care proportionate to the probability of injury; and the principal is applicable that he who does what is more than ordinarily dangerous is bound to use more than ordinary care. Whether in case of an injury proceeding from such cause ordinary or reasonable care was used by the person inflicting it will, in almost every case, present a question for the jury."

In Morgan v. Cox, 22 Mo. 373, 66 Am. Dec. 623, the suit was brought for the negligent shooting of the plaintiff's slave, and the only question was as to the fact of negligence. The defendant had been out with his gun, and was asked by plaintiff to aid him and his servant in driving an unruly cow...