Atchison v. William Dullam.

• Decision Date: 31 December 1884
• Citation: 16 Ill.App. 42,16 Bradw. 42
• Parties: GARRETT P. ATCHISONv.WILLIAM DULLAM.
• Court: United States Appellate Court of Illinois

16 Ill.App. 42

16 Bradw. 42

GARRETT P. ATCHISON

v.WILLIAM DULLAM.

Appellate Court of Illinois, Second District.

December Term, 1884.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Boone county; the Hon. CHAS. KELLUM, Judge, presiding. Opinion filed February 5, 1885.

This action was commenced by plaintiff in error against the defendant in error to recover damages sustained by reason of injuries received from a gun-shot wound, the gun being discharged while in the hands of the defendant.

The first two counts of the declaration are in case averring negligence upon the part of the defendant in handling the gun, by reason of which it was pointed at the plaintiff and negligently discharged and the plaintiff thereby shot and wounded. The last two counts are in trespass vi et armis in the usual form.

The general issue was pleaded with the agreement that any proof showing that the acts complained of were accidental or occasioned by misadventure might be introduced under that plea.

The evidence upon the trial established the following facts: That in September, 1881, one George A. Stanley, an acquaintance of the defendant who was a farmer residing in Boone county, and the plaintiff, went from Chicago where they resided, out to Dullam's to have a little recreation, and upon arriving there they all went hunting that afternoon. The next morning they intended to leave, but Dullam invited them to remain, and he would go with them after game. They got into a buggy and drove out into the woods, when, upon the suggestion of the defendant, they hitched the team and alighted from the buggy. Stanley and the plaintiff each had a double barreled breech-loading shot gun, and when they got out of the buggy, Stanley gave his gun to the defendant, and they started along in a northeast direction, the defendant upon the right, Stanley next, and the plaintiff at the left and slightly in front. When the gun was taken by Dullam from Stanley he cocked both hammers and traveled along with the gun in that condition. After going about seventy-five yards, the defendant fired one barrel at a bird and killed it, and desiring to reload the discharged barrel, attempted to break down the gun so he could insert a new cartridge, and at this point Stanley said to him, “Here is a shell,” and the defendant then turned around toward the left, and while still fumbling the gun, permitted the muzzle to point directly toward the plaintiff, then not over six feet distant and in full view, and the other barrel being discharged, its contents struck the leg of the plaintiff below the knee, necessitating amputation.

A trial being had, the jury rendered a verdict in favor of the defendant, under the instructions of the court, and the plaintiff sued out this writ of error.

Mr. J. C. GARVER and Mr. R. S. TUTHILL, for plaintiff in error; cited Morgan v. Cox, 22 Mo. 373; Underwood v. Hewson, Strange, 596; Cole v. Fisher, 11 Mass. 137; Chataigne v. Bergeron, 10 La. An. 699; Cooley on Torts, 674; Tally v. Ayres, 3 Sneed (Tenn.), 677; 1 Thompson on Negligence, 238; Welch v. Durand, 36 Conn. 182.

Mr. A. B. COON and Mr. T. D. MURPHEY, for defendant in error.PILLSBURY, J.

As early as Weaver v. Ward, Hobart, 134, trespass was allowed to be a proper form of action for the recovery of damages sustained by the plaintiff from a discharge of a gun in the hands of the defendant. An action of trespass vi et armis having been brought, the defendant pleaded that he and the plaintiff were soldiers in the same company, and by order of the commandant they were engaged with another company in military exercise in which the discharging of the guns was a part, and that his gun, by accident and misadventure and without his will, was discharged, by which the plaintiff was injured. Upon demurrer it was held that the defendant could only excuse himself by showing that he was utterly without fault, and a plea which did not show that the injury was inevitable and that the defendant had committed no negligence to give occasion to the hurt was bad, and judgment was given for the plaintiff.

Underwood v. Hewson, Strange, 596, is a case holding that where the defendant was uncocking his gun, the plaintiff standing by to see it done, and the gun was accidentally discharged, wounding the plaintiff, the defendant was liable in trespass; and Sewell, C. J., in Cole v. Fisher, 11 Mass. 137, says that the decision in that case has never been questioned.

But whether the liability of the defendant is sought to be enforced in an action of trespass or in any action on the case can make no particular difference as the rule of law upon which the defendant's liability is to be established is the same in either form of action.

Tally v. Ayers, 3 Sneed, 677, was an action to recover for the loss of a mare by being shot by the discharge of a gun in the hands of the defendant. The mare of the plaintiff was standing hitched near a store in the town, and the defendant starting for home, took his rifle from the store, where he had left it on arrival at the town, and when in the act of placing it upon his shoulder, by some means it was discharged, killing the plaintiff's mare. It was found that the discharge of the gun was accidental and without the concurrence of the plaintiff's will. The defendant was held liable, the court saying: “To constitute an available defense in such cases it must appear that the injury was unavoidable, or the result of some superior agency without the imputation of any degree of fault to the defendant.” “The very fact that the gun ‘went off’ under the circumstances detailed in the proof implies some inadvertent act, or want of proper caution on the part of defendant.” “The lock must either have been defective, or some agency must have been exerted, unintentionally and perhaps unconsciously by the defendant, otherwise the discharge of the gun could not have happened. And in either view the defendant is alike amenable for the consequences.”

Chataigne v. Bergeron, 10 La. Ann. 690, was an...