Bauer v. Saginaw County Agr. Soc.

• Decision Date: 04 September 1957
• Docket Number: Nos. 57,58,s. 57
• Citation: 84 N.W.2d 827,349 Mich. 616
• Parties: Roland BAUER, Plaintiff and Appellee, v. SAGINAW COUNTY AGRICULTURAL SOCIETY, a Michigan corporation, et al., Defendants and Appellants. Leslie BAUER, by Florence Bauer, next friend, Plaintiff and Appellee, v. SAGINAW COUNTY AGRICULTURAL SOCIETY, a Michigan corporation, et al., Defendants and Appellants. January Term 1957.
• Court: Michigan Supreme Court

Page 827

84 N.W.2d 827

349 Mich. 616

Roland BAUER, Plaintiff and Appellee,

v.

SAGINAW COUNTY AGRICULTURAL SOCIETY, a Michigan corporation,

et al., Defendants and Appellants.

Leslie BAUER, by Florence Bauer, next friend, Plaintiff and Appellee,

v.

SAGINAW COUNTY AGRICULTURAL SOCIETY, a Michigan corporation,

et al., Defendants and Appellants.

Nos. 57, 58 January Term 1957.

Supreme Court of Michigan.

Sept. 4, 1957.

Stanton, MacKenzie, Cartwright & Walker, Saginaw, for appellant.

Oscar W. Baker, Bay City, James A. White, Jr., Bay City, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

On Farmers' Day, September 15, 1949, a farmer's wife and her 4 1/2-year-old son went to the fair. She paid admission and with her son was walking down the midway when suddenly there was the crack of a rifle. The boy fell, shot through the abdomen by a .22-caliber bullet. Testimony at trial of this case indicated that the shot came from a shooting gallery on the midway (closed to the public at the time) wherein a 15-year-old employee was cleaning a rifle.

With the astonishing resilience of the young, the boy came through extensive surgical repair of his punctured intestines and survived and recovered with a bullet lodged in the base of his spine. These two suits are brought by the mother on his behalf for his injuries and pain and suffering, and by the father for the hospital and medical and incidental expenses. Failing to serve the rifle range concessionaire or the 15-year-old boy, they seek to hold the defendant sponsors of the fair for damages. The trial judge, hearing the case without a jury, entered judgments of $5,000 and $1,153.45 respectively in the two cases, and the defendant Saginaw County Agricultural Society appeals.

The detailed facts are set forth with admirable conciseness by the parties in a stipulated statement of facts, most of which we quote verbatim:

'For many years, defendant society had conducted on its own property in Saginaw, Michigan, a well attended and advertised fair for 1 week in the year. September 15, 1949, was advertised as Farmers' Day, and plaintiff, Florence Bauer, a farmer's wife, was attracted. She attended with her 4 1/2 year old son, Leslie, and her sister, Norma Bartotti. On September 15, 1949, as invitees, they paid to enter defendant grounds.

'The minor was walking south with his mother down the roadway, which was a paved thoroughfare for patrons of the fair. It extended north and south through the grounds with games and other amusement devices lining the east and west sides. At the south end on the west side of the midway was a shooting gallery. This shooting gallery was about 14 feet wide and 24 feet deep with a steel back and sides. At time of the injury, a canvas curtain hung from the top of the booth to the counter preventing patrons on the midway from seeing into the gallery.

'About 10:30 a. m., as the Bauer group reached a point 126 feet north of the front of the booth, a shot rang out. Leslie Bauer collapsed with a 22 caliber bullet embedded in his body.

'Unknown to plaintiffs at this time a 15 year old boy, Harry Lee Nobles, was inside the gallery cleaning the 22 caliber rifles used in operation of the shooting gallery. Nobles was in charge of the gallery at the time, and as he was handling 1 of the guns facing out toward the midway, he stated the gun he was cleaning accidentally discharged. This gun was partially disassembled and Nobles failed to remove the bullets from it. The bullet from the gun went through the canvas curtain and struck the Bauer boy.

'The shooting gallery space had been leased by Jack Smith, a concessionaire, from defendant as he had done in other years. The agreement resulting in his presence at the 1949 fair is evidenced by exhibit 17. The balance of the rental fee was collected by defendant on the 2d day of the fair. Harry Lee Nobles was an employee of Jack Smith who hired him to work in the shooting gallery. There were chains for the guns so operated so that operators could not turn the guns around, but they were not chained at the time of the injury.

'Mr. Bennett Sawyer, a director of defendant society, handled the renting of space to Smith. No rules or regulations were imposed by defendant on Smith as to his employees used in the shooting gallery, their age, experience, responsibility or knowledge of guns and this was left to the discretion of the shooting gallery operator. However, prior to the injury, defendant knew that Nobles was employed in the shooting gallery.

'The guns were not inspected by Mr. Sawyer and there is no evidence that any of defendant agents or employees did so. The fair opened at 9:00 a. m., but no orders were given to prohibit cleaning of the guns when invitees were on the grounds. All concessionaires were subject to rules and regulations of defendant society as a condition of rental. The only terms of regulations imposed on Smith are evidenced by exhibit 17. The entire control of the rented gallery space was in Smith's hands.

'After the shooting gallery was erected, Sawyer inspected and saw that it was properly erected with steel sides back and hood. Sawyer made no other inspections of the gallery as he was busy collecting money and seeing that everything ran all right. Sawyer stated he did not interfere with concessionaires.

'As safety measures, defendant maintained a first aid building with a nurse in constant attendance, an ambulance and 2 doctors always available. There were clean restrooms and pure drinking water. Defendant arranged to have the Saginaw police on duty, 9 during the day and 3 at night. Defendant hired a staff of 15 men from the Pinkerton Detective Agency; it was their duty to report hazards to the public, injury or sickness or disturbances. They patrolled the midway and were authorized to safeguard the public. No other evidence was presented by defendant as to precautions.

'Exhibits 8 through 14 are pictures inside and outside showing physical aspects of the gallery after the shooting. Any facts, not herein specifically stated, but appearing in the opinions of the court are evidenced by the record. Plaintiff was unable to serve either Smith or Nobles with process.

'Judgments were rendered for plaintiffs by the court sitting without a jury, and judgments duly entered. On motion for new trial, opinions were rendered denying same.'

Before this Court the appellant presents one question for review which appellee accepts in a revised form:

Appellant's question

'Was defendant and appellant herein, Saginaw County Agricultural Society, guilty of negligence which was the proximate cause of the plaintiffs' damages?'

Appellee's question

'Do the facts establish that defendant invitor failed in its duty to plaintiff invitee to use reasonable care in supervision, control and inspection of the shooting gallery being operated on its premises so as to result in 1 of the proximate causes of plaintiff's injury?'

The parties in their briefs and the trial judge in a careful opinion agree upon at least two basic propositions. As stated by the appellant, they are:

'The appellant concedes that the law of Michigan requires it to maintain a reasonably safe place for visitors to the fair, and appellant further concedes that in the case of firearms, whether used by appellant's agents or anyone on their fairgrounds that a high degree of care is owed to patrons of the fair to keep the area where firearms are used reasonably safe.'

The first of these propositions is quoted thus in Sullivan v. Detroit & Windsor Ferry Co., 255 Mich. 575, at pages 576-577, 238 N.W. 221:

"The duty assumed by the owners of places to which the public thus resort in large numbers is manifestly analogous to that which the law imposes upon carriers of passengers. Nevertheless it has been measured by the standard of ordinary care. Doubtless the true theory is that such persons assume the obligation of exercising reasonable care, and that what will be reasonable care will be a degree of care proportioned to the danger incurred, and to the number of persons who will be subjected to that danger. * * * Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invites to come into it; and that, if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defect which renders it unsafe is immaterial." 1 Thompson on Negligence, 2d Ed., § 996, pp. 913-914.

The second is best stated in Bahel v. Manning, 112 Mich. 24, at pages 29-30, 70 N.W. 327, at page 329, 36 L.R.A. 523:

'The general rule * * * is that a very high degree of care is required from all persons using firearms in the immediate vicinity of others, no matter how lawful or even necessary such use may be. 7 Am. & Eng. Enc. Law, 523. This same principle is stated in Shear & R.Neg. (4th Ed.) § 686. In Morgan v. Cox, 22 Mo. 373 (66 Am.Dec. 623), it was held, where injury to another is caused by an act that would have amounted to trespass vi et armis under the old system of actions, it is no defense that the act occurred through inadvertence, or without the wrongdoer's intending it; it must appear that the injury done was unavoidable, and utterly without fault on the part of the alleged wrongdoer.'

With the above disposed of, the dispute on appeal hinges on whether or not there were facts from which the trial judge as trier of the facts could have found negligence on the part of defendant which was a proximate cause of the boy's ininjury. The contested finding was as follows:

'Here it was known that guns in a shooting allery were to be used in close proximity to large crowds of people invited there by the defendant, Saginaw County Agricultural Society, whose negligence in not exercising a reasonable degree of continuous supervision, control and inspection of...