Clark v. Braham

• Decision Date: 09 November 1971
• Docket Number: No. 16,16
• Parties: Bobbie Lee CLARK, Paintiff and Appellant, v. Robert BRAHAM and Michael O'Lear, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 352

191 N.W.2d 352

386 Mich. 53

Bobbie Lee CLARK, Paintiff and Appellant, v. Robert BRAHAM and Michael O'Lear, Defendants and Appellees.

No. 16.

Supreme Court of Michigan.

Nov. 9, 1971.

Leitson, Dean, Dean, Segar & Hart, P. C., Flint, by Robert L. Segar, Flint, of counsel, for plaintiff and appellant.

Ransom, Ransom, Ransom & Henneke, Flint, for defendants and appellees; by Robert M. Ransom, Flint, of counsel.

Before the Entire Bench.

T. G. KAVANAGH, Justice.

The facts giving rise to this suit for personal injuries are succinctly set forth by the trial judge who sat without a jury and serve, once again, to exhibit the tragedy so often attendant upon the popular sport of hunting. The court found:

That on November 16, 1963, plaintiff was in a deer hunting blind about fifty to sixty yards from the blind of defendant O'Lear and that a deer trail or run passed between the two; that plaintiff was wearing a faded red sweatshirt which color remained bright enough so that contributory negligence cannot be predicated upon the color of his clothing; that defendant O'Lear, either mistaking plaintiff's movement as a deer or, intending to shoot a deer on the deer run, fired his gun in a direct line from his position at the blind to the plaintiff's blind and in fact shot the plaintiff; that plaintiff had been in his position since daybreak and was standing smoking with his back to the pine tree when shot and that defendant O'Lear had been at the pine tree about forty minutes; that plaintiff knew of O'Lear's presence at the pine tree; but made no effort to communicate his presence to defendant O'Lear or remove himself from his position; that defendant O'Lear did not know of the presence of the plaintiff nor did he make any effort to ascertain the presence of any other persons at the time he shot. The defendant Braham had nothing to do with the shooting incident except for furnishing defendant O'Lear the gun some three years before the shooting and being in the same hunting party as defendant O'Lear.

The trial judge, relying on Felgner v. Anderson (1965), 375 Mich. 23, 133 N.W.2d 136, and Bahel v. Manning (1897), 112 Mich. 24, 70 N.W. 327, found defendant O'Lear guilty of negligence which was the proximate cause of the injury to the plaintiff. He also found the plaintiff contributorily negligent, and held that this barred recovery.

The Court of Appeals denied the application for delayed appeal.

We granted leave to appeal to correct a misconception of the effect of the Michigan rule.

The appellant argues for and the trial judge suggests in these circumstances, a 'different' rule of law to be applied in hunting activities where a person sustains injury due to another's discharge of a firearm.

We think the Felgner rule is sound but it was not properly applied in this case. In Felgner, supra at pp. 29, 30, 133 N.W.2d at p. 140, the court said:

'Defendant has appealed from an adverse jury verdict and judgment of $35,000 and, in addition to his principal claim that the trial judge erred in refusing his requested charge on the applicability of the doctrine of assumption of risk, objects to the judge's instruction that:

'If you find that it was the defendant's gun that shot the plaintiff, then it becomes the duty of the defendant to establish that he was completely without fault; that he was free from any negligence.'

The instruction given was not erroneous. It reflected properly the common law rule governing liability for injuries negligently inflicted by firearms. That rule recently was reaffirmed by this Court in Bauer v. Saginaw Co. Ag. So., 349 Mich. 616 (622, 623) 84 N.W.2d 827, by reference to our earlier decision in Bahel v. Manning, 112 Mich. 24, 70 N.W. 327, 36 L.R.A. 523, 67 Am.St.Rep. 381. In Bahel, at pages 29, 30, 70 N.W. at page 329, the following was stated to be the general rule:

'The general rule, and without reference to this statute, 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 (1st ed), 523. This same principle is stated in 2 Shear. & R., Neg. (4th ed), § 686. In Morgan v. Cox, 22 Mo. 373, 66 Am.Dec. 623, it was held that, 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 inevitable, and utterly without fault on the part of the alleged wrongdoer.'

Here the trial judge correctly stated the rule of law to be applied. Having found the shot that injured the plaintiff came from the defendant's gun, he quoted Felgner: 'it becomes the Duty of the defendant to establish that he was Completely without fault; that he was Free from Any negligence.' (Emphasis added.) This is indeed a strict standard by which to measure the defendant's activities. It does not matter whether the shot fired by the defendant was intentional or unintentional. We are satisfied that the dangers of this activity warrant such strictness.

We think the court erred, however, in holding that plaintiff's contributory negligence barred his recovery. We think that doctrine has no application in cases of injury caused by heedless shooting.

The complaint asserted 'That the injury to the plaintiff is due to the defendants' gross and wanton negligence, misconduct, and breach of duty. * * *'

In considering this allegation the observations in Gibbard v. Cursan (1923) 225 Mich. 311, pp. 320, 321, 322, 196 N.W. 398, p. 401, are pertinent:

'If one wilfully injures another, or if his conduct in doing the injury is so wanton or reckless that it amounts to the same thing, he is guilty of more than negligence. The act is characterized by wilfulness, rather than by inadvertence, it transcends negligence--is different in kind. Where recovery is sought on the theory that the injury was caused by wilful, wanton or reckless misconduct of a defendant, as distinguished from negligence there is no more reason for permitting the defense of contributory negligence than in a case of assault and battery. True, such misconduct in this State and elsewhere usually has been called negligence, the word being qualified by such adjectives as gross, wanton, reckless, or wilful, but this is incorrect and has a tendency to mislead. We quote from a well-written opinion (Atchison, etc., R. Co. v. Baker, 79 Kan. 183, 98 P. 804, 21 L.R.A.,N.S., 427):

Although what is really reckless and wanton misconduct is sometimes spoken of as gross negligence, the expression is everywhere...