Felgner v. Anderson

Decision Date01 March 1965
Docket NumberNo. 80,80
Citation375 Mich. 23,133 N.W.2d 136
Parties, 26 A.L.R.3d 531 Louis FELGNER, Plaintiff and Appellee, v. Nelson R. ANDERSON, Defendant and Appellant.
CourtMichigan Supreme Court

Butzbaugh, Page & Byrns, by Lester E. Page, Benton Harbor, for plaintiff and appellee.

Gray, Gray, Globensky & Gleiss, by Henry W. Gleiss, Benton Harbor, for defendant and appellant.

Before the Entire Bench.

SOURIS, Justice (for affirmance).

The only issue presented in this appeal which merits extended discussion concerns the refusal of the trial judge to charge the jury, as requested by defendant, on the doctrine of assumption of risk. Other issues presented need be mentioned only briefly.

About 3 in the afternoon of October 7, 1960, that being the first day of the duck season, plaintiff and defendant were duck hunting in a small flat-bottomed boat. The locale was the Schoolcraft Marsh in Kalamazoo county. The boat was seven feet long and three feet wide. Plaintiff was in the stern, facing the bow. Defendant was seated at the bow, facing the stern. The boat was partly in the water and partly on land, in a duck blind assigned to the two hunters by the 'Fin and Feathers Club.' One of several ducks (the first since the season-starting noon hour) suddenly approached the boat from behind plaintiff, directly toward defendant in the bow. Defendant testified:

'Q. The duck came towards you and curved off to approximately 3:00, is that right?*

'A. Very close to it, yes.

'Q. And then what happened?

'A. Well, I swung with it and shot.

'Q. And then what happened?

'A. Well, having the duck coming and changing as fast as it did, I swung so fast that when I shot----

'Q. Did you fall out of the boat?

'A. I fell right out of the boat.

'Q. And were you completely out of the boat?

'A. I was completely out of the boat. In fact, my shoulders were laying right in the water, and the water was ice cold. It was really cold.

'Q. That, you remember very distinctly?

'A. Yes, I do. In fact, I talked with Louie about it after I got back in.

'Q. Now, after shooting at the duck, did you pump the gun again?

'A. No, I did not. To me, I say no.

'Q. And after you fell out of the boat, or as you were falling, did your gun discharge again?

'A. No, it did not.

'Q. Do you think you would have known it? You would have felt it, or heard it?

'A. Yes, I am quite positive. I am positive I would have known it, in my mind. * * *

'Q. Now, Mr. Anderson, are you positive that your 12-gauge Winchester pump shotgun did not discharge a second ond time and strike Louis Felgner in the leg?

'A. I am positive in my mind that it did not.'

Plaintiff testified.

'Well, then I was sitting towards the side of the boat. I had my knee on the bottom of the boat and facing off to this side, to the left side, and I was watching the duck when Mr. Anderson started to stand up, so I put my gun up because I was already in place, and waited for the ducks to come, and I heard him shoot, but I didn't see no ducks.

'Q. Which side of the boat were you stationed at as you look at it forward, like this (indicating)?

'A. When the ducks were coming I was sideways in the boat, facing this way (indicating).

'Q. And where did the ducks come from?

'A. Well, the ducks were coming from the bow of the boat, but I never seen them after that.

'Q. Well, then what happened after the ducks came?

'A. Well, after he made that one shot, the boat started to wobble, so then I turned around to my right, turned around this way to my left, and there he was. He was out of the boat and in the water, and he was trying to catch himself on some cattails, and that's when his gun went off.

'Q. Then what happened?

'A. Well, when his gun went off and I seen that fire come out of the gun, I was hit, just like that.

'Q. Now, was he inside the boat, or outside the boat?

'A. He was outside the boat.

'Q. Did his gun go off once, or twice?

'A. Well, once when he shot at the ducks, and after he was in the water, that second shot.'

Plaintiff was hit full in the left leg just below the knee. The surgeon described the would as 'about the size of a man's closed fist.' The leg was amputated just above the knee. There was testimony, based upon the size and nature of the hole in plaintiff's high boot, that the shot which injured him had to be fired at close range, estimated at about seven feet.


Defendant has appealed from an adverse jury verdict and judgment for $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 out 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. Soc., 349 Mich. 616, 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. 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, 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 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 unavoidable and utterly without fault on the part of the alleged wrongdoer.'

Lest the foregoing language quoted from Bahel be incorporated uncritically in a jury instruction hereafter, it should be noted that it is cast in language suitable for communication between lawyers, but hardly suitable for jury instruction purposes. In Frederick v. City of Detroit, 370 Mich. 425, 121 N.W.2d 918, we held it would have been error to charge the jury that the defendant in a negligence case owed the plaintiff a 'high degree of care'. The neasure of duty of a negligence-charged defendant is, as stated in Frederick, at page 431, 121 N.W.2d at page 920, 'reasonable care appropriate to the circumstances of the case, a standard of negligence which allows the fact finder to determine that some factual circumstances reasonably require greater or lesser diligence than do other circumstances in order to constitute reasonable or due care.' In a legal opinion addressed to Bench and Bar it is not inappropriate to speak in terms of degrees of care and caution, as a form of legal shorthand; but when a jury of laymen is charged on the common law of negligence, the charge must be cast only in terms which a jury will understand impose a standard measured by that which a reasonably prudent man would regard as reasonably required by the specific factual circumstances of the case.


Defendant also alleges error sufficiently prejudicial to require reversal of this jury verdict on the ground that the trial judge expressed the thought during voir dire examination that an injury such as plaintiff suffered could not have occurred but for somebody's fault. Before the voir dire examination had ended, the following statement was made by the trial judge:

'THE COURT: Counsel has called my attention to a statement I made with reference to my opinion regarding the use of firearms and injury by the use of firearms. Now, that does not in any manner bind the jury. It isn't given as an instruction, and I don't think that the jury should pay any attention to what the court says with reference to any kind of fact. In fact, I'll instruct you that anything I have said or may say during the proceedings in this case is not intended to bind in any manner, or to present an opinion on what the facts are here.

'Now, disregard, in other words, what I said with reference to the use of firearms and the cause of an accident by firearms.

'All right, proceed.'

Apparently satisfied with the attempted correction of the patently improper comment made by the trial judge, the matter was no further pursued by defendant's counsel notwithstanding his present claim that the error charged was so prejudicial that defendant was thereby denied a fair trial. The record before us, however, discloses neither a motion for mistrial at this early stage in the proceedings nor a subsequent request for jury instruction to protect the defendant against the harm he now alleges was caused him by the judge's statement. As we have recently reiterated, in Smith v. Musgrove, 372 Mich. 329, at 338-340, 125 N.W.2d 869, at 874, the time for correction of such errors, if they can be corrected, is 'when time yet remains to set things right in the jury room', quoting Gilson v. Bronkhorst, 353 Mich. 148, 90 N.W.2d 701, cited in Reetz v. Rigg, 367 Mich. 35, at 41, 116 N.W.2d 323. See, also, Herbert v. Durgis, 276 Mich. 158, 267 N.W. 809


Relying upon Waltanen v. Wiitala, 361 Mich. 504, 105 N.W.2d 400, decided by us in 1960, defendant claims reversible error in the trial judge's refusal of his request to charge the jury that plaintiff had assumed the risk of the injuries incurred and that plaintiff's assumption of such risk was, for defendant, a defense to the charge of negligence which he was entitled to have submitted to the jury. Normally, the applicability in negligence cases of the doctrine of assumed risk having been considered and reaffirmed by this Court so recently, we would take little time to reverse...

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