Hooper v. Mougin

• Decision Date: 09 December 1971
• Docket Number: No. 111,111
• Citation: 263 Md. 630,284 A.2d 236
• Parties: Joseph H. HOOPER, Jr. v. Edward J. MOUGIN and Anne W. Mougin.
• Court: Maryland Court of Appeals

Page 630

263 Md. 630

284 A.2d 236

Joseph H. HOOPER, Jr. v. Edward J. MOUGIN and Anne W. Mougin.

No. 111.

Court of Appeals of Maryland.

Dec. 9, 1971.

S. Herbert Harris, Baltimore (Edward Walsh and William O. Goldstein, Baltimore, on the brief), for appellant.

John G. Prendergast, Jr., Baltimore (John H. Bolgiano and Smith, Somerville & Case, Baltimore, of the brief), for appellees.

Argued before BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

On the morning of February 27, 1969 Dr. Joseph H. Hooper, Jr., appellant, was hunting on the River Hill Game Farm near Columbia, Maryland. Unfortunately, he was not a 'lonely hunter that hunts on a lonely hill,' ¹ or else the tragic accident which is the subject of this dispute would never have occurred. Instead, Hooper and his colleague, Dr. Albert Montague were accompanied by a professional guide, the appellee in this case, Edward Mougin and his pointer dog. While they were in the field pursuing their sport, Dr. Hooper fired at a quail but pellets from this shot struck appellee and caused the loss of his left eye. As a result Mougin and his wife sued Hooper in the Circuit Court for Baltimore County (Turnbull, J.) where a jury awarded them substantial damages. From the resulting judgment Hooper appeals arguing reversible error was committed when the trial judge instructed the jury that as a matter of law appellee was not contributorily negligent, and when he failed to give an instruction that as a legal proposition Mougin assumed the risk of injury. Appellant alternatively claims that even if assumption of risk was a jury issue, the court's instructions concerning this defense were 'erroneous, improper and prejudicial.' We find no validity in any of these contentions and affirm the judgment.

The evidence here indicates that prior to the accident the threesome had been hunting that day for over two hours, during which time they bagged eight or nine pheasant but missed many more. Their search for game eventually led them to a wooded draw 'that stuck out like a finger' into a large open field covered with underbrush but which was free from visual obstruction once outside the tree line of the woods. This draw was part of a woodland bordering that field. Dr. Hooper testified that while in the draw he became apprehensive of danger because of the thickness of the trees and so went into the open field. There, he took a position outside the tree line, with his back to the woods, hoping that from this vantage point he could get a good shot at any bird flying in front of him. Moments later, Dr. Montague and the guide emerged from the draw and also stood about the same distance from the tree line as Hooper but thirty yards to his left. At this time Mougin's dog was on point in front of all three men and slightly to the left of his master. Appellee was instructing Montague to flush the quail his dog had located, but before the doctor could do so a single bird flew out. It did not fly where Dr. Hooper expected but instead headed roughly parallel to the woods, past Montague and Mougin, straight toward appellant. Hooper caught a glimpse of the quail out of the corner of his eye, quickly pivoted to his left and without hesitation shot in the direction of his companions, even though he professed a prior knowledge to their beding within his general line of fire. Pellets from the shell hit both men in the face causing some minor discomfort to Montague but seriously injuring Mougin.

With these facts, we now analyze the pertinent law in terms of appellant's claims of error, all of which are related to the trial court's instructions concerning contributory negligence and assumption of risk. The distinction between these two tort concepts is slight, often difficult to pinpoint and usually of little practical significance; however, this Court has recognized that some legal difference exists. To be contributorily negligent, a plaintiff must either perform or fail to perform an act which is a proximate cause of the particular injury of which he complains. His conduct is judged by a norm of ordinary care and the failure by a plaintiff to meet this standard constitutes contributory negligence barring his recovery. Christ v. Wempe, 219 Md. 627, 150 A.2d 918 (1959); Potts v. Armour & Co., 183 Md. 483, 490, 39 A.2d 552 (1944); Warner v. Markoe, 171 Md. 351, 189 A. 260 (1937). On the other hand, a plaintiff is said to have assumed the risk of injury when, with full knowledge and understanding of an obvious danger, he voluntarily abandons his right to complain by exposing himself to that particular risk. Kasten Constr. Co. v. Evans, 260 Md. 536, 544, 273 A.2d 90 (1971); Gibson v. Beaver, 245 Md. 418, 421, 226 A.2d 273 (1967); Bull Steamship Lines v. Fisher, 196 Md. 519, 525-526, 77 A.2d 142 (1950).

The existence of contributory negligence, as with assumption of risk, ordinarily is a jury question and both are affirmative defenses with the burden of proof placed on the defendant. Abraham v. Moler, 253 Md. 215, 218, 252 A.2d 68 (1969) and cases cited therein. However, when undisputed facts permit only one reasonable conclusion we have often approved a determination of these issues by the court as a matter of law. Kasten Constr. Co. v. Evans, supra at 541, 273 A.2d 90; Chalmers v. Willis, 247 Md. 379, 385, 231 A.2d 70 (1967); Wheeler Transportation Co. v. Katzoff, 242 Md. 431, 435-436, 219 A.2d 250 (1966); Goldman v. Johnson Motor Lines, Inc., 192 Md. 24, 31, 63 A.2d 622 (1949).

We initially consider appellant's claim that the issue of contributory negligence should have been submitted to the jury for determination. He contends under this doctrine that Mougin failed to exercise that degree of care ordinarily utilized by a hunting guide under similar circumstances. However, since he has failed to offer any evidence as to what customarily constitutes reasonable care on the part of a guide, Mougin's acts must be measured as if he were only an unskilled person without special expertise. The evidence taken in a light most favorable to Dr. Hooper does not show that appellee failed to meet this test. Not every act or omission of a plaintiff can be labeled contributory negligence so as to bar recovery. Before this doctrine can be successfully invoked it must be demonstrated that the injured party was or should have been aware of a dangerous situation and then failed to exercise ordinary care to protect himself. Rogers v. Frush, 257 Md. 233, 239, 262 A.2d 549 (1970); Tie Bar, Inc. v. Shartzer, 249 Md. 711, 715-716, 241 A.2d 582 (1968); Sanders v. Williams, 209 Md. 149, 152, 120 A.2d 397 (1956). The record here is totally devoid of any proof that Mr. Mougin committed or omitted any act which directly contributed to produce his injury. And we discern nothing beyond a mere scintilla of evidence, amounting at most to conjecture, that could lead reasonable minds to differ about this result. Goldman v. Johnson Motor Lines, Inc, supra; Consol. Gas Etc. Co. v. Rudiger, 151 Md. 226, 238-240, 134 A. 326 (1926) and cases cited therein. To hold otherwise would amount to the strained conclusion that appellee was contributorily negligent simply because he was present at the scene of the accident.

Appellant next suggests that Mougin, as a paid hunting guide, assumed the risk as a matter of law, of being accidentally shot during the hunting expedition. We disagree. As stated in Kasten Constr. Co. v. Evans,supra at 544, 273 A.2d at 94, quoting from Gibson v. Beaver, 245 Md. 418, 421, 226 A.2d 273, 275 (1967):

"When the plaintiff enters voluntarily into a relation or situation involving obvious danger, he may be taken to assume the risk, and to relieve the defendant of responsibility. Such implied assumption of risk requires knowledge and appreciation of the risk, and a voluntary choice to encounter it.' Prosser, Torts, § 55, p. 303 (2d Ed. 1955).

"In determining whether a plaintiff had knowledge and appreciation of the risk, an objective standard must be applied and a plaintiff will not be heard to say that he did not comprehend a risk which must have been obvious to him. As Prosser in the work cited puts it at p. 310:

"* * * In the usual case, his knowledge and appreciation of the danger will be a question for the jury; but where it is clear that any person of normal intelligence in his position must have understood the danger, the...