Koontz v. Whitney

• Decision Date: 29 April 1930
• Docket Number: No. 6634.,6634.
• Citation: 153 S.E. 797
• Court: West Virginia Supreme Court
• Parties: KOONTZ. v. WHITNEY.

153 S.E. 797

KOONTZ.

v.WHITNEY.

No. 6634.

Supreme Court of Appeals of West Virginia.

April 29, 1930.

Syllabus by the Court.

Reasonable care and negligence are relative terms, and the degree of care required of a sportsman using a firearm must be commensurate with the dangers to be avoided.

[Ed. Note.—For other definitions of "Ordinary Care, " see Words and Phrases.]

Syllabus by the Court.

An action for personal injuries is regarded as one of indeterminate damages, the law giving no specific rule of compensation, and the verdict of the jury will not be set aside as inadequate, unless the recovery is so small as clearly to indicate that the jury was influenced by improper motives.

Syllabus by the Court.

A case where the verdict is not warranted under the evidence.

HATCHER and LIVELY, JJ., dissenting.

Error to Circuit Court, Fayette County.

Action by George Koontz against Charles E. Whitney. Judgment for plaintiff, and plaintiff, claiming the amount awarded inadequate, brings error.

Verdict set aside, and cause remanded for new trial.

W. H. Haynes and C. R. Summerfleld, both of Fayetteville for plaintiff in error.

Hubard & Bacon, of Fayetteville, for defendant in error.

LIVELY, P.

On October 1, 1928, plaintiff had climbed ten or twelve feet above the ground in some bushes or saplings in the edge of a woodland in a place remote from dwellings, and was picking wild grapes in a basket; defendant, while hunting squirrels with a shotgun loaded with No. 4 squirrel shot, and perceiving a movement in the bushes and grapevines about seventy-five or eighty feet away from where he was standing, at first concluded it was a pheasant in the grapevines, and a minute or so later upon seeing a small gray object therein, concluded it was a squirrel, and fired thirty-seven shot into plaintiff's body, right arm, and leg. Thirty-two shot entered the right thigh, four shot entered the right arm, and one shot entered the body. Defendant summoned aid immediately, and went with him to the hospital; seven of the shot were removed, and he was discharged therefrom October 11th. Defendant paid the hospital charges.

This action is to recover damages for the injuries thus inflicted and charged to have been wrongfully, carelessly, negligently, and willfully inflicted. The jury awarded $50 damages. Plaintiff moved to set aside the verdict on the ground that it was inadequate, and contrary to the law and evidence; because of error in the instructions; and because of rejection of proper, and admission of improper evidence. The motion was overruled and judgment entered upon the verdict. Plaintiff prosecutes error.

We will consider the alleged errors in the order set out in plaintiff's brief. The first error is based on the rejection of evidence relating to the location of the basket hung up by plaintiff in the grapevines at the time he was shot. The rejection of this evidence was excepted to at the time it was offered; there was no special bill taken, nor was it made a basis of the motion to set aside the verdict, and therefore cannot be considered here. Dransfield v. Boone-Armstrong Motor Co., 102 W. Va. 370, 135 S. E. 286; State v. Noble, 96 W. Va. 432, 123 S. E. 237.

The second and third assignments of error, raised by the instructions, involve the standard of care to be exercised by a person using a firearm while hunting. Plaintiff's theory, as expressed in instruction No. 5, placed a duty upon defendant "to make the necessary investigation to ascertain whether or not the object he was shooting at was a squirrel." The court refused the instruction, amended it, and, as given, required the defendant to exercise that degree of care exercised by a reasonably prudent man under all the circumstances. Did the court err in the standard of duty required of defendant? At common law, where one was injured by the discharge of a gun in the hands of another, the only de-fense available was that defendant was utterly without fault. The modern doctrine, however, has modified this rule, and places the liability upon negligence. Annear v. Swartz, 46 Okl. 98, 148 P. 706, L. R. A. 1915E, 267; McLaughlin v. Marlatt, 296 Mo. 656, 246 S. W. 548, 549. The cases reflect a contrariety of opinion on the standard of duty required of a person using a firearm while hunting. The plaintiff contends that defendant's use of a dangerous instrument required him to use extraordinary care or the highest degree of care in the use thereof.

We cannot subscribe to the theory that defendant owed "the highest degree of care." As stated in Rudd v. Byrnes, 156 Cal. 636, 105 P. 957, 959, 26 L. R. A. (N. S.) 134, 20 Ann. Cas. 124: "The rules of law governing actions for injuries caused by the discharge of firearms are not different from the rules governing actions for any injuries claimed to have been inflicted by the negligence of the defendant." In Merrill v. Torpedo Co., 79 W. Va. 669, 92 S. E. 112, L. R. A. 1917F, 1043, in considering an instruction which approved the term "highest degree of care, " where defendant was in possession of nitroglycerin, the court stated: "The term highest degree of care, ' as used in the instruction, are qualified by the phrase that follows them, 'to take every reasonable precaution to prevent explosion.'" Many courts require a "high degree of care." Are the terms "a high degree of care" and "extraordinary care" inconsistent with the instructions given by the lower court? We think not. Ordinary care is that degree of care which, under the same or similar circumstances, would ordinarily be exercised by an ordinarily prudent person. 45 C. J. 683. In McLaughlin v. Marlatt, supra, it is stated that, "owing to the danger attendant upon the use of firearms, ordinary care is a very high degree of care." It was held in Morrison v. Power Co., 75 W. Va. 608, 84 S. E. 506, 508, that in handling so dangerous an agency as electricity "a high degree of care is not unreasonable." But the court stated: " 'Reasonable care' and 'negligence' are relative terms and depend upon the circumstances and exigencies of the particular case. The greater the danger to others from failure to exercise care, the greater is the degree of care required." The standard of duty is constant; the degree of care to determine the duty is variable and is dependent upon the circumstances, such as the nature of the instrumentality, the time, place, and status of the person injured. Note, 53 A. L. R. 1205. The circumstances increase the degree of care; the care is always commensurate with the danger likely to be produced by negligence. "The test of care is not whether in degree it should be slight, ordinary, or extreme care, but commensurate care, due care under the circumstances." Campbell v. Railroad Co., 107 Minn. 358, 360, 120 N. W. 375, 376, 22 L. R. A. (N. S.) 190. See also Markie wicz v. Thompson, 220 App. Div. 311, 221 N. V. S. 590; O'Barr v. U. 3 Okl. Cr. 319, 105 P. 988, Syl. 4, 139 Am. St. Rep. 959; Bizzell v. Booker, 16 Ark. 308; Webs'ter v. Seavey (N. H.) 138 A. 541, 53 A. L. R. 1202. This discussion likewise disposes of plaintiff's criticism of defendant's instructions 2, 2a, 6, and 10.

The plaintiff also assigns as error the giving of defendant's instructions 3 and 9, which read as follows:

Instruction No....