McCoy v. DeLiefde, 71

Decision Date13 July 1965
Docket NumberNo. 71,71
Citation135 N.W.2d 916,376 Mich. 198
PartiesRobert McCOY, Plaintiff and Appellant, v. James Jacob DeLIEFDE, John DeLiefde and James Friar, Defendants and Appellees.
CourtMichigan Supreme Court

Small & Shaffer, Benton Harbor, Attorneys for Plaintiff and Appellant, Robert McCoy.

Fredrick W. Poel, Grand Rapids, Attorney for Defendant-Appellee, John DeLiefde.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells, Grand Rapids, of counsel), Attorneys for Defendant-Appellee, James Friar.

Before the Entire Bench.

KELLY, Justice.

Plaintiff's declaration (filed June 24, 1960) in four counts charged James Jacob DeLiefde in count one, John DeLiefde in count two, and James Friar in count three, of injuring plaintiff, while pheasant hunting, by 'negligently, carelessly, and recklessly' firing a shotgun, resulting in the shot striking and injuring plaintiff, and in count for made the same charge against all three defendants on the theory of joint liability.

January 2, 1963, defendant John DeLiefde and James Friar filed motions for summary judgment alleging in the affidavit in support thereof that plaintiff's August 15, 1962, deposition (requiring 28 pages of the printed appendix) established under oath: 'That said Robert McCoy testified, of affiant's own knowledge, under oath, at said deposition that said James Friar did not shoot him, and that it was his claim that John DeLiefde did not shoot him and there was never any question in his mind but what it was James Jacob DeLiefde who shot him, and he knew that when the suit was started and also when the declaration was prepared; that he knew definitely from his own observation that John DeLiefde or James Friar could not have shot him; tht the shot came from the exact position where Dr. James Jacob DeLiefde was standing.'

In a written opinion of the court on the motions for summary judgment, Hon. Raymond W. Fox, Circuit Judge, held:

'By a deposition of the plaintiff under date of August 15, 1962, plaintiff has positively stated under oath that it was defendant James Jacob DeLiefde who shot him. * * *

'At the hearing of the motion for summary judgment, an affidavit was filed by Zoe E. Shaffer, attorney for the plaintiff. In this affidavit counsel swears that at least three witnesses will testify that the shot which injured plaintiff came from the location of the three defendants but that they were uncertain as to which of the three shot, but that they knew one of them did. This, of course, is negative testimony to the degree that the wintesses cannot say which of the three shot, but plaintiff has testified by deposition that he knows which of the three shot and that it was Dr. James DeLiefde.

'There are no contradictory statements by the plaintiff, nor has he filed any affidavit contradicting his testimony in the deposition. Under such circumstances, it is the opinion of this court that plaintiff is bound by his own testimony. See 80 A.L.R. 625, 50 A.L.R. 980, and see also Bolman v. Louisville and Nashville Railroad, [6 Cir.] 295 F.2d 809. * * *

'However, the rule is clear and unambiguous, and in the absence of any affidavit by either the plaintiff or any witness in his behalf, it seems to follow that the motion for summary judgment should be granted. For the foregoing reasons, as to counts 2 and 3 a judgment of no cause of action is rendered in accordance with Rule 117.'

Appellant states:

'We submit this ruling (the trial court's) is clearly error. Appellant admits he stated in the discovery deposition that he claimed James Jacob DeLiefde shot him but that statement when viewed as a whole makes it abundantly clear that this statement is the conclusion of appellant based on what he observed at the time of the accident. At the same time appellant also stated that he did not see the shot fired, that he did not see the gun, and that he did not see who shot the gun, that he heard the shot, and based on what he hard and saw before the shot was fired appellant concludes the shot was fired by defendant James Jacob DeLiefde.'

The deposition discloses an unusually clear and positive recitation as to what occurred at the time of and just previous to the accidental shotting.

In this deposition plaintiff relates that he was not acquainted with the three defendants when he first saw them 800 to 900 feet west of him; how he watched the three spread out 20 or 30 feet apart as each proceeded east toward him, verring first to the south and then to the north, and then finally coming together as they crossed a ditch, passing him at that time about 15 feet away, them turning east into the cornfield and again spreading out 25 feet apart as they turned south; how he moved south following them for a distance of about 150 feet, being about 15 feet behind them, and during this time he could clearly see all three as he could 'see right across the corn field; the corn was dry and hanging so you could see'; how a black dog was following at Dr. DeLiefde's heels at all times; how Dr. DeLiefde was dressed, wearing 'a red leather cap' and that he had on 'real thick glasses, thick rims' and had a 'bushy long hair cut'; that plaintiff was standing facing east when he was shot; that he heard Dr. DeLiefde's son holler 'hen pheasant' and observed the doctor's dog walking around the doctor counterclockwise, with the doctor turning his body looking down at the dog; that he saw Dr. DeLiefde 'instantly' before the shot was fired that almost immediately hit him; that while he did not see the doctor shoot he was positive the doctor shot him as he had 'hunter a long time and know where a shot comes from'; that he knew where all three defendant were positioned when the shot was fired and he knew it had to be the doctor that shot him.

Appellant's counsel explains as follows:

'Appellant's counsel, not appellant, was the pleader in the case. Appellant's lawyer pleaded inconsistent causes of action because after listening to the statement of appellant and the other witnesses the lawyer was confronted with uncertainty as to the facts and occurrences which caused appellant's injury. One fact came through all the statements. One of the three defendants fired the shot which injured appellant, but it is uncertain who fired the shot.'

No explanation, however, is offered why the names of the witnesses are not divulged or why their affidavits were not offered to sustain appellant's counsel's contention.

The court did not err in holding that 'in the absence of any affidavit by either the plaintiff or any witness in his behalf,' judgment of no causes of action is rendered as to counts two and three.

Count four charging joint liability is based on the charge that 'defendants were engaged jointly in the negligent activity of hunting in a corn field wherein their visibility was impaired,' and 'that all of said defendants and each of them knew or should have known that it was extremely dangerous to the rights and safety of plaintiff and others to hunt and fire a gun under such circumstances and that to do so would be acting in utter disregard of the rights and safety of plaintiff and others, that nevertheless all of the said defendant, without due caution and regard for the rights and safety of plaintiff and others did hunt in said corn field, together in concert and with a common design.'

In the opinion holding that the motions of John DeLiefde and James Friar for summary judgment should also be granted as to count four, the court held:

(a) 'The rule as to joint liability seems to be that where two or more persons are negligent and plaintiff does not know which party's negligence caused his injury, that plaintiff can recover of both,' would not apply under the court's ruling in re counts two and three finding 'from the deposition of plaintiff that it was Dr. James Jacob DeLiefde' who shot at the pheasant and hit plaintiff;

(b) 'There is not claim that hunting in a cornfield constitutes a violation of any statute or ordinance, nor is there any claim that it is a criminal or unlawful act. There is no allegation that the defendants John DeLiefde and/or James Friar concurred in the unlawful act of shooting a hen pheasant, nor is there any allegation or claim that they concurred in James Jacob DeLiefde shooting, if he did, without observing where the plaintiff was.'

Referring to plaintiff's attorney's affidavit in opposition to the motions to the effect that the corn was 'thick, in excess of seven feet high,' appellees state:

'The affidavits are not made on the personal knowledge of the plaintiff's attorney; that are based at best on hearsay of other witnesses. No affidavit of any of...

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    ...that persons acting in concert or with a common design or purpose are responsible for each other's acts. See McCoy v. DeLiefde, 376 Mich. 198, 135 N.W.2d 916, 920-21 (1965). A plaintiff is entitled to recover on a concert of action theory if it proves that the defendant acted tortiously pur......
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