Orser v. Vierra

• Decision Date: 18 July 1967
• Citation: 252 Cal.App.2d 660,60 Cal.Rptr. 708
• Court: California Court of Appeals
• Parties: Karen ORSER, by and through her Guardian at Litem, Olga McMorrow, and Verna Orser, Plaintiffs and Appellants, v. Virgil VIERRA et al., Defendants, Richard George, Vincent Hughes and Norman Jacobson, Respondents. Karen ORSER, etc., et al., Plaintiffs and Appellants, v. Virgil VIERRA et al., Defendants, Harry James, Jr. and J. R. Young, Individually and doing business asYoung's Wild Fowl Gun Club, Respondents. * Civ. 11310, 11420.

Page 708

60 Cal.Rptr. 708

252 Cal.App.2d 660

Karen ORSER, by and through her Guardian at Litem, Olga McMorrow, and Verna Orser, Plaintiffs and Appellants, v. Virgil VIERRA et al., Defendants, Richard George, Vincent Hughes and Norman Jacobson, Respondents.

Karen ORSER, etc., et al., Plaintiffs and Appellants, v. Virgil VIERRA et al., Defendants, Harry James, Jr. and J. R. Young, Individually and doing business asYoung's Wild Fowl Gun Club, Respondents. ^*

Civ. 11310, 11420.

Court of Appeal, Third District, California.

July 18, 1967.

Ralph D. Drayton, Sacramento, for appellant Karen Orser.

Harold Wilsey, Jr., Colusa, and John L. Feeney, Willows, for plaintiff-appellant Verna Orser.

Merlo & Blackstock, Chico, for respondent George.

Fitzwilliam, Memering, Stumbos & DeMers, Sacramento, for respondent Hughes.

Price, Burness & Price, Chico, for respondent Jacobson.

Rich, Fuidge, Dawson, Marsh & Morris, Marysville, for respondent James.

Neil J. Cooney, Colusa, for respondent Young.

PIERCE, Presiding Justice.

Plaintiffs are the heirs of Byron W. Orser. Decedent was shot accidentally by one of two of the named defendants: Vierra of Jacobson. Plaintiffs filed this wrongful death action against all defendants. They appeal from summary judgments in favor of four of the above named defendants: George, Hughes, James and Young. They also appeal from a summary judgment in favor of Jacobson, a fifth defendant. As regards this judgment, the court denied said defendant's motion for summary judgment on one of the counts of the complaint and granted it as to two others. ¹

The complex (but interrelated) questions which we discuss on this appeal, some applicable to some of the defendants, none applicable to all, relate to the following theories of tort liability: (1) the applicability of the rule of Summers v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1, 5 A.L.R.2d 91 which, loosely stated, is that if a person is injured (or killed) because of the negligence of one of two or more persons acting in unison, the actual tortfeasor being unknown, the burden is upon each of the actors to absolve himself of responsibility; (2) the closely-related question of the applicability of the so-called 'concert of action' doctrine under which where several people act in concert illegally in pursuance of a common design and one is directly responsible for a resulting injury all are jointly liable; (3) the question of whether and under what circumstances, certain members of an unincorporated association can be held responsible for the tortious act of another member; (4) the question of the circumstances, if any, under which a landowner or possessor of lands is responsible for the acts of others permitted to use said lands; and (5) the question of the applicability of the so-called 'ultra-hazardous activity' doctrine as stated in sections 519 and 520 of the Restatement of Torts (see footnote 7, infra). (It is conceded a change of California case law would be needed to make that doctrine applicable under the facts of this case.)

We will not relate in detail the rules governing summary judgments under Code of Civil Procedure, section 437c. They have been stated and restated by the appellate courts of this state too frequently to require more than a reference to Mr. Witkin's collection of the cases which set forth these (See 2 Witkin, Cal.Procedure, Proceedings Without Trial, secs. 75, 79, pp. 1711, 1716.) We point out in passing, however, that in this appeal we have an ideal illustration of the purposes for which the summary judgment procedure was designed. The facts material to the determination of the issues stated above as to certain of the defendants are substantially uncontested. Summary disposition will save the courts and litigants time and money. (See Aguirre v. Southern Pacific Co. (1965) 232 Cal.App.2d 636, 43 Cal.Rptr. 73, headnote 4.) These facts are: Orser was killed at approximately 1:15 to 1:30 p.m., April 28, 1963, while repairing a rice checker on a farm leased by J. W. Sharp from Zumwalt (see infra). The cause of death was a bullet fired from a pistol. The bullet was removed during an autopsy, and it and a certain pistol (with others) were examined at the Criminal Investigation and Identification (C.I. & I.) laboratory in Sacramento, where it was determined the bullet had been fired from that pistol. At or about the time of death Vierra and (possibly) Jacobson had each fired that specific pistol under circumstances to be described.

The approximate time of death was fixed as follows: Sharp and his wife had driven along a road close by the farm equipment on which Orser was working. This was approximately at 1 p.m. Orser was then at work welding. Sharp stopped and talked with him for a few minutes then drove on. Perhaps 10 minutes later, one James Stegall drove down the same road with his son. He discovered Orser wounded by a gunshot but still alive, lying on the ground bleeding. Sharp was summoned and when the two men returned Orser was dead. All of the times given above are estimates.

A description of the scene of the shooting will make the somewhat abstruse circumstances attending it more comprehensible. At all times with which we are concerned defendant George R. Zumwalt Co., a corporation, was the owner, and defendant I. G. Zumwalt Co., a copartnership, was lessee (hereinafter 'Zumwalt') of all of the real property involved. One of these properties was the Butler Ranch. On it is a building which sometimes had been used as a clubhouse. Use of the building had been by hunters who had acquired duck hunting privileges elsewhere from defendant J. R. Young. Young in turn, had acquired these duck hunting privileges from Zumwalt. ² Two of the named defendants, Hughes and James, were members of an unincorporated association so loosely organized it had had but one meeting and had elected no officers. Defendant Jacobson was a prospective member of the club, although he denied actual membership. Vierra had been invited to join; he had not accepted. A check to Zumwalt for rental of the clubhouse had been made out by James for the club but had not been cashed at the time of the shooting accident. The club members believed their lease of the clubhouse, obtained through Young, included an off-season right to repair the building. Hughes, James, Vierra, Jacobson and George, a guest of James, were spending the weekend at the clubhouse. The purpose of the trip was to repair the clubhouse but some had brought weapons and shot at frogs and mudhens in and about a pond which adjoins the clubhouse.

Immediately adjacent to the clubhouse on the Butler Ranch is a pond. Several airphotos in evidence show this pond as describing an arc extending from the west eastward to a point next to the clubhouse, thence northeast to its widest point, terminating at a road which runs along the southerly bank of an east-west irrigation canal. Across this canal and along its northerly bank is another dirt road. It was along the latter road Sharp and Stegall were riding. Orser was doing his welding repair work north of and close to this road at a point due north of the northerly terminus of the pond on the Butler Ranch. (That place is south of the Sharp farm and the two are separated by the irrigation canals and the two roads described.) The week-end had commenced on the afternoon of Saturday, April 27. All persons present at the time of Orser's death Sunday afternoon had at one time or another during the weekend engaged either in shooting at tin cans, frogs or mudhens. Rifles or pistols were the weapons used. During the period when Orser must have been shot, Vierra and James, and possibly Jacobson, ³ were firing at a mudhen. Only Vierra and (possibly) Jacobson used the fatal pistol. James, who admittedly fired alternately with Vierra, used a rifle (and thus did not hit Orser). The mudhen's course of flight was along the described pond and in a direct line of fire from the point (near the clubhouse) where the three shooters were located to the point where Orser was working.

The facts stated above appear without conflict from the affidavits and depositions before the trial court when the summary judgments were granted.

SUMMERS V. TICE AND THE CONCERTED ACTION THEORY.

In Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, 5 A.L.R.2d 91 plaintiff and the two defendants were hunting quail in open country. Both defendants used shotguns firing shells containing 7 1/2 size shot. One of the defendants flushed a quail. Both defendants shot at it, and one of them--it is not known which--hit plaintiff who was ahead of them. At a court trial judgment was against both defendants. It was also held plaintiff was not guilty of contributory negligence. The Supreme Court, affirming, relied upon Oliver v. Miles, 144 Miss. 852, 110 So. 666, 50 A.L.R. 357 (where the facts stated were substantially identical to the Tice case) and upon Restatement of Torts, section 876, subsections (b) and (c). ⁴ It found a reason for its holding in Wigmore, Select Cases on the Law of Torts, section 153: "* * * The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves."

Summers cites, among other cases, Saisa v. Lilja (1 Cir. 1935) 76 F.2d 380. There the death of plaintiff's intestate was directly caused by the immoderate speed of one Keefe racing with defendant on a public highway. There was evidence defendant had abandoned the race before Keefe had struck decedent. Keefe did not know that when he continued the race. The district judge had instructed the jury that under those circumstances defendant would be liable. The circuit court on appeal approved the instruction, affirmed the trial court's judgment. The court referred to the...