Reyher v. Mayne, 12410.

• Citation: 90 Colo. 586,10 P.2d 1109
• Decision Date: 02 May 1932
• Docket Number: 12410.
• Parties: REYHER et al. v. MAYNE.
• Court: Supreme Court of Colorado

10 P.2d 1109

90 Colo. 586

REYHER et al. v. MAYNE.

No. 12410.

Supreme Court of Colorado

May 2, 1932

In Department.

Error to District Court, Kiowa County; James A. Park, Judge.

Action by Walter P. Mayne against Herman Reyher and another. Judgment for plaintiff, and defendants bring error.

Modified and, as so modified, affirmed.

D. B. Kinkaid and Granby R. Hillyer, both of Lamar, and Granby Hillyer, of Denver, for plaintiff in error.

James C. Lang, of Eads, and John H. Voorhees and L. E. Langdon both of Pueblo, for defendant in error.

HILLIARD J.

Mayne plaintiff, sued Herman and Charles Reyher, defendants, for damages of $5,234.50, the general basis for the claim, being that defendants, without right, entered upon certain premises where plaintiff was in the legal enjoyment of hunting privileges, and carelessly, recklessly, and negligently discharged guns at plaintiff's decoy geese, killing some of them, and that shot from one of the discharges struck and injured plaintiff. He also claimed that the circumstances warranted the recovery of exemplary damages of $2,000. Defendants made denial, and alleged that plaintiff's injuries, if any, were the result of his own negligence. On trial to a jury, the plaintiff prevailed, and his recovery was fixed at $700 actual and $300 exemplary damages.

The testimony tended to show that plaintiff, a licensed guide and hunter, had been authorized by the owner to hunt on the premises bordering on the lake where the happenings which form the basis of the action took place; that near this lake there had been constructed blinds or pits for use of hunters in which, with the owner's permission, plaintiff and two others were; that plaintiff had placed twelve live geese, as decoys, harnessed and secured along the shore of the lake, on both sides and in front of the blinds; that suddenly plaintiff heard the fire of guns and observed that his decoy geese to the right were being shot; that he arose in protest and himself received into his face and upper body the discharge of a gun held by the defendant Herman Reyher, who had changed his line of fire so as to bring it to bear on geese directly in front of the pits. It further appeared that the land was fenced and 'posted,' and that on the closed gate which defendants opened for the purpose of entry there was a sign, 'No Hunting or Trespassing Allowed.' Defendants testified that they did not see the sign, and that their attention was fixed on a flock of geese flying above the lake.

Objection is urged to some instructions given, as well as to the refusal of instructions requested. We have examined the record particularly on the points mentioned, and, with the exception hereinafter noted, our conclusion is that the charge fairly presented the issues and correctly and amply stated the law of the case. Detailed discussion would not be of value.

Errors warranting exposition are: (1) Denying change of place of trial; (2) giving judgment against Charles Reyher, who did not fire the shot that resulted in plaintiff's personal injuries; and (3) awarding of exemplary damages.

1. The application for change of place of trial was based on the alleged bias of the people of the county of the venue, of which plaintiff was sheriff, making it impossible, so it was said, to secure an impartial jury. There were affidavits in support of the application as well as against it. We have repeatedly held that, in the absence of abuse of discretion, the trial court's determination of the question is controlling on review. Abshier v. People, 87 Colo. 507, 289 P. 1081; Erbaugh v. People, 57 Colo. 48, 140 P. 188; Kerr v. Burns, 42 Colo. 285, 93 P. 1120; Doll v. Stewart, 30 Colo. 320, 70 P. 326. The application is novel only in that plaintiff was sheriff of the county where the cause of action arose and where he was seeking judicial redress. Such fact, while necessarily challenging the court's best consideration and solemn judgment, constituted only an element, and does not authorize a change as a matter of right. Examination of the record indicates the court sensed the gravity of the point and that in making determination there was no abuse of discretion.

2. Was it error to give judgment against defendant Charles Reyher? As we have seen, it was Herman Reyher, not Charles, who fired the shot that resulted in plaintiff's bodily injury. It appears, nevertheless, that defendants were acting in concert; both were on land where in law they were without right to be and were engaged in shooting in such circumstances that they were violating plaintiff's rights. It would seem that through mere chance one and not the other fired the shot that wounded the plaintiff. Charles as well as Herman fired at and killed some of plaintiff's decoy geese, and, while they persisted in this unlawful act the plaintiff was injured. The destruction of the geese constituted a part of plaintiff's cause of action. He sought recovery for all the damage suffered, and of both...