Seabolt v. Cheesborough, s. 47354

• Decision Date: 10 October 1972
• Docket Number: No. 3,Nos. 47354,47355,s. 47354,3
• Parties: Robert L. SEABOLT v. Frank W. CHEESBOROUGH. John T. SEABOLT v. Frank W. CHEESBOROUGH
• Court: Georgia Court of Appeals

Page 238

193 S.E.2d 238

127 Ga.App. 254

Robert L. SEABOLT v. Frank W. CHEESBOROUGH.

John T. SEABOLT v. Frank W. CHEESBOROUGH.

Nos. 47354, 47355.

Court of Appeals of Georgia, Division No. 3.

Oct. 10, 1972.

James R. Venable, H. G. McBrayer, Jr., Margaret Hopkins, Atlanta, for appellants.

Fulcher, Hagler, Harper & Reed, William C. Reed, Augusta, for appellee.

Syllabus Opinion by the Court.

CLARK, Judge.

Bang! went the rifle as the hunter shot at a wild turkey. The elusive bird was missed, the velocity of the bullet then speeding it through the trunk of a small tree from which fragments of the shattered projectile ricocheted and hit two other nimrods who were themselves in the underbrush and previously unseen by the shooter. Thus was provided the setting for this case of first impression on the Georgia law applicable to a sport so popular in our State that in the last fiscal twelve-months period our Game and Fish Commission issued 314,720 resident and 10,918 nonresident hunting licenses. ¹

During the legal turkey hunting season two brothers, J. T. and R. L. Seabolt, arrived around 6:15 A.M. in the hunting area in McDuffie County and began to wend their way along Hart Creek into the woods. As they followed the creek searching for their quarry and sounding their yelpers (female turkeys yelp while males gobble) they stopped three different times, remaining at each location approximately 15 or 20 minutes, all to no avail. They had proceeded about 2 1/2 miles into the forest when they heard turkeys so they halted and took semi-reclining positions on the sloping bank of Hart Creek from which they could see through an opening on the opposite bank. From this position they could not be seen by the hunted target but could immediately arise to assume a shooting position when gobblers were sighted. Until this time they had seen neither game nor other hunters although they had previously heard one shot fired in the distance.

Earlier, from another direction, Cheesborough, an experienced hunter who had on occasions served as an instructor in hunting safety, ² together with a companion, had entered another portion of the hunting area. Separating but maintaining communication through a walkie-talkie, they arranged a meeting place at the creek bank. (Only the necromancy of a haruspex could have prognosticated this was destined as the locale for a fateful rendezvous where the Seabolt brothers would sustain bodily wounds and Cheesborough end up unhappily as a defendant in these lawsuits.) En route to his destiny Cheesborough shot and killed a scrawny dog that was chasing a deer, this undoubtedly being the shot that had been heard by the Seabolt brothers. Sounding his turkey caller and keeping himself hidden from the known keen sight of the birds, he saw a gobbler about 45 yards away walking toward the creek. Unknown and unseen by him the Seabolts were in the underbrush across the bank between him and his quarry. Using a .222 caliber rifle which carried a missile traveling 3,000 feet per second, he took careful aim and fired at the gobbler then about 35 yards away and walking toward the creek. The projectile went completely through the trunk of a small tree with fragments exploding to hit and wound both Seabolts. Upon discovering the calamity Cheesborough summoned his companion and they jeeped the bleeding brothers to the hospital.

Fortunately, although seriously injured, both brothers recovered. They filed these suits for their damages based on alleged negligence. The defendant's answers denied fault, averred plaintiffs had failed to exercise the required degree of ordinary care for their own safety, that their negligence was the sole and proximate cause, and that the incident and resulting injuries constituted 'an accident within the meaning of the law.'

The two suits were joined for trial. ³ There was a contradiction between the parties as to the visibility situation. The Seabolts testified that upon being struck they sat up and could see the defendant about 45 steps away and they could see him get up. Defendant testified the undergrowth prevented his seeing them. In this he was supported by the county sheriff who investigated ⁴ the incident and described the vegetation. The jury returned verdicts for the defendant. After their motions for new trial were overruled these appeals were brought. In addition to the general grounds of the new trial motions the enumerations of error submit the trial judge erred in refusing to include three specific requests to charge, and in charging on the law of accident, and in failing to charge comparative negligence.

1. One of plaintiffs' requests contained the following language: 'A high degree of care is necessary in the use or manipulation of loaded weapons, and a failure to exercise a degree of care proportionate to the potential danger under all of the circumstances revealed to you by the evidence, would be a lack of ordinary care and would constitute negligence on the part of the user.' (T. 61) This language is analogous to that held erroneous in Wright v. Dilbeck, 122 Ga.App. 214, 228, 176 S.E.2d 715, 727 where the judge instructed 'that where the view or hearing of a motorist approaching a railroad crossing is obstructed, he is under the duty of using greater care and prudence in looking and listening for approaching trains than where there is no obstruction' and 'if you find that obstructions hindered the view of Mr. Wright in his approach up until he reached the principal point of danger, located on the track, the precautions required of him in order to meet the standard of ordinary care increased as he approached the danger point.' (Emphasis supplied.) This charge was held to be error as it invaded the province of the jury. 'It is for the jury to determine from all the facts and circumstances the precautions necessary to meet the standard of ordinary care. It is for the jury to determine whether specific stated circumstances require the exercise of additional care and prudence, and it is error for the trial judge to instruct the jury that under certain stated circumstances, greater care and prudence is required in order to meet the standard set by the law.' Wright v. Dilbeck, supra, p. 229, 176 S.E.2d p. 728. The trial court properly refused to give this charge.

2. Likewise, the trial judge recognized it would have been erroneous as invading the province of the jury to charge that request which included this language: 'In the exercise of ordinary care, a hunter . . . is bound to anticipate the presence of others who might likewise be engaged in the sport of hunting, and is likewise under a duty to distinguish between hunted animals and human beings before discharging his weapon.' (R. 62)

'A trial judge may not tell a jury what acts would or would not constitute negligence unless the acts have been declared by statute to be negligence. Savannah F. & W.R. Co. v. Evans, 115 Ga. 315, 316, 41 S.E. 631, 90 Am.St.Rep. 116; Atlanta & W.P.R. Co. v. Hudson, 123 Ga. 108, 109, 51 S.E. 29; Watson v. Riggs, 79 Ga.App. 784, 785, 54 S.E.2d 323. It would have been better practice to charge fully the general law on the applicable standard of care without suggesting particular acts which might have been required of plaintiff (defendant in the case sub judice) to conform with that standard.' Gates v. Southern Railway Co., 118 Ga.App. 201, 204, 162 S.E.2d 893, 895. In accord, Etheridge Motors, Inc. v. Haynie, 107 Ga.App. 674(1), 131 S.E.2d 212; Hunt v. Pollard, 55 Ga.App. 423, 427, 190 S.E. 71.

Moreover, such request was not adjusted to the evidence. Defendant testified he aimed at a turkey, not plaintiffs. Plaintiffs themselves acknowledged they were not making any movements. 'The trial court did not err in refusing to charge the jury a request to charge that was not perfectly apt and precisely adjusted to the case. (Citations)' Crafton v. Livingston, 114 Ga.App. 161(5), 150 S.E.2d 371; Slaughter v. Linder, 122 Ga.App. 144, 146(2b), 176 S.E.2d 450 and cases cited therein.

3. A third request which was properly rejected sought on the basis of an inherently dangerous instrumentality to impose a greater degree of care than is required by law. The trial judge charged the general law that 'Ordinary care and diligence is that care and diligence which every prudent man takes of his own property of a similar nature or that care and diligence which every prudent man would exercise under similar circumstances and like surroundings.' In a comprehensive article captioned 'Hunter's civil liability for unintentionally shooting another person' in 26 A.L.R.3d 561, 567, the author says: 'Although the courts have used various forms of...