State v. Standard

• Decision Date: 24 October 1962
• Citation: 375 P.2d 551,232 Or. 333
• Parties: The STATE of Oregon, Appellant, v. Lew Percy STANDARD, Respondent.
• Court: Oregon Supreme Court

Page 551

375 P.2d 551

232 Or. 333

The STATE of Oregon, Appellant, v. Lew Percy STANDARD, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 10, 1962.

Decided Oct. 24, 1962.

William F. Frye, Dist. Atty., for Lane County, Eugene, for appellant.

James A. Pearson, Eugene, for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and DENECKE, JJ.

PERRY, Justice.

The Lane County Grand Jury returned an indictment against the defendant, as follows:

'The above named LEW PERCY STANDARD is accused by the Lane County Grand Jury by this Indictment of the crime of

'INVOLUNTARY MANSLAUGHTER

committed as follows:

'The said LEW PERCY STANDARD on the 15th day of October, 1961, in the county aforesaid, and then and there hunting for deer with a loaded rifle and having the duty,

'(1) to exercise a reasonable degree of care in the handling of his rifle,

'(2) to keep a lookout for other persons within gunshot range of his rifle '(3) to refrain from inflicting injury upon or causing bodily harm to other persons,

'(4) to refrain from firing his rifle at and toward any other person, and

'(5) to positively indentify any and all objects at which he intended to shoot before aiming and firing his rifle at such objects;

he, the defendant, being within gunshot range of one Wesley Grant Standard, did wrongfully and unlawfully fail to use due caution and circumspection in that he,

'(1) failed and neglected to keep a lookout for other persons and particularly for the said Wesley Grant Standard, who was then and there within gunshot range of said rifle, as aforesaid,

'(2) failed and neglected to positively identify the object at which he intended to shoot with his rifle,

'(3) fired his rifle at and in the direction of the said Wesley Grant Standard before he, the defendant, could clearly see and identify the object at which he was shooting, and

'(4) fired his rifle at and in the direction of a motion or movement without knowing or first ascertaining or investigating the cause of said motion or movement, which was in fact the person of said Wesley Grant Standard;

and he, the said defendant, did thereby and in the manner and by the means aforesaid involuntarily kill the said Wesley Grant Standard by shooting and inflicting upon him a fatal gunshot wound, which wound was a direct and proximate result of the lack of due caution and circumspection of the defendant, as aforesaid; contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Oregon.'

The defendant demurred to this indictment. The demurrer was sustained, and the state appeals.

It will be noted that the crime sought to be charged is the crime of involuntary manslaughter.

As set forth in the indictment, the homicide was caused while the defendant was doing a lawful act. Therefore, if the act, the firing of the firearm, was in itself lawful, the crime was committed only if the lawful act was performed 'without due caution or circumspection, * * *.' ORS 163.040. It follows then, that to state the crime of involuntary manslaughter in the doing of a lawful act, the indictment must set forth in detail the acts or omissions of the defendant while in the performance of the lawful act, which were performed 'without due caution or circumspection' and these allegations are plead as in civil actions for negligence. State v. Miller, 119 Or. 409, 243 P. 72.

The state contends that since the rules of pleading in civil negligence actions apply, it was necessary to set forth in particular the duties imposed by the law upon a person using firearms in a lawful manner.

The state relies in particular upon our statement in Kennedy v. Hawkins, 54 Or. 164, 167, 102 P. 733, 25 L.R.A.,N.S., 606, an action to recover damages for negligence, as follows:

'* * * The complaint should allege what duty was imposed upon defendants towards plaintiff, or state facts from which the law will imply the duty, and then allege a breach or negligent performance of the duty. 14 Pl. & Pr. 331, 332.'

The state seems to argue that the use of the disjunctive, 'or' in this statement, will permit a direct allegation of the law as to duties, or in the alternative, an allegation of facts from which the law will infer the duty. In this belief, the state is in error.

It is quite true that actionable negligence arises only from breach of a legal duty (Hansen v. Cohen et al., 203 Or. 157, 276 P.2d 391, 278 P.2d 898; Slattery v. Drake et al., 130 Or. 693, 281 P 846) and in a civil action for damages a legal duty may arise because it is imposed by statute or by failure to use due care under the circumstances. Senger v. Vancouver-Portland Bus Co., 209 Or. 37, 298 P.2d 835, 304 P.2d 448, 62 A.L.R.2d 265.

The statement found in Kennedy v. Hawkins, supra, 'what duty was imposed upon the defendants toward the plaintiff,' while correct, unless understood and properly applied, is in its literal interpretation misleading. An examination of the cases relied upon for the statement found in 14 Encyclopaedia of Pleading and Practice, pages 331 and 332, discloses that the statement cannot be strictly interpreted.

The cases cited show that the facts alleged failed to disclose that a legal relationship existed between the plaintiff and the defendant that required the exercise of due care, an example being the case of one who is injured by a defect existing upon the property of another. For example, if a person is a trespasser upon the lands of another there is only the duty to avoid wilfully and wantonly injuring the trespasser (Hansen v. Cohen et al., supra), whereas, in the case of an invitee, there is a duty to use the care of a reasonably prudent person to keep the premises in a reasonably safe condition. Welter, Adm'x v....