Summers v. Tice, Sup. Ct. Of Cal.,

33 Cal. 2d 80, 199 P.2d 1 (1948)

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Nature of the Case

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Facts

On November 20, 1945, P and Ds were hunting quail on the open range. Each of the Ds was armed with a 12-gauge shotgun loaded with shells containing 7 1/2 size shot. Prior to hunting, P discussed the hunting procedure with Ds, indicating that they were to exercise care when shooting and to 'keep in line.' The party proceeded up a hill, thus placing the hunters at the points of a triangle. Ds' view of P was unobstructed, and they knew his location. Tice flushed a quail which rose in flight to a 10-foot elevation and flew between P and Ds. Both Ds shot at the quail, shooting in P's direction. Ds were 75 yards from P. One shot struck P in his eye and another in his upper lip. There was no other evidence from which to determine which gun the shot that wounded P’s eye came from. The trial court held that both Ds were liable. Ds appealed on the grounds that they were not joint tortfeasors, they were not acting in concert and there was insufficient evidence to show which of them was guilty of the negligence which caused the injuries.