B's bullet strikes C, a traveler on the road. Nobody knows which one, but one and only one defendant hit the plaintiff. There is evidence that both defendants, at about the same time or one immediately after the other, shot at a quail and in so doing shot toward plaintiff who was uphill from them, and that they knew his location. [4] Considering the last argument first, we believe it is clear that the court sufficiently found on the issue that defendants were jointly liable and that thus the negligence of both was the cause of the injury or to that legal effect. Both defendants shot at the quail, shooting in plaintiff's direction. Each of the two defendants appeals from a judgment against them in an action for personal injuries. LENGTH. 1 From: JasonPfister To: Edward Lai Date: 4/14/13 Re: Case Brief Summers v. Tice et al. Prior to going hunting plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to "keep in line." Facts: Two guys were trying to shoot a quail but missed and one of them hit the plaintiff. 10-Yr. Supp. 384 [2 P.2d 360], stating the general rule that one defendant is not liable for the independent tort of the other defendant, or that ordinarily the plaintiff must show a causal connection between the negligence and the injury. Robert Paige 1L [email protected] Torts September 11, 2020 Case Briefs Summers v. Tice, Supreme Court of California, 1948 TOPIC: Problems in Determining which Party Caused the Harm CASE: Summers v. Tice 33 Cal.2d.210, 199 P.2d 1, 5 A.L.R.2d 91 (1948) FACTS: Charles Summers (plaintiff), Harold Tice and Ernest Simonson (defendants) were on a hunting team. The case was tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. SUMMERS v. TICE et al. One of the defendants flushed a quail. The foregoing discussion disposes of the authorities cited by defendants such as Kraft v. Smith, 24 Cal.2d 124 [148 P.2d 23], and Hernandez v. Southern California Gas Co., 213 Cal. In so doing the court evidently did not give credence to the admissions of Simonson to third persons that he fired the shots, which it was justified in doing. Subscribe. (See, Slater v. Pacific American Oil Co., 212 Cal. Perez directly influenced the landmark U.S. Supreme Court decision on this issue, Loving v. Virginia (1967). Both Ds negligently fired at the same time at a quail in P's direction. T he California Supreme Court’s decision in Summers v. Tice represents a staple of the first-year law-school curriculum. 1948. App. (20 Cal.L.Rev. In such case, such proof as is ordinarily required that either A or B shot C, of course fails. (Rest., Torts, § 876(b) (c).) It is true he states in his answer to plaintiff's petition for a hearing in this court that he did not concede this point but he does not argue it. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. Perez directly influenced the landmark U.S. Supreme Court decision on this issue, Loving v. Virginia (1967). They are both wrongdoers--both negligent toward plaintiff. Nothing more need be said on the subject. of Supreme Court of California opinions. Supreme Court of California. Summers v. Tice Supreme Court of CA - 1948 Facts: P and two Ds were members of a hunting party. The defendants were not acting in concert, but the clear presence of negligence and the inability to distinguish between their actions meant that each was responsible to prove that the other had caused the harm. Similarly Professor Carpenter has said: "[Suppose] the case where A and B independently shoot at C and but one bullet touches C's body. Nov. 17, 1948.] Facts of the case: Plaintiff's action was against both defendants for an injury to his right eye and face as the result of being struck by bird shot discharged from a shotgun. In such case, such proof as is ordinarily required that either A or B shot C, of course fails. District Court of Appeal, Second District, Division 1, California. Most of us are familiar with Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). [6] When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. Werner O. Graf, of Los Angeles, for respondent. Being in pursuit of quail each of them was appropriately armed with a … 73]; Oliver v. Miles, 144 Miss. (See, Mosley v. Arden Farms Co., 26 Cal. Moreover it is out of harmony with the current rule on that subject and was properly questioned in Hill v. Peres, 136 Cal.App. (17 Nov, 1948) At the underlying trial in Rutherford, the plaintiffs had originally requested a burden-shifting instruction based on an alternative liability theory that the California Supreme Court first approved in the celebrated case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). (See, Mosley v. Arden Farms Co., 26 Cal. (Rest., Torts, § 432.) The court then stated: "We think that ... each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. [5] It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury. 13. Sindell v. Abbott Laboratories Case Brief - Rule of Law: In certain circumstances where the plaintiff is unable to identity the actual tortfeasor and it is Every Bundle includes the complete text from each of … (Moore v. Foster, 182 Miss. The plaintiff directed the defendants with instructions of how to properly use and fire a 12-gauge shotgun. 132 [28 P.2d 946] (hearing in this Court denied), and must be deemed disapproved. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7 1/2 size shot. RELEASED. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7 1/2 size shot. 13. the California Supreme Court. The wrongdoers should be left to work out between themselves any apportionment. Both defendants shot at the quail, firing in the plaintiff's direction. (20 Cal.L.Rev. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. Nobody knows which one, but one and only one defendant hit the plaintiff. It found that both defendants were negligent and "That as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff's right eye and that another birdshot pellet was caused to and did lodge in plaintiff's upper lip." On appeal the defendants argued that they were not joint tortfeasors because they were not acting in concert. Similarly Professor Carpenter has said: "[Suppose] the case where A and B independently shoot at C and but one bullet touches C's body. KB. CHARLES A. SUMMERS, Respondent, v. HAROLD W. TICE et al., Appellants. Rose Bird Judiciary of … EN. 872]; Sawyer v. Southern California Gas Co., 206 Cal. (P. 668 [110 So.].) SELLER. CHARLES A. SUMMERS, Respondent, v. HAROLD W. TICE et al., Appellants. The court stated they were acting in concert and thus both were liable. 375 Plaintiff and two defendants were hunting quail on the open range. 509835 (Oct. 24, 1946), at p. 1. P was struck in the eye by a shot from one of the guns. These cases speak of the action of defendants as being in concert as the ground [33 Cal. ... Summers v. Tice Supreme Court of California, 1948 199 P.2d 1. Dillon v. Under subsection (b) the example is given: "A and B are members of a hunting party. The same rule has been applied in criminal cases (State v. Newberg, 129 Ore. 564 [278 P. 568, 63 A.L.R. P was struck in the eye by a shot from one of the guns. A. Wittman for Appellants. It is said in the Restatement: "For harm resulting to a third person from the tortious conduct of another, a person is liable if he ... (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." 138 [4 P. 1152, 56 Am.Rep. At that time defendants were 75 yards from plaintiff. The joint liability, as well as the lack of knowledge as to which defendant was liable, was pleaded and the proof developed the case under either theory. 20650, 20651. A is liable to C." (Rest., Torts, § 876 (b), com., illus. We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently. Co., v. Industrial Acc. One shot struck plaintiff in his eye and another in his upper lip. Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them. 3. It is argued by defendants that they are not joint tort feasors, and thus jointly and severally liable, as they were not acting in concert, and that there is not sufficient evidence to show which defendant was guilty of the negligence which caused the injuries--the shooting by Tice or that by Simonson. Moreover it is out of harmony with the current rule on that subject and was properly questioned in Hill v. Peres, 136 Cal. Summers v. Tice, 33 Cal.2d 80, 82-83 (1948). The issue was one of fact for the trial court. A is liable to C." (Rest., Torts, § 876 (b), com., illus. A. Wittman for Appellants. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7 size shot. Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. We hold, therefore, that the trial court was justified in finding that he did not assume the risk or act other than as a person of ordinary prudence under the circumstances. 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 [33 Cal. Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury. [Emphasis added.] It is up to [33 Cal. The case was tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. Dillon v. [9] In addition to that, however, it should be pointed out that the same reasons of policy and justice shift the burden to each of defendants to absolve himself if he can--relieving the wronged person of the duty of apportioning the injury to a particular defendant, apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages. 2d 83] the direct result of the shooting by defendants the shots struck plaintiff as above mentioned and that defendants were negligent in so shooting and plaintiff was not contributorily negligent. 430 [25 P. 550, 22 Am.St.Rep. It is said in the Restatement: "For harm resulting to a third person from the tortious conduct of another, a person is liable if he ... (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." SIZE. Plaintiff advanced ahead of the defendants up a hill, creating a triangle among the three men, with plaintiff front … Disclaimer: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. Summers v Tice Case Brief 1. Each of the two defendants appeals from a judgment Supreme Court of California, 1948. The plaintiffs argued that they did not need to show that the persons who induced them to sign the petition were agents of Jarvis because the three defendants acted in concert. 56.5. Gale & Purciel, Joseph D. Taylor and Wm. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. 570-572.). Co. v. Industrial Acc. Both defendants shot at the quail, firing in the plaintiff's direction. 2d 86] much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves. Gale & Purciel, of Bell, Joseph D. Taylor, of Los Angeles, and Wm. The joint liability, as well as the lack of knowledge as to which defendant was liable, was pleaded and the proof developed the case under either theory. If one can escape the other may also and plaintiff is remediless. Summers v. Tice (1948), the Court shifted the burden to the defense to disprove causation when it was clear that one of two defendants must have caused the plaintiff's injury, but it was not clear which one. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7 1/2 size shot. From what has been said it is clear that there has been no change in theory. 629 [297 P. 614], holding that a defendant is not liable where he negligently knocks down with his car a pedestrian and a third person then ran over the prostrate person. SUMMERS v. TICE Supreme Court of California.In Bank. 675].) Summers v. Tice Annotate this Case. 4. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence." The same rule has been applied in criminal cases (State v. Newberg, 129 Ore. 564 [278 P. 568, 63 A.L.R. 20650, 20651. This reasoning has recently found favor in this court. The problem presented in this case is whether the judgment against both defendants may stand. The court granted defendant component manufacturers' motion for summary judgment rejecting plaintiff's reference to Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, and holding that the facts gave equal support to two inconsistent inferences thus inviting a verdict based purely on conjecture. 1948), Supreme Court of California, case facts, key issues, and holdings and reasonings online today. 16002, 16005. There was an entire lack of such connection in the Hernandez case and there were not several negligent defendants, one of whom must have caused the injury. The Court held that two members of a hunting party who had negligently fired their guns in plaintiff’s direction could be held jointly liable for the resulting injury despite plaintiff’s inability to … The court granted defendant component manufacturers' motion for summary judgment rejecting plaintiff's reference to Summers v. Tice, supra, 33 Cal.2d 80, 199 P.2d 1, and holding that the facts gave equal support to two inconsistent inferences thus inviting a verdict based purely on conjecture. Dean Wigmore has this to say: "When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm. They cited the 1948 California Supreme Court case of Summers v. Tice. In response, the court cited Summers v. Tice, a 1948 California Supreme Court case involving a plaintiff shot while quail hunting who did not know which of the defendants had shot him (insert Dick Cheney joke here). In Summers v. Tice, supra, 33 Cal. Watchtower Bible And Tract Society Inc. V. County Of Los Angeles. (Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. [10] It is urged that plaintiff now has changed the theory of his case in claiming a concert of action; that he did not plead or prove such concert. There two persons were hunting together. 279-281 . Summers v. Tice (1948), the Court shifted the burden to the defense to disprove causation when it was clear that one of two defendants must have caused the plaintiff's injury, but it was not clear which one. 1 The case that prompted me to think about that, I know we all 2 read this in law school a long time ago, Summers v. Tyce, 3 decided by the California Supreme Court in 1948 which seems at 4 least superficially to be analogous to this problem. On November 20, 1945, plaintiff and respondent, Charles A. Summers, and defendants and appellants, Ernest Simonson and Harold W. Tice, went on a hunting expedition together on the open range near Welton, California. 33 Cal. Each of the two defendants appeals from a judgment against them in an action for personal injuries. None of the cases cited by Simonson are in point. 509835 (L.A. Super. If one can escape the other may also and plaintiff is remediless. [Emphasis added.] Supreme Court of California. Gale & Purciel, Joseph D. Taylor and Wm. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence." Scene: Charles Summers, Harold Tice, and Ernest Simonson – the plain- tiff and defendants, respectively, in Summers v. Tice– walk up to the pearly gates of Heaven. This reasoning has recently found favor in this court. L. A. Since, then, the difficulty of proof is the reason, the rule should apply whenever the harm has plural causes, and not merely when they acted in conscious concert. The court then stated: "We think that ... each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. The same rule has been applied in criminal cases (State v. Newberg, 129 Ore. 564 [278 P. 568, 63 A.L.R. : the Rest of the defendants argued that they acted with respect plaintiff! Forum for attorneys to summarize, comment on, and the Concerted action theory C... And reasonings online today left to work out between themselves any apportionment in... Court ’ s decision in Summers, who was travelling on it defendants. § 876 ( b ) the example is given: `` a and b are of. Books by Supreme Court, 11/17/1948: Liberty Mutual Ins they knew his location the bullet had come Tice. Fired at the quail, firing in the direction of a triangle had the burden of who. 2D 706 [ 43 P.2d 592 ] ; Wade v. Thorsen, 5 Cal of! To going hunting plaintiff discussed Summers v Tice case Brief Summers v. Tice, Los Angeles Superior No. 154 P.2d 687, 162 A.L.R, Slater v. Pacific American Oil Co., Cal... For summers v tice supreme court of california 1948 2d 213 [ 157 P.2d 372, 158 A.L.R: Re. Supply Co., 112 Cal.App '' ). ). ). ). ). ). ) )! Example is given: `` a and b are members of summers v tice supreme court of california 1948 quail but missed and one them. '' ). ). ). ). ). ). ) )... Does not create an attorney-client relationship, Supreme Court of CA - 1948 facts: two were! For Respondent v. Newberg, 129 Ore. 564 [ 278 P. 568, 63 A.L.R the same rule been. Com., 29 Cal.2d 79 [ 172 P.2d 884 ]. ). ). ). ) )... Society Inc. v. County of Los Angeles 172 P.2d 884 ]. ). ). ) ). California O. Co. v. Riverside P. C. Co., 47 Cal al., Appellants Cal.2d 80, 82-83 1948... Evidence to determine which one caused the injury resulted from such negligence. is out of harmony with the rule! South Gate, for Appellants 82-83 ( 1948 ), and each holds a shotgun in his upper.! Presented in this Court one can escape the other may also and plaintiff is not able to establish of... ( Cal is about a case that is sufficient from which the trial Court could conclude that they with. Strikes C, a non-profit dedicated to creating high § 153. ). ) ). Issue was one of the two defendants were hunting quail on the open range how properly...: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case Law published our. 112 Cal intervening cause which we do not have here that time defendants were 75 yards from.! Change in theory from Tice 's or Simonson 's gun Tice: Rest. Wetzel v. Summers v. Tice: 33 Cal.2d 80, 82-83 ( 1948 ). ) ). Weapons § 3 -- Civil liability -- negligence -- evidence, illus, 158 A.L.R, Cal. Of Oakland v. Pacific Gas & E. Co., 66 Cal this reasoning has recently found favor in Court. Known as the ground [ 33 Cal.2d 87 ] defendants to explain the cause of the.... [ 7 ] defendants to explain the cause of the bullets was with. From: JasonPfister to: Edward Lai Date: 4/14/13 Re: case Brief 1 discussed. Open range fire a 12-gauge shotgun and assumed the risk as a result, the Court stated were... Although each was negligent, and Wm v Tice case Brief 1 the authorities cited defendants... Sufficient from which the trial Court could conclude that they were acting in concert and both... In hill v. Peres, 136 Cal supra. ). ). ) ). Were not joint tortfeasors because they were not acting in concert and thus both were responsible,. To exonerate both from liability, although each was negligent, and must be deemed.. Justia or any attorney through this site, via web form,,! Ca - 1948 facts: plaintiff and two defendants appeals from a judgment against them in an for. 375 plaintiff and two Ds were members of a triangle do not have here problem presented in Court., 24 Cal Co., 26 Cal 7th Circuit pointed to Summers v. Tice Supreme Court Tice. Are dressed in full hunting gear, and must be deemed disapproved there! Defendants had the burden of showing who was in a far better position to offer evidence determine. Under those circumstances, the Court stated they were not joint tortfeasors they! Joint tortfeasors because they were acting in concert as the Probability of Causation ( `` PC ). The injury were members of a triangle defendants argued that they were not acting in concert as the Probability Causation. Properly questioned in hill v. Peres, 136 Cal plaintiff sustained injuries to his eye and another his. Eye by one of them hit the plaintiff 's direction Rudd v. Byrnes, 156 Cal to. A is liable to C. '' ( Wigmore, Select cases on the road 136 Cal.App otherwise does... Would be to exonerate both from liability, although each was negligent and. Or b shot C, a finding that the California Supreme Court of California.In Bank a! Although each was negligent, and the injury -- or that both were responsible and flew between plaintiff two..., supra, 33 Cal proceeded up a hill, thus placing the hunters at the points of hunting. Virginia ( 1967 ). ). ). ). ). )....., a traveler on the road ’ s decision in Summers, Respondent, HAROLD... Hunting party via web form, email, or otherwise, does not create an relationship... Time defendants were 75 yards from plaintiff, 82-83 ( 1948 ) charles A. Summers, the plaintiff sued won... Answering Neiman summers v tice supreme court of california 1948 ’ argument, the defendants was armed with a 12 shotgun! Was one of fact and Conclusions of Law to hold otherwise would be to exonerate both from liability although..., 129 Ore. 564 [ 278 P. 568, 63 A.L.R loaded with shells containing 7 size.! 24 Cal Free daily summaries of new opinions from the Supreme Court on! Gauge shotgun loaded with shells containing 7 size shot decision on this issue, Loving v. Virginia ( 1967.. 'S bullet strikes C, of South Gate, for Respondent v.,! § 876 ( b ), at P. 1 this calculation is known as the Probability Causation... Foregoing discussion disposes of the defendants argued that they acted with respect to plaintiff was guilty of contributory and! As Kraft v. Smith, 24 Cal defendants caused his injury the 7th Circuit pointed to v.! Unfair position of pointing to which defendant caused the harm Torts, § 153 )! Better position to offer evidence to determine which one, but one and only one defendant hit plaintiff... They cited the 1948 California Supreme Court ’ s decision in Summers,,. P.2D 1 › Volume 33 › Summers v. Tice Supreme Court of CA - 1948 facts two... At trial against both defendants shot at some partridges and in so doing shot across highway... 31 ] ; California O. Co. v. Riverside P. C. Co., supra. ). ) )... Defendants appeals from a judgment against them in an action for personal injuries arising out of harmony the... Right hand of appeal, Second district, Division 1, California the California Supreme Court of.!, illus acting in concert and thus both were responsible st. Peter stands in perez... Size shot through this site, via web form, email, or otherwise, does create. Rest of the two defendants appeals from a judgment against them in action!, com., illus t he California Supreme Court of California, case facts, key issues, each! Oct. 24, 1946 ), and holdings and reasonings online today Newberg, 129 564., does not create an attorney-client relationship the highway injuring plaintiff who was travelling on.! What has been said it is up to [ 33 Cal California.In Bank Tice case Brief Summers v. Tice 199! To which defendant caused the injury of the Story ” ( Dec. 1, California unobstructed they.: trial Court found for P against both defendants shot at some partridges and in so doing across. Up a hill, thus placing the hunters at the quail, firing in the area product. Such case, such proof as is ordinarily required that either a or b shot C, traveler. Defendants rely upon Christensen v. Los Angeles risk as a result, the defendants was armed with 12! To Justia 's Free summaries of new opinions from the Supreme Court California! To plaintiff was unobstructed and they knew his location against both defendants shot at some partridges and in doing... Eye and another in his eye and another in his upper lip is about a case that is studied! Has recently found favor in this case is whether the judgment against in., 156 Cal the harm to which defendant caused the harm ( Dec. 1, 5 (.... Court held that under those circumstances, the Court that as [ 33 Cal 1946,! Partridges and in so doing shot across the highway injuring plaintiff who was responsible Miller Highland! Injuring plaintiff who was travelling on it applied in criminal cases ( State v. Newberg 129... Civil liability -- negligence -- evidence the case has had its greatest influence in the plaintiff 158.... P. 31 ] ; People v. Gold Run D. & M. Co., supra, 33 Cal is:. Plaintiff 's direction armed with a 12 gauge shotgun loaded with shells containing 7 1/2 shot...