*1 1965] v.
FELGNER ANDERSON. оp Weapons Negligence—Eirearms. 1. —Common Law — very high degree The common-lawrule is still extant of care required persons using from all firearms the immediate vicinity others, necessary no matter how lawful or even such may be, being plaintiff’s of liability use the test not whether the accidentally inflieted, the defendant whether free blame. Negligence 2. Care. —Measure duty The measure of of a negligence-charged defendant rea- appropriate case, sonable eare to the circumstances standard allows the fact finder to determine some reasonably require factual greater circumstances or lesser dili- gence than do other circumstances order to constitute rea- or due sonable eare. 3. Same —Common Law —Instructions. charge respect the common law made jury laymen to a must be cast in terms which a [6] [10] '.[13,15] [18] .[17] [16] [11] [14] [12] [8] [7, [4] [5] T3] [1] [2] 38 Am Am14 56 Am 56 Am 53 Am 38 Am 38 Am 14 Am 38 Am 38 Am 56 38 Am 38 Am 38 Am Am38 38 Am Am Am Am 38 Am Jur, Jur, Jur, Weapons Jur, Jur, Weapons Jur, Negligence Jur, Jur, Negligence Jur, Negligence Jur, Negligence Jur, Negligence Jur, Weapons Jur, Jur, Negligence Jur, Negligence Jur, Negligence Jur, Nogligenee Jur, Courts References Jur, Negligence Courts Trial Weapons Weapons Negligence § §§ 84. §§ and Eirearms 34, 74, §§ and Eirearms 59, 60, and Eirearms and Eirearms § § § §§ §§ § § § 172. 171. 30. § 31. 171. 171. Eirearms 362, 364. 23, 171. 76. 2.§ Points 363. 132. 24. § 26. §§ in Headnotes §§ §§ § 23. 22, 22, 23. 23, 23. 26. impose that which a measured will understand standard required reasonably reasonably regard as prudent man would specific the case. factual circumstances by Court —Mistrial *2 Dire Examination —Comments 4. Trial —Voir Charge. —-Bequest to by during dire relative to voir examination Comment trial court to the trial firearms and of an accident as which use of cause voir examina- jury to dire court directed a remark before disregard previous jury his reference was ended should tion held, not rever- to of firearms and accident firearms use trial, a denying a fair where neither error as defendant sible jury request for for mistrial then made nor a motion was alleged against to protect the harm instruction defendant been have caused. Negligence. Contributory op Negligence Assumption Bisk — 5. — equivalent of con- assumption of is not an The doctrine of risk tributory negligence. op Assumption 6. Bisk. Same — interposed in an may not defense Assumption risk be of defendant, except alleged negligence of based on action of risk express assumption is involved contractual as there an arising statutorily application limited actions or in the employment relationships. out of certain Assumption — Weapons — — of Overruled Case Becklessness 7. Bisk. including amputation personal injuries, Defendant action for shotgun he and leg, discharge while of of caused they had duek-hunting been plaintiff blind to which were at opened, duck-hunting assigned, after season some hours held, assumed plaintiff had entitled to instruction that impose injury, permissible risk of such and that was liability only find conduct where should defendant’s overruling Wiitala, 361 negligent, Waltanen v. cases. other Opinion. Separate Black, J. op Appellate Opinions. Court 8. Courts —Function opinions resort is not The court last of of function of reasonably it, provide certain decide case before guidance to bar. the bench and Assumption Hunting Same — Bisk — Accident. 9. Separately opinion assumption rislc doctrine held of negligence mа- subordinated to obtain eliminated in all cases is v. Anderson. arising hunting holding jority opinion in action accident from plaintiff not entitled to instruction that defendant discharge companion’s had risk assumed shotgun. Separate Opinion. Adams, JJ.
Smith Negligence Assumption — oe Risk. 10. away assumption with the doctrine determination to do The not be risk in the should made until that field of Supreme question specifically Court. before
Dissenting Opinion.
Kelly, J. Negligence Assumption oe Risk. — gist risk in an action defense negligent injuries is that the took his chances. Firearms—Sportsmen. 12. Same — *3 degree negligence terms, are relative and the Reasonable care and using sportsman required a must be com- care a firearm of of n dangers mensurate with the tobe avoided. 13. Same —Definition. ordinarily Negligence exer- such care as is is to exercise failure by great or similar the same cised mass mankind under of circumstances. oe Care. 14. Quantum Same — injuries danger liable to increases and the seriousness As of meeting creating, such avoid avoid or occur failure from and, as danger, quantum increase care should increases the of mankind, great knowledge, mass with the matter common of of does increase. Negligence. 15. Same —Actionable degree exercise negligence lies in Actionable failure ordinarily prudent required an which should care existing circumstances. person under the Weapons. 16. Same — gun controlling does handling loaded liability one The gross there but exists depend upon not failure if by person been used have which would the care to use circumstances. the attendant prudence in all rеasonable 23. Foresight.
17. Same — injury resulted, and as there to which is no contro- If versy, ordinary foresight might is one which care and not have reasonably anticipated, not in this liable defendant action. Weapons Proop Hunting 18. —Instruction—Burden — Accident. arising while Instruction action accident which occurred from plaintiff hunting, whereby duele were defendant defendant prove compelled to he was be- without if fault gun plaintiff lieved shot reversible constituted defendant’s error, during especially where it trial court’s remarle followed voir dire such as could suffered somebody’s have occurred for fault. (Philip A.), Appeal Hadsell J. Berrien; (Calendar May No. Docket 8, 1964. Submitted 50,449.) March Decided No. Feigner against R. Anderson Louis Nelson
Case personal injuries when shot while sustained plaintiff. hunting. judgment for duck Verdict appeals. Affirmed. Defendant (Lester Page, Butzbaugh, Page Byrns E. & counsel), plaintiff. Globensl&y
Gray, Gray, (Henry Gleiss, <&Gleiss W. counsel), for defendant. appeal presented in this issue Souris, J. re- which merits extended discussion concerns charge jury, judge as re- fusal of the trial quested defendant, on the doctrine presented need be mentioned of only Other issues risk. *4 briefly. 7, the afternoon October
About being day season, of the duck first hunting flat-bot- duck in a small defendant were tomed marsh The locale was Schoolcraft boat. long county. feet seven The boat was Kalamazoo stern, fac- in the Plaintiff feet wide. and three fac- bow, at the seated ing ing Defendant the bow. partly water and in the The boat was the stern. assigned to the two partly in a duck blind land, on Club.” One “Fin and Feathers hunters season-starting (the first since ducks several suddenly approached hour) from be- the boat noon directly рlaintiff, the bow. defendant toward hind testified: Defendant you off to and curved towards came “Q. The duck right?1
approximately 3:00, is that yes. Very to it, close “A. happened? what And then '(cid:127)‘Q. swung shot. with it and IWell, “A. happened? then what “Q. And coming changing having the duck “A. Well, swung I that when shot— I so fast did,
as fast itas you fall out of the boat? “Q. Did right “A. out of boat. I fell you completely out of boat? were “Q. And my the completely In fact, “A. out of boat. I was right laying water, shoulders were really cold. It was water was ice cold. distinctly? you very “Q. That, remember Louie about I In I Yes, fact, “A. do. talked got it after I in. back you pump shooting “Q. at the did Now, duck, after again? gun say I To I no. No, me, “A. did not. you you “Q. boat, or as And after fell out of the your again? falling, gun discharge were did it No, “A. did not. you you known it? You would have
“Q. Do think it? felt or heard would have it, positive positive. quite I am am I “A. IYes, * * * my in mind. would have known it, clarity designated positions in the boat as Defense counsel for 12:00, clock, with the bow indicated related to *5 Mich Opinion positive you are Anderson, Mr. “Q. Now, shotgun pump did
yonr 12-gauge Winchester Feigner Louis discharge in the time and strike a second leg? my positive that it did not.” in mind I am “A. Plaintiff testified: sitting of the the side towards I then was “Well, my the boat on the bottom had knee
boat. I facing watching I and was side, to the left side, to off this started Mr. Anderson when the duck already up put my gun was up, because I I stand so I place, come, and ducks to waited for the in heard him no ducks. shoot, I didn’t see you stationed at were of the boat side Which “Q. (indicating) you ? this forward, like look at coming sideways I was the were ducks When boat, “A. (indicating). facing way this in the from? did ducks come “Q. And where coming from the bow Well, ducks wеre “A. that. never seen them after boat, but I happened after the ducks then what “Q. Well, came? shot, the he that one boat Well, after made “A. my around to so then I turned wobble, started my way right, left, there around this turned water, in the boat and was out of the lie he was. trying cattails, on himself some he catch and was gun went off. and that’s when his happened? what “Q. Then gun I when his went off and seen Well, “A. just gun, like that. hit, I was come out of the fire boat, or outside
“Q. Now, was inside boat?
“A. He “Q. Did his outside boat. was gun go once, off or twice? ducks, once when he shot Well, “A. shot.” water, he was in the that second after leg just Plaintiff hit full in the left below was surgeon as “about described the wound knee. v. Felgnbb Coukt. ampu- leg fist.” The man’s closed the size of a testimony, just knee. There tated above the plain- upon nature of the hole in size and based injured high him tiff’s shot had boot, range, to be fired at close at about seven estimated *6 feet.
I. appealed jury an Defendant has from adverse judgment for $35,000and, verdict his ing in addition to principal judge claim that the trial erred in refus- requested charge applicability on the of the objects judge’s of risk, doctrine to the instruction that: you gun “If find that it the defendant’s that plaintiff, duty shot the then becomes the de- completely fendant to establish that he was without any negligence.”
fault; that was free from given The instruction was not It re erroneous. properly governing flected bility the common-law lia rule injuries negligently by inflicted firearms. recently by That rule in reaffirmed this Court Saginaw Agricultural County Society, Bauer v. 349 Mich 616, 622, 623, reference to deci our earlier Manning, (36 sion Bahel v. 112 Mich 24 LRA 523, Rep 381). pages Am Bahel, St In 29, at 30, following general was stated to be the : rulе general “The rule, without reference to this very high degree required is statute, of care is persons using from all firearms the immediate vicinity of others, no matter how lawful or nec even essary may (1st Eng such use be. 7 Am & Enc Law ed), p principle 523. This same stated Shear- Negligence (4th ed), man & Redfield, § 686. In Morgan 623), Cox, Mo 373 Am Dec it was held that, where to another is caused trespass act that would have amounted to etvi armis Mich Opinion op the Court.
n under system actions, it is no defense old through inadvertence, or without the act occurred appear wrongdoer’s intending it must that the in- it; utterly jury fault inevitable, and without done was part alleged wrongdoer.” on the quoted foregoing language Bahel he
Lest incorporated uncritically jury here- in a instruction language that it cast after, it should be noted lawyers, but suitable between for communication hardly purposes. jury In instruction suitable City Detroit, held Frederick it 370 Mich we charge would have error to been negligence ease defendant in a “high degree owed duty neg- of care”. The measure of ligence-charged Frederick, is, defendant stated appropriate page cir- “reasonable care case, cumstances a standard that some fact finder to determine allows the reasonably require greater or factual circumstances diligence in order lesser than do other circumstances *7 legal In to a constitute or due care.” reasonable inap- opinion it is not addressed bench bar propriate speak degrees of care terms legal caution, jury shorthand,- a form of but when as laymen neg- charged on the commonlaw of ligence, charge only be cast terms which must jury impose measured will standard understand by gard prudent reasonably re- man would which a reasonably required specific by
as factual circumstances case.
II. sufficiently preju- alleges also error Defendant jury require dicial to of this on reversal verdict thought ground judge expressed the that the trial during voir such dire examination that suffered could not have occurred but somebody’s fault. Before tbe voir dire examination following by was made statement ended, had judge: trial my called attention to “The Court: Counsel has my opinion made reference to re- a garding I with statement injury by firearms use the use of any manner that does not in bind Now,
firearms. jury. given I instruction, as an and don’t It isn’t the think that the the court jury pay any what attention to should any says of fact. In with reference to kind you anything I have said or I’ll instruct fact, may say during proceedings in- in this case is not opin- any present an or to manner, to bind tended ion on what the facts are here. disregard, I words, said with
“Now, other what reference to the use of firearms and the cause of an by firearms. accident right, proceed.”
“All attempted Apparently satisfied correc improper patently by tion of the made comment judge, pursued trial the matter no further was present notwithstanding defendant’s counsel charged prejudicial claim that the error so thereby defendant a fair trial. The denied us, record before neither a mo however, discloses proceed early stage tion for mistrial at this in the ings subsequent request jury anor instruction protect against the defendant the harm he now al leges judge’s was cаused him As statement. Musgrove, recently have reiterated, we Smith v. Mich the time for correction 338-340, they errors, corrected, of such if can be is “when yet things right in the time remains set quoting Bronkhorst, Gilson room”, *8 Rigg, See, 367Mich 41. 35, cited Reetz v. at also, Durgis, Herbert Mich 23. Court.
III. upon Relying Wiitala, Waltanen v. 361 Mich by defendant claims reversible decided us request judge’s of his in the trial refusal error charge the risk had assumed plaintiff’s assump- injuries incurred and of the a defense to was, defendant, risk for tion of such negligence charge was entitled to which he Normally, applica- jury. to the have submitted bility of assumed cases of doctrine by having this considered and reaffirmed risk been recently, to re- take little time we would Court so judgment How- asserted error. this for the verse origins having the common-law re-examined ever, ap- process considering this the peal, in the doctrine strayed far it is our conclusion we have purposes proper in our limited afield from its precedential use doctrine. developed in our com the doctrine was first
When
applied
century,
as
mon
19th
it was
law in the
judicial
negate
employer’s
policy
an
matter
liability
injuries
employees from
his
incurred
normally
dangers
in which en
incident to the work
reported
gaged.
in this
The earliest
case
State
Michigan Central
is
doctrine was considered
which the
Although
Leahey,
deci
.
negligence, different from employment for there is serv- which arises where necessary how far such it is not consider ice and ; point are to followed. cases as have decided arising rights upon and liabilities The decisions out of prin- engagement in rest on a commonservice nal See parallel post, pp eitations.—Reporter. 37-39, analysis these eases, together origi- Mich Opinion op the Court. arising general policy; ciples their own, injustice they of com- been made view have employers?] employees pelling answer for [sic, prevent, to those their own care cannot that which self-protection great, opportunities are
whose usually greater.” much Christiancy described case, In the the limited and stated Mr. Justice same scope risk doctrine of assumed *10 (p 203): its rationale as follows man one into the of another “Where enters service perform particular very to kind of he is work, properly employer, held, as between himself and his ordinary to assume the natural and incident to risks arising negligence service, such from or miscon- duct of his fellow servants, as well as risks not other arising employer: from the fault if employer good ordinary has acted in faith and with prudence employment care and in the selection and competent of fit and servants, he should not be held injury arising liable to one of them for from the negligence of his fellow it servant: because is fair presume compensation to that the fixed with entirely reference to such I risks. But am unable parties to see how this consideration can other shield privity person employed, not in of contract with the responsibility injuries by from for their caused own negligence transacting or that of their servants in their business. against except parties “As all other those who are privies presume to the is fair contract, it that the relinquish right servant did intend to to com
pensation injuries might from their suffer employer or misconduct; as to these the requiring relinquish could have no interest such consequently compensation ment, and for the supposed service cannot be to have been fixed with entirely reference them. I, therefore, concur expressed by supreme the views court of New Young York in Co., New York Central R. 30 Barb (NY) exemption 229, that the op the Court. by injuries liability one employer caused solely upon privity another, rests servant fellow of other inure to the benefit cannot contract, of parties.” Fentham that Cruden v. observes Dean Prosser per Rep 496), (170 Eng 1798), Esp (NP “is apply clearly distinguishable haps case” to the first Torts Prosser, of risk. the doctrine plaintiff’s (2d 1955), § n In serv ed Gruden riding plaintiff’s it when was struck ant was horse wrong side a one-horse chaise driven on the having plaintiff’s defendant, road servant pass right-of-way and to between tried assert his report footpath. chaise and a defendant’s part: reads, Kenyon, up jury, summing told to the
“Lord them, that what the road was was called the law of general introduced for That where or where convenience: carriages accidents driving were road, on narrow might happen, ought to; adhered to be strictly night, ought driving and adhered to be the rule departed as it was the to, from, never *11 mode which avoided: accidents could be thought sufficiently he for all that where the road broad a car- persons carriages pass, though riage might driving wrong the be on side of the if car- there was sufficient room for other road, pass person riages horses to on other, the crossing way, justified not in ordеr to out of the right what he the It was assert termed of the road. way danger, putting voluntarily of himself into the seeking. the That was of his own seemed jury the of that case here: but the were be they they opinion; for the thought if would find otherwise, plaintiff. * # * plaintiff. “The “A rule was afterwards obtained found a for the verdict
for a new trial. on, it when the Lord In Easter term came Chief nearly himself in Justice delivered same-terms; 36' jury, finding added, that of as it was
but a after qriestion public of had convenience, verdict it rest as was. better
“New trial refused.” unlikely signal significance It is that Cruden had upon growth assumption of of of the doctrine any appear not risk, for its does to have been cited subsequent reported decision. (KB 1820),
Ilott & v. Wilkes 3 B Ald 304 Rep trespasser Eng 674), was an action who property upon spring guns entered which he knew placed injured recovery triggered had been and was when he although one. The court denied terminology used reminiscent of of risk doing {e.g., in injuria maxim so “The volenti non law, fit voluntarily applies; exposes for he himself to happened”) (p 311), the mischief which has it was using terminology in not of an affirma sense duty. tive defense to an established breach of language Rather, effect the use such in llott scope duty was to delimit the of the landlord. opinions is, essence the several in llott spring guns property, if a landlord has on his set plaintiff given thereof, but has notice the landlord duty plaintiff plaintiff has fulfilled his towards if injured by spring gun while an undiscovered trespasser. plaintiff trespasses If after such notice injured, and is defendant is not liable, because injury, assumed risk of but, rather, discharged duty because defendant towards plaintiff by giving dissenting of notice. See the opinion Naylor, of Scott, L.J., in Adams 1 KB opinion controlling [1944], 750, 758, and the Morton, J., 763-765. supra, Dean
As Prosser notes, defense as- sumption greatest impetus” of risk its “received *12 Priestley (Exch 1838), v. Fowler M3 & 1W 37 Felgner, v. Anderson. the Couet. (150 Eng Rep 1030), recovery plain- which denied against employer tiff workman defendant for in- juries riding sustained while an overloaded van. Abinger, (p 6) C.B., stated that “The servant is not safety bound to risk his in the service of his master, may, any if he fit, thinks decline service in reasonably apprehends injury which he to himself.” supra, appeared As the doctrine discussed first Michigan Leahey, Michigan in the case of Central R. Co. v. quotation
attempts by a servant to hold his master liable for injuries allegedly attributable to the analysis a fellow servant. An of them indicates that the rationale of their decisions, all of which employer, may Priestley favored the be traced to the Case. Wiggett (1856), (-156 Fox
Thus, 11 Exch 832 Rep Eng 1069), against plain a nonsuit was entered stating, tiff workman, Alderson, B., that the reason ruling for the was to be found in York, Hutchinson (1850), (155 Eng. Newcastle & B. R. Co. 5 Exch 343 nal andparallel See post, pp 37-39, citations.—Reporter. analysis of these cases, together origi *13 375 Mich 23. op Opinion the Court. 150),
Rep “that as undеrtakes, and was the servant ordinary all master, to run risks him and between Alderson, B., 11 Exch 838. also of the service”. suggested workman, that “The noted Priestley any may, if Fowler, fit, he thinks decline v. apprehends to himself.” in which he service 11 Exch 839. Shipp argument cases of and In raised. Farwell had also been Eng (139 (1856), Tarrant Webb 18 C B 797 In v. 1585), Rep trial was ordered for defendant new judge instructed the de because the had might had if defendant fendant be liable Priestley, incompetent Hut hired an fellow servant. Wigmore, Shipp argu raised chinson, and were opinions only 1 written, in the 3 case was ment, but Degg, by Cresswell, cited—that of J. Degg (1857), Midland R. H N 773,
In Co. 1 & recovery (156 Rep 1413), Eng court denied argument In cited cases of workman. were supra spring case), (the gun Wilkes, and, Ilott v. Priestley, Wiggett, pertinently, Hutchinson, and Wiggett quoted only Bramwell, B., Tarrant. that “ ‘a him and the servant undertakes as between ordinary in service, run all risks of master to cluding 1 H & a fellow ”. servant’ N 780. Skipp (1853), R.
In v. Eastern Counties Co. (156 95), Eng Rep although cited Exch 223 in no cases were Priestley, opinions, Hutchinson, Wigmore argument. were discussed York,
In Newcastle & B. R. Co. Hutchinson v. Priestley (1850), Rep 150), (155 Eng 5 Exch 343 Wigmore argument Alderson, B., were cited in undistinguishable from held that the case was negligence: Priestley, stating, as to a fellow servant’s be taken Hutchinson must “This was a risk which agreed into the de he entered have to run when consequences of which,-. for the fendants’ service, Felgner, v. responsible.” they are therefore, 5 Exch 343, Wigmore Jay (1850), (155 Eng In 5 Exch 354 155), naturally, Rep Priestley judgment was, for defendant. argu
and Hutchinson were cited both in opinion by ment and in the Pollock, C.B.
Hayes Corp. (1849), (57 v. Western R. 3 Cush Mass) recovery employee 270, denied to an in re upon Corp. (1842), liance Farwell v. Boston & W. R. (45 Mass) 339). 4 Metc Farwell, Am Dec In *14 (p 56) generally Shaw, C. J., cоncluded em ployer is not liable to a servant for a fellow serv negligence perils ant’s employer since “such risks and as the respectively
and servant intend to assume may regulated express implied and bear contract between them”. Relied be the or
upon Priestley were Murray (1841), (S C) v. S. R.C. Co. 1 McMullan (36 268). Murray Am perti Dec no contains
nent citations.
From a consideration authorities cited Mr. of it is evident that the Justice doctrine Campbell, assumption promulgated as first in risk Michi- gan only involving was a for use in doctrine cases relationship. early the master-servant case applied Cruden, which the doctrine in different cir- has in cumstances, never been cited or this State gun appears spring Ilott, elsewhere, while the case, opinions in none of the It cited. in mentioned arguments Begg, the but since no reference to Leahey, may we was made assume either that the approve principles they not Justices did its pertinent. any thought language it not In the event, supra, page coupled Justice with Campbell, recognize to the existence like failure of cases inescapable Ilott, render conclusion almost assumption adopted in of risk doctrine Leahey relationships. employment was limited Mich .op properly apply continuing doctrine While relationship, employment arising cases regrettably hereafter, cited will be of which some subsequently its use failed to restrict
this Court Perhaps a more accurate state- to such cases. utilized that the Court of the situation would ment language in its decisions of risk relationship employment involving of cases оf assumed the doctrine reference example, applied. see properly For could be risk 703). Rep Am Johnston, Mich Cook v. language of risk which the assumed cases in Other relationship employment existed where no is used but parties, mentioned later. will be between Notwithstanding where multitude of such cases risk, or of assumed doctrine this Court invoked spoke appropriate language to the doc at least trine, not this Court every action conceivable kind of employment relationship, involving find we saying, Trunk Parker Grand W. R. 296: 261 Mich Co., upon “Assumption im (3d is a doctrine based risk
plied
Elliott on Railroads
contract or waiver. 4
requires
ed), §
the relation of
1850. The doctrine
*15
services,
or
servant,
master and
contract
employment.
in
an
to risks
the course
such
relates
575,
Mich
Co.,
in Bradburn Wabash
134
As said
R.
579:
“
principle
upon risk rests
‘The
of assumed
implied
ground
employer
is an
contract between
employee
employee
that the
shall
and the
dangers obviously
of all
incident to
assume
risk
employment.’
his
employee
“Plaintiff
there-
defendant,
not
assumption
ap-
fore, the doctrine
of risk
no
has
plicability.”
1951,
As late-as
in
Hansen
Lum
Otto v.
Wholesale
Corp.,
ber
said:
37,
331
this Court
Felgner,
v. Anderson.
Opinion op the Court.
question
whether
“The
was furnished
place
a
case.
to work
not
safe
involved
the instant
Nor is the defense of
assumed risk. This is
employer
employee
true
the relation of
since
phases
master
to which these
servant,
law
pertinent,
alleged
are
did
exist and were not
the instant case. See Bauer v. American Car &
Foundry Co.,
Further the law of assumed risk in this language applying State, in addition to the doctrine or its involving employment eases not re- *16 Mich
lationship
beyond
proper scope,
and, therefore,
its
applied
synonym
also
it
the Court
as
virtual
contributory negligence and, indeed, even
a means
as
whereby
duty
expanded by
a defendant’s
addi-
upon
tional
tions of
risks was claimed he assumed
viola-
statutory
permits
common
law. Time
examples
misapplications
selected
of the
doctrine
assumed risk here mentioned.
particularly interesting pair
A
cases which
language
there is found the
risk,
of assumed
are
Chicago
(63
Heller v.
& T.
Co.,
G. R.
Grant wrote Court shipper of livestock on defendant’s railroad assumed delays the risk of unavoidable accidents and precluded watering timely feeding upon
his livestock. Justice Grant relied opinion Case, the Heller for in which he also wrote the Heller, Court. In Justice Grant turn re Michigan upon lied an earlier case, Southern & N. McDonough, Rep 466), I. R. Co.v. in which this 21 Mich Am pub held that
Court considerations of policy permit imposition lic did an insur liability upon against damages er’s railroads transport liability livestock in if because such were imposed, shipment freight the cost of of such would necessarily prohibitive, whereas common carriers (1870) charging shippers freight were then a lower taking upon “the care and risk themselves”. can Thus, we see in these cases how the in Court, advertently, adopted language of assumed risk upon simply in reliance earlier cases which limited a duty public common carrier’s burden a matter of policy allocating damage cargo risks between shipper and the carrier.
Schnepf presents Andrews, an- language other unusual use of the *17 v. Anderson. op Opinion injuries Schnepf which for she Plaintiff sued risk. negli- from the found, and the resulted claimed, gent while the dance instructor of the defendant acts dancing reversing giving plaintiff the a lesson latter was “jitterbug”. In known as the dance judgment veredicto, non obstante for defendants 512): (pp 511, this said Court plaintiff the risk assumed claim that “Defendants injuries receiving is not and that therefore she injuries permitted received. for thе to be Plaintiff to recover ordinarily in- the risk foreseeable assumed giving receiving the in of cident to the instructions jitterbug not assume the risk dance, but did negligent through of the in- the act received giving not lesson, the risk could structor duty plaintiff the be Defendants owed to foreseen. with the commensurate to exercise the care and skill risk involved.” quotation again foregoing we use
Once of see language Court, of risk when quite obviously, applying doctrine the formal was not clearly of applicable was in- doctrine risk, assumed to that Court the facts of case. What Schnepf no said in was that the defendants incurred they liability injuries plaintiff’s were unless by negligent that conduct; de- caused fendants owed defendants’ plaintiff protect duty
no to her injuries ordinary resulting from from activities by negligently them; that life not caused nonnegli- risk” all such “assumed the injuries. Clearly, gently the doctrine of as- caused utility sumption context, nor has in such risk no presume judicial predecessors do in- we that our language, tended the use of the “assumed suggest risk the doctrine assumed risk”, being applied case. this historically assumption of While in this risk State applied injuries arising properly from an em 375 Court. relationship (see ployment Bauer v. American Car Foundry Co., 541, & adopted 132 Mich where 537, this Court quoted margin4
the rule in the Narra [CCA C. & L. R. Co. 6], more v. Cleveland C. St. 68]) [96 and, CCA 499 F 48 LRA technically, applicable cases, still is to such the in utility today cidence of its has been restricted dras tically by legislature’s adoption our in 1912 of our (1st compensation PA 1912 Ex law, workmen’s Sess), By act, No 10.5 the first section legislature provided that it shall defense employee against employer in a suit *18 employee negligent, if such was injury by negligent nоt wilful; that caused a employee servant; fellow or that the assumed risk employment. By part of section 1, amended, 3 of as legislative inapplicable bar of section is made damages injuries to actions to for death or recover by sustained domestic servants and farm household subject employers are laborers whose provisions to the other assump of the act. the doctrine of Thus, may applied duty tion of risk still be to measure the by employer owed to his household domestic and farm of course the lim laborers, servants within opinions in itations of that doctrine set forth both Michigan Leahey, opinion Central R. Co. in the v. Quincy Mining Kitts, Justice Co. v. and in Cooley master does not Stat correct statement which the servant violates no servant In express servant dangers to , 4 “Assumption such eases the CL 1948 and Ann discharge causes the risk of or all, implied legal duty Cum or contributes for, of the servant’s CLS of risk is a term of the eontraet of defeat is that acquiescence which agrees Supp from the eireumstanees under 1961, to the servant a § no the terms of the 17.141 right agreed expressly § to cause the right 411.1 of the servant dangers et of action on the duty of action arises seq.). et seq. shall failing injury obviously (Stat be at the servant’s risk. employment, of the impliedly the conduct Ann protect ground himself; employment, 1960 Rev and favor employment, to assume.” the master him incident Felgneb v. Anderson. Foundry Co., & all Car cited American Bauer v. supra. assump- far, the cases considered thus
In all of purpose limiting for the used of risk was tion liability scope for the conse- of the defendant’s quences is the traditional another’s acts. This developed originally the doctrine was in which sense employment applied However, cases. as it was dancing cases from the livestock seen has been applied assumption of risk been above, has discussed employ- essentially than to other cases in this sense authority precedential valid ment cases without Similarly assumption doing we have used so.6 closely ap- in a cases sense in still other risk concepts in the proximates involved defense negligence. contributory effort has been made Some suggest distinction between rational and valid a in this sense and contribu- of risk used (2d 1955), § tory negligence, ed Prosser, 55, Torts see within, classification, general falling this type of ease Another scope of a defendant’s to limit the assumption of risk is used where liability, the authority Although there is sport spectator ease. injured attending baseball spectator while proposition that ball, may with the affirmative g., by being be met game, e. struck injury”, Waltanen particular risk of “assumed this that he defense Wiitala, Williams rule is stated in the correct 361 Mich Wood, 322, 327: 260 Mich may eases hereinbefore general be deduced from the rule that “The *19 sports and accident attend all outdoor risks of is that certain cited recovery negligence may only if an is the result of that had be by ordinary the use of care.” been avoided should have could and may by have been the statement obscured of this The correctness implicitly approved opinion the in the Court the fact that elsewhere E.g., terminology 260 of assumed risk. Mich the in eases of use such 322, 330. by speсtator’s suit is barred not Thus, analysis the indicates that negligence part a laelc of on the assumption risk rather of his ordinary This, course, in instance of of is the park owner. of the Certainly flying stands. the situation into unscreened ball a batted portion spectator sitting if a in a screened be different would through passed a hole injured a batted ball because were stands might neglected repair. Then the owner park owner had the which be any barred spectator not be and the would liable for Resulting from Keeton, Injuries Personal “assumption of risk”. See 629, (1952). 633 Conditions, and Pa L Rev TJ Open Obvious 375 they if withstood even distinctions, fine but such in analysis, any have never been made doubt, we which assumption is of risk used in which our cases of contributory negligence. It is equivalent too of as an engraft an arti in law of this now the State late a indefensible misuse of for an ficial rationalization justice, legal in even foundations whose doctrine .7 applied properly, at best The are tenuous when next those among group are cited and discussed of cases assumption of used this Court has in which equivalent or of, or an for, either as substitute risk contributory negligence. In each case to, in addition assumption used to limit the has been of risk negli liability than his own for other defendant’s legal gence, consequences the defendant of but rather to relieve a theory negligent own on the acts of injuries risk of the that the assumed negligent such acts. (1952) L James, Risk, Yale J : Assumption of See risk, analyzed assumption however it is of of “The doctrine defined, aspects most its defendant’s doctrine which restricts is of liability is a compensation of It and so the accident victims. cuts down early heritage of the extreme individualism industrial any questions quite policy or But aside from of sub- revolution. concept assuming purely duplicative stance, risk is other widely concepts, scope duty contributory such as or more understood found, exception perhaps,
negligence. The 1
is
in those
to be
cases
agreement. Moreover,
expression
an
has
where there
actual
same,
all
for 2
3 distinct
not at
come to stand
notions
are
they
they
applicable
though
same situation.
overlap
often
are
to the
sense
risk, therefore,
assumption
“Except
express
the term and
of
It adds
nothing
concept
to modern law
should be abolished.
policy
except
part
confusion. For the most
of individualism it
represents
law;
not,
policy
is outmoded
accident
where it is
scope
language.
expression
full
far better
ean find
other
There
thing
one
ean be
of risk.
In the
said
introduces,
ironically
quite capriciously
it
confusion
it
sometimes—
an
come
rule
other field.
—leads to
aura
relaxation of
overstriet
some
occasionally
may
turn
disfavor that has
to surround
out
be the kiss of death to
other bad rule with which it has
some
may happen
have
this
beeome associated. We
burden
seen how
proving
scope
pleading
exceptional
on the
limitation
duty.
may
of
this sort of
There
other
But
best
defendant’s
instances.
thing
poor
continuing
is a
excuse
indeed for
confusion
words,”
of an unfortunate form of
*20
v. (55
Rep 703),
In Cook
Am
Johnston,
plaintiff
judgment
the
Court reversed
personal injuries
she had
awаrded for
caused
been
by
negligently set
a fire the
to
quite
found
have been
by
opinion
It
from
defendant.
seems
clear
judg-
of the
in this
of the
Court
case that reversal
finding
plain-
upon
ment was based
Court’s
contributory negligence
tiff’s conduct
as
constituted
notwithstanding
regret-
a matter
law
the Court’s
suggesting
application
use of
table
words
assumption
(p 440):
doctrine of
of risk
question
principal
upon
“The
in the case
was
liability
of defendant if the fire
took
may
chargeable
for which she
have been
for the dam-
ages
recovery
on which
was had
this case.
plaintiff
testimony
“The
showed
her
that she
daily
and her husband saw the ash-barrel
and knew
position.
appears by
showing
all about its
It also
entirely open
of both that the shed, which was
within
partitions,
up,
burning
from end to end, above the
was
brightly
so
toas
them
to
wake
continued
burn-
ing
they
get
when
entered
loose
out
the horse and
buggy.
danger
eyes,
the
what
was before their
happened
sweeping
down
flames
likely
happen
very
as
as not. It
not
im-
portant by
what name the action of
should
It
be called. was such a
take,
risk
she
chose
property.
plain
her
save
husband’s
But was a
palpable
risk nevertheless, and the
would
voluntary
have occurred unless for her
act in assum-
ing
exposure.”
language
The use
of risk
in the Cook
contributory negligence
Case
sense
recognized by this Court in the case of Harris Township
Rep
Clinton,
expressly asserting interrelationship an of assumed risk and contribu between the doctrine language appearing tory negligence following in the pages 461: 460 and voluntary, wetting8 plaintiff’s “The act was she got Did she, contends, was inevitable. as defendant consequences wetting, what- all the of the assume ever they might expressed in be? The principle injuria/ qualifi- subject maxim, ‘Volenti non to fit qualifications cations, which are sometimes stated as quite recognized rule, of the are as often as rules proximate injury determining an and cause of contributory injured negligence person.”
Hemington Hemington, 221 a was case plaintiff daughter in which her to recover dam sued injuries ages for in an acci received automobile daughter’s passenger dent while a car. she was her passage following In its Court demonstrates contributory negli confusion of assumed risk with gence, declining apply while a to either doctrine as 209): plaintiff’s recovery (pp bar to voluntarily plaintiff put “It is claimed that the place danger re-entering herself a the car to close the the reason for lay room and its contents.” We negligently removed a that a stream of water under et story water, cetera, It are told out chilled, window of appears money her became sick window, clothing the Court’s statement of facts that from the in an exposing which she still effort was knocked down adjoining building service soaked opinion herself her desire to to cure herself. disordered, pressure eoek; with of the Court that defendant’s suffers, from water water, was forced into and has been afflicted with [*] prevent as a * * main with the result force of the stream pilaintiff consequence an [She] rheumatism, open “attempted obliged gave resided. agents second to the she then knew was reck- to ride with one she at Ortonville pay any heed to her remon- refused less and had in law she assumed the risk and strances, and that impressed with this are not recover. We cannot question of fact the most it was At claim. very properly judge jury, left the circuit it there. of intoxicated directed to cases attention is “Our contributory it has been held that where drivers person with such to ride to continue oppor- knowledge condition and with of his after tunity de- cannot make such leave the car. We temporarily de- Intoxication fit this cisions case. driving, stroys faculties essential safe knowledge Ibis that no one such common *22 of riding peril such of with to the sense will submit a person.” Cadagan Atlantic & Great See, also, v. Pacific Ruby Buxton, 305 212, Co., 207,
Tea
Mich
v.
298
(where,
Pugsley,
Apparently in the first sentence of the *23 saying quotation, that the defendant the Court was plaintiff, liability employee, in- no his owed its ordinary juries nonnegligent man- incurred from agement of the valid statement of its affairs —a employer liability the doctrine limited of under of in the sentence However, risk. second assumed unfortunately quotation, foregoing the the Court assumption equates plaintiff-employee’s the ordinary employment contribu- with risks of his tory negligence assumption is risks if of such his v. Anderson. n unreasonable. Clearly, employee’s not an whether or ordinary employ- assumption risks of general nothing has or unreasonable reasonable ment is contributory negligence. Such to do with whatever contributory negligence to a relate must, instead, employee, which specific act of the failure to act or was unreasonable. could determine a Undoubtedly finder fact intended, what this was suggests language imprecise the Court used con- of risk and between confusion basic throughout tributory negligence which occurs examples history legal this State. Other langu- uncertainty in which the in the sense there is Reedy age Goodin, are risk is used assumed Gibson, Mich 614, 285 Mich and Pace equivo- following page Reedy, In at we find the language: cal right may, impliedly waive his course, “One negligence by against volun-
of action another for tarily against may assuming not recover risk person though
another even other such negligent if from his own volun- results tary wrong. non the maxim volenti This is the basis of injuria. questions of de- But, case, this fit plaintiff’s fendant’s freedom contributory negligence questions fact. There are findings ample testimony sustain trial court.” page following appears: Pace,
In presented it can- “Under circumstances here as a matter of law that not be said consequence, He did assume not, mere volunteer. being injured by ordinary negligence on the risk of part may employee, of defendant or his charged contributory nеgligence be basis.” on such *24 375 Mich
52 Opinion of the Court. group use another cases this State Still language that one who risk in the sense of assumed statutory common, “assumes law, violates the either extraordinary This use risk” of such conduct. language ubiquitous risk has been assumed hut more surprisingly plaintiffs, applied not among group prominent this Most to defendants. Dodge, At Mich 303. v. 183 of cases Winckowski following appears: pages 308 and 309 the justi- there were “If, defendants, as claimed necessary fying the driver to take tending for the to show it circumstances road, the left side question of law for of fact for warranting driver the court. If facts were shown duty passing it left, to the then became his degree proceed with of caution and observe care speed as was commensurate such reduced unusual conditions. “ by driv who the “law of road” ‘One violates ing wrong on the risk of assumes such side greater experiment required than care and is to use * * * kept right if side, if had on the place pre circumstances, collision takes such wrong sumption against party who is on the Angell Lewis, 521, A side.’ v. 20 RI Rep 881).” Am78 St Why necessary by thought Island the Rhode language adopted Winckowski, we court, whose risk of such an ex- include the clause “assumes the periment for that clause can unclear, and” is quoted passage and there would from the eliminated eminently remain a coherent and correct statement of the law.
Unhappily, en of risk to this use of large particularly law a defendant violator’s, law duty v. Black is not uncommon. See violator’s, v. Lawrence Parke, 274, 278; & Co., Davis Mich Bartling 582; Warwick v. Dull Co., & Blackney, Berger, Eskovitz 231, 237; 272Mich *25 Curby Mastenbrook, 536, 539; 676, v. 288 Mich 683; v. Co., Bahlman Hudson Motor 682, Mich Car 290 Transporta
683, 695; аnd Samuelson v. Olson Co., 278, tion 324 Mich 283. foregoing precedents our discussion of does jurisdiction
not in in exhaust the cases this which assumption applied the doctrine inappropriately. of risk has been only
The cases cited demonstrate we have less than been restrained in our use of properly scope the doctrine within the limited of its origin common-law consistent we have less than been purposes in for which we re have upon language. lied the doctrine or its Consider identify able care has been taken to all of the uses put to which the doctrine State, has been in this effort without has pose to cite all in cases properly improperly. pur invoked, been or Our doing in been so has to demonstrate the need judicially re-evaluation cur doctrine’s utility. engaged rent cently have re Other courts been (1961),
in like effort. See Baird v. Cornelius (107 285) (concurring 2d Wis NW2d opinion 297), and McConville Farm Mutual v. State (113 (1962), Automobile Ins. Co. 2d 374 Wis 14). year following original sugges NW2d One concurring opinion tion do in so contained supra, supreme Cornelius, Baird the Wisconsin court, McConville v. State Farm Mutual Automo expurgated assumption Ins. Co., bile the doctrine of applied of risk as it had been theretofore auto guest passenger mobile cases Wiscon legislature adopted sin, State whose had not guest passenger act as ours.9 Far more has ex expurgation assump tensive, was however, Jersey. tion of risk in New in Meistrich There, 9.2101); 257.401 Ann (Stat 1960 Eev 9 CLS § § 375 Mioh (1959), 31 NJ 44 Attractions, Inc. Arena Casino supreme 1208), the court of 90, ALR2d A2d opinion Jersey, Mr. Chief Justice in an New assumption terminology of Weintraub, held Jersey in New thereafter nоt be used of risk should excepting “primary to mean that sense” in its duty breach no did owed either defendant Jersey New duty eliminated Thus was owed. assumption called its what is of risk the use of to an “secondary defense an affirmative sense” duty, manner con- in the same established breach tributory negligence to an defense affirmative Jersey duty. court The New breach of established 55) (p that when trial instructed that courts State’s primary sense, its as defined of risk in utilized: above, was to be *26 makes or “It a trial court will not matter whether pro- assumption risk, of the omits a reference to jury terminology
vided that if the plainly charged pressing in the used way merely of ex- it is another thought not liable that a defendant is plaintiff negligence; does of that absence negligently created, not assume risk defendant cf. (129 (1957), A2d Ford 434 429, v. Reichert 23 NJ 439); and that if defendant is found to have been plaintiff negligent, if defendant car- is barred contributory negligence, proving ries the of burden reasonably plaintiff’s i.e., care of a failure use the prudent either in man under all of the circumstances incurring in which the known risk or in manner proceeded the face of that risk.” Meistrich in 1959. Four Case decided Cyanamid years Co. later, in McGrath v. American per (1963), 238), (196 in a curiam NJ A2d opinion, Jersey disposed vestiges last New of the assumption (pp of of manner following risk 274-276); Attractions, Inc. Arena Casino “In Meistrich v. 1208), (155 (1959), we 90, 82 ALR2d A2d NJ assumption
pointed was thereto- of the risk out that incongruous in one sense senses: in two fore used negligent, while defendant was it meant the contribu- it other meant its sense torily negligent. that in truth there are saidWe negli- contributory negligence and but two issues— gence to be resolved standard —both reasonably prudent and that was erroneous man, it suggest assumption the risk was still another issue. hope
“It was our that after Meistrich the bench upon un- issues, bar would focus the true happily cling terminology assumption some to the of risk and continue to it a while be misled even purporting merely to think of it convertible equivalent contributory negligence. [*] [*] # terminology assump
“In Meistrich we said the pro tion of the risk not be used when it is should jected secondary sense, i.e., that of contribu its (31 p p tory negligence 82 ALR2d at 96, 155 A2d 55, at NJ 1217). thought, however, We ' ‘perhaps well-guarded charge comprehension’ primary in its will risk sense aid * * * p 1217). p 54, 155 NJ A2d 82 ALR2d Experience, ‘assumption however, indicates the term apt of risk’ is so create mist is better hope from the banished scene. we have heard We stay ‘negli the last of it. Henceforth let us ” gence’ ‘contributory negligence.’ 196 A2d *27 239-241.
Considering our conclusion that
doctrine of
assumption
properly
appli-
of risk in
is
this State
only
employment
in
cable
cases which an
rela-
tionship
parties,
perhaps,
well,
exists between the
as
express
assump-
where there has
an
contractual
been
375 Mich
considering
infre-
the relative
risk,10 and
tion of
go
today,
far
quency
we need not
so
of
cases
such
supreme
Jersey’s
to eliminate
court
as
New
did
resulting
injustice
possible
and
the confusion
assumption
and its
doctrine
risk
the misuse
assumption
is
risk
language.
when
Hereafter,
employer
employee
and
between
used
cases
employment
injuries
course of
incurred
compensa-
statutory
the workmen’s
bar of
where
supra,
applicable
where
cases
act,
tion
it
express
as-
has
contractual
there
been
claimed
clear to the
sumption of
be made
risk, it should
jury,
doctrine serves
one,
if there is
that the
scope
limiting
purpose
bility
lia-
of a defendant’s
injuries
no
and has
caused to
barring recovery
utility
has
defendant
where
duty
negligently
a
owed
found to
breached
been
to
have
again
plaintiff. Assumption
of risk should not
a
for,
be
substitute
or as
used
this
State as
neg-
corollary
contributory
supplement
of,
as
to,
ligence
explain
nor
used to
law vio-
should
;
duty
resulting
enlarged
care
from his
of due
lator’s
concepts
violation of law. The
of con-
traditional
ample
pre-
tributory negligence are more than
negligent
sent that affirmative
to established
defense
Harper
Torts,
acts. See
The Law of
James,
seq. (1956). Language
§
et
21.1
than that of
other
assumption
easily
of risk
can be found
describe
enlarged scope
duty
imposed
care
due
upon
voluntarily
statutory
one who
violates
or com-
mon-law standards of
care.
due
including
cases
above,
cited
Waltanen Wi
itala,
all
other
decided
cases
this
in which
Court
the doctrine of
language
improperly
or its
risk
has
used
been
Storage Trucking Co.,
The trial refusal as- sumption requested defendant him to risk as do Judgment was not affirmed. error.
T. Kavanagh, M. J., C. Dethmers, and and Black, JJ., Souris, J. O’Hara, concurred with (concurring affirmance). Black, J. This case, having previously assigned to been the writer ac cording practice, May to our was submitted 8th last. Accordingly, May opinion 28th on was sub propos mitted to Court, the other of the members ing by judgment that the circuit court’s be affirmed flatly overruling, principally posed in answer to the question question assumption 3),* (stated of risk patently Wiitala, errant case Waltanen by holding specified 504; Mich defendant-appellant’s reasons that questions
combinative 1 and negative 2 call for answers. Since then Justice reaching the same conclusions results as Souris, separately were thus earlier submitted, has written exhaustively fully, and more to affirm. I concur as verified below.
n the defendant body ment n beensomeone at necessarily be accident were worthy court “3. “2. Did the court err on voir dire “ ‘I “1. Did the separate requested charge * Defendant-appellant’s a at fault stating Did the think plaintiff.” hunting there review, I’d the fault of the must court court to excuse for cause * * *’ agree as follows: accident fault or there prospective jurors be err in err with follows: fault on if involving statement, giving her there is voir on defendant, would not someone’s (the dire examination in not its regard a jurors prospective juror). examination in charge shooting shooting part? to the have who stated that agreed would questions regarded then there must have been a on have it failed making hunting shooting; in a It wouldn’t permitting if there a state- hunting of risk trip. some- give as Mich 23. Black, Opinion by J. years many in recent have of our
Too decisions critically regrettably in recorded, been made separate important *29 of cases, means divisive furnishing opinions that far from which, the of sum every guidance reasonably court of last re- certain spell supposed provide, no more than to sort message please” you to bar “contend and decide as pro- a fecund and bench. The sad result has been dependable litigation com- creant of rather than poser appraising new contender thereof, each discordantly “law” the written can, as best of element refer, I but fallible human which judicial process, philosophical bent is, judge. of reinless trial repetition possible, arrest, In whenever effort judicial I have disservice, have decided—and such practice already adopt of withdraw- started —to ing opinions as have submitted situations such developed need for to eliminate here, better reports pagination bulging reading of our evermore support gain unequivocal majority a defi- and to upon opinion nitely opinion; controlling lawyers fairly depend. judges may I do so here. my signature affixed to has been In token thereof my opinion, May 28th Justice Souris’ aforesaid opinion is now withdrawn. opinion alia inter covers of Justice Souris pungent including 2 recent and
all authorities, opin Jersey withdrawn which in such cases,* New abrupt rejection incredible ion were aimed folly Wiita of Waltanen v. the name recorded under repeat was written record, what here, I la. in New opinion of the situation such withdrawn Jersey:
90, (196 [*] Meistrich A2d ALR2d 238). Casino v. 1208); McGrath American Arena Attractions, Inc., NJ Cyanamid Co., [31] NJ 44 (155 A2d v. Anderson. Opinionby Black, J. supreme Jersey fall “Late last court of New again, compelled speak .was this time with blunt- Cyanamid Co., In McGrath v. American ness. 241), having 272, 274, 276, A2d NJ Meistrich as referred to follows: “ hope ‘It our after Meistrich the bench upon and bar issues, would focus true un- happily cling terminology to the some of risk and continue be misled it even while merely purporting to think convertible equivalent the court concluded: contributory negligence,’ “ ‘Experience, however, indicates the term “as- sumption apt of risk” is so to create mist that it hope better banished from the scene. We we stay have with the last it. heard let Henceforth us ’ ” “negligence” “contributory negligence”. *30 I iterate and would reiterate above for Michi- gan. go just Unlike Justice I would “far as Souris, supreme Jersey’s as did New court to eliminate the possible injustice resulting confusion and misuse of the of risk doctrine.” How- agrees majority ever, since of the with Court Justice Souris’ milder method of I have treatment, joined unanimity him for the sake as much as possibly the case at hand can brew this area negligence law. (concurring affirmance).
Adams, J. in I concur with judge Justice Souris in affirmance of the trial for the reasons stated sections opinion. I do not believe it essential to decision assump- this case that determine the doctrine of away tion of risk should be done in with this State. judge charge The trial assump- concluded that a as to tion assumption given jury risk should not be to the since agree
of risk is not in
I
with
the case.
analysis
proofs.
that
of the
I
defer
would
considera-
time J. Smith, J., concurred Adams, (dissenting). This will be this Court’s Kelly, J. negligence and to what constitutes decision as first impor hunting cases, accident its due care apparent that we reаlize when tance becomes more year. purchase each licenses million hunters over one hunting just During came the deer season (December 1964) 500,000hunters en over a close following toll, results: Deer with the tered the woods by gunshot, and 48 dead 115,000; hunters wounded.1 hunting confined to déer accidents are not
That game small record hunters is disclosed showing and 12 600,000 licenses over issued and 164 accidents. fatal nonfatal accidents problem presented in the instant case jury necessity proper instructions to the judge’s to the disclosed the trial summation parties’ follows: claims, up “The claims the defendant stood plaintiff, he, and that boat, the front of of the boat. He claims the rear was seated the fell duck; that the defendant defendant shot at immediately that as he shot, after he down discharged gun and that fell his the second time plaintiff’s gun shot entered the from the defendant’s leg. left *31 plaintiff “It that the is the claim of the defendant required the circum- failed to use care under due Specifically, plaintiff existing. the stances then shooting negligent in claims that Anderson was Mr. State conservation ceived. Preliminary Figures figure, for the 1963 season are from official department.—Reporter. which will be revised as later reports records are re the Felgnek J. Dissenting Opinion Kelly, position place there in which gun a from his shooting in danger lose balance he would his that position, standing boat, in a gun a from his would his shooting impact, and in with the or roll rock the boat gun not have when he at a time did refilling pumping complete inor control, and under the chamber shotgun pump at a time when the complеte gun under his and not have boat did control.” analysis de- A concise court’s statement defend- and follows: Plaintiff claim is as as fendant’s they marsh, hunting the same had, ant were day many previous on the and, on accident, cedure; occasions pro- following they normal were their gun that that it was the defendant’s plain- plaintiff; time that on or about shot one shot tiff fired was shot defendant falling air the shot was fired into the at duck defend- boat after the shot was fired the out gun discharge, gun of another did not ant’s party discharge; find that if the should
did plaintiff defendant’s from the shot which struck gun, any way dis- he is not in because liable charge purely would have been unintentional plaintiff the risk that assumed accidental; joined the hunt- these acts when he the defendant experiences ing expedition, knowing past they using or both were boat and either knowing standing in them would be the boat firing from a that either or both of them would be participated standing position; plaintiff that the stumps position placing and, in the on boat placed negligently would if it was therefore, directly injury. to his have contributed injuria,” legal non maxim “Volenti From the fit consenting meaning done,” no “that to the assumption of known as there is created defense giv- Appellant in not court erred risk. claims the *32 Mich 23. 375 Opinion by Kelly, Dissenting J.
ing denying him benefit of this defense and request per- Ms that the be instructed that: “A danger son who or is that another knows has created doing dangerous act who nevertheless upon chooses to enter or to remain within the area of risk is not for entitled to recover harm uninten- tionally caused to him.” far-reaching
We have established the effect of stating:2 this dеfense of assumed risk “Assumption risk, course, is a defense to negligence, ordinary negligence, whether it be ‘mere’ negligence ‘plus or such gard a wilful and wanton disre- public safety,’ go up to make stat- utory ‘gross negligence or wilful and wanton mis- required guest passenger conduct’ under the act. injuria. Volenti non defendant’s Whether the fit merely casually negligent conduct was reckless or gist immaterial, the defense is plaintiff took his chances.” showing The 1963 record 1,164,360licenses issued fatal and 220 nonfatal accidents, does put hunting dangerous category in that or column negligent, where careless, the' or reckless hunter can by saying “you excuse himself consented, therefore you your no took chances, there- done— you damages.” fore can’t recover during Eleven hunters were killed the 1964 deer hunting Thanksgiving season. Over weekend (6 p.m. Wednesday midnight following Sun- day) people were killed in automobile accidents period. just five-day in that than It less would be logical apply risk to the doctrine of assumed driving apply automobile as it would hunt- (cid:127) ing. __ opinion disclosing Justice Souris’ re- extensive past search concludes that this has in im- Court Waltanen Wiitala, 361 Mich v. Dissenting J. Kelly, many applied properly assumed risk cases and application greatly restricted of this recommends future. in the doctrine
Michigan’s application this rule has been sim- *33 repute, high among held in to several States ilar Pennsylvania, California, Massachusetts, are which York, and Ohio. New (cid:127) necessary agree appeal or dis- in to this It is past agree of the with indictment Justice Souris’ agree it to Suffice for the future. is recommendation judge’s re- “The trial his final that: with fusal sentenсe charge jury risk on as to the requested him to was not error.” do defendant jury: the The court instructed gun you that “If that was find it the defendant’s duty plaintiff, the then it shot the becomes completely with- that was to he defendant out establish any negligence.” fault; that he free was judg- Appellant, paragraph in his motion for 7 of notwithstanding verdict, stated: ment the ' jury charge to the “That the court erred its jury that it decided it that was stated that once had plaintiff, gun then defendant’s shot the that proof to show the burden of shifted the defendant to utterly he that the acci- that fault or was without improperly charge dent This was inevitable. placed upon proof the de- shifted burden of properly proof fendant burden of that should plaintiff’s.” have been the ruling
In the court motion, his on defendant’s appellant answered as follows: duty question court feels “On involved Manning, 112 Mich bound Bahel follow quoted Rep 381) LRA 523,67Am St Agricultural approval Saginaw County in Bauer v. Society, Mich 616. 375 Mich Kelly, J. Dissenting Opinion charge of the “The court to was taken
practically from Bahel I verbatim Case. should say in that this connection Í think the rule too being harsh, but certain admonished members Supreme the tempt the trial court shouldn’t at Court change law, but should take it as required give charge then gave. me to that I exists— something “I think the rule should be na- this go together ture : That when is, hunters out there a certain element of risk, assumed which is guilty effect that the other hunter will not be of fail- ure of due care connection with the use of fire- necessary hunting arms and the risks incident to they ventures, and that insurers, should not become they are under the rule as it is the Bahel Case.” (Emphasis оurs.)
I am in accord trial full with the court’s state charge disagree ment that with harsh,” his was “too required give conclusion *34 harsh rule because of our in Bahel Man decisions ning Saginaw Agricultural County and Bauer v. So ciety, supra. responsibility
Bahel a decided defendant’s for shooting public in “the room of the hotel,” village Otsego Michigan. in located Lake, the parties hunting That the were not at the time of shooting clearly following by the is established the quotation opinion (p 32): from that (defendant) hunting day, “He had been that (the gun) cartridges. had loaded it fact that he believed that he had removed them all from gun responsibility not would relieve him from snapping pointed directly it, when he knew it was plaintiff.” towards the by syllabus 1 Also, in that case which reads: snaps gun, knowing pointed “One who it to be qt guilty per negligence person, another se, Felones, v. Anderson. Dissenting Opinion J. Kelly, person damages, at com- to both such is liable §§9110- the statute How Stat law and under mon 9113) designed arms, the prevent fire- use of to the careless discharge injuries occasioned weapon; it no that he defense used satisfy ordinary gun that the was means to himself snapped to he unloaded, so when and believed it off.” responsibility for considered
In Bauer this Court shooting gallery a fair at that fired shot was n —a shot boy year a four one-half old that struck midway walking with his mother. down who was justification Clearly, not two cases are these They ap- complained giving ply about. the instruction the statute or that come within to those cases applicable careless use of fire- common-law arms, rule carelessly guns people, pointing such at firing firing guns vicinity people, targets, applicable cetera, in the determination et but are negligence hunting cases. accident supreme was confronted The California court3 question presented to Court, with the the sole difference now this exact
being de- that in the California trial cision, “Plaintiffs court erred contend that failing jury in injury to instruct the that ‘One who causes by discharging a firearm must, another liability, order excuse himself from that show ” absolutely was fault.’ without supreme The California held the trial court refusing give foregoing court did not err in instructing instruction; in and court correct neg- that the test ligence ordinary is failure to use and that the care, proffered placed improperly instruction the burden *35 proof upon the defendant.
An instruction similar to the one we are here con- sidering, namely, prove that defendant “that he was Jensen v. Minard, 44 Cal 2d (282 P2d 7). 375 Dissenting by Kelly, J.
completely rejected by fault,” without was the West supreme Virginia hunting court in a accident case,4 115): stating (p the court injured by “At commonlaw where one was the dis-
charge gun another, hands utterly defense available was defendant without fault. The modern however, has doctrine, places liability neg- upon modified this rule, ligence.” court held reasonable care should be the syllabus reading: test, negligence “Reasonable care and relative are degree required sports- terms, care of a using man a firearm must be commensurate dangers avoided.” Virginia supreme The West court’s conclusion by (2d ed), sustained on § Prosser Torts under “Un- pp avoidable Accident,” 29, 118, 119, which calls “very responsibility” imposed attention to the strict “early common law” that: gun, accidentally “The defendant who fired plaintiff, wounded the was held liable unless he could -‘judged establish that the accident was inevitable— utterly without fault; if a man force take my you upon hand strike and the burden was —’ prove him to that such the case,” progress away “the of the law has been position” (p 119): from this and that gunshot “In a few States, has been said in cases upon that the burden that that the defendant to show negligence; he was free but it is not clear say these mean cases than that suf- more there is ficient evidence the occurrence prima the accident itself to make out a facie case.” Koontz v. Whitney, 109 Va 114 W SE 797). *36 -y. 67 Dissenting Opinion J. by Kelly, That the instruction in the instant case would applied hunting not meet test as Wisconsin Harper Holcomb, is cases established Wis (130 1128), following (p 191): NW [Negligence exercise] “such care is failure to ordinarily great exercised mass mankind * * * under same similar circumstances. ordinary “True, what would be under some care * * * circumstances would not be under others. As juries danger in- increases and the seriousness creating, to occur liable from failure to avoid meeting quantum danger, or avoid such increases the of care should and, increase as matter common knowledge, great with the mass does mankind inis, increase. But while that is there circum- true great danger, stances same as those of little peril, degrees say the three well known of care. To very in either situation that one exercise the must highest degree, in order to be free from failure ordinary palpably wrong. to exercise care, would be very very Where is re- much, little, as wherе care quired care.” ordinary there the medium denominated (Emphasis ours.) Hampshire supreme The New court5 refused agree plaintiff proof shot that defendant injured plaintiff, mistaking a deer, him for negligence, by stating: established defendant’s “If the defendant truth, told the he did fire * * * taking precaution. without some Whether story the defendant’s and, was entitled belief, if precaution so, whether the he took constituted rea- plainly questions sonable care were of fact.” regard contributory negligence,
In the court jury stated that the fact was entitled to consider the special gunner’s did not wear a outfit comprising cap a red on coat,- and checkered but had pair pants cap of khaki common and coat. Seavey, Webster v. 1202). 83 NH 60 A ALR 375 Mich Dissenting Kelly, Opinion by J. emphasized
The court the test should be whether reasonably the defendant hunter did should what he required by reversing do verdict for give defendant because the court failed to the fol- lowing (p 63): instruction “ *37 goes gunning may reasonably ‘One who not anticipate a that man in will in the woods fact be by may
met, but reason of be, the risk one he upon reasonably required is called to do what is identify object to hears at it. before he fires who One rustling may a and sees the bushes move reasonably anticipate that cause of such rustle moving in and a the bushes a man instead is by may to do deer, but reason of the risk that be man upon instead of a deer, is called what ” reasonably required to find out.’ by hunting A duck accident was considered case rejected appeal.6 The court Louisiana court of that in be held liable the dеfendant’s claim order to proof gence, gross negli- guilty must show he was necessary proof stated negligence. actionable The court defined actionable negligence (p 916): as practical purposes, “It is so difficult to be, impossible negligence’ to define the term ‘actionable thoroughly comprehensive in a and all-inclusive inevitably depend sense since the definition must upon surrounding generally, But, circumstances.
we think that lies in actionable the failure degree to exercise that re- of care which should be quired person ordinarily prudent of an under existing Negligence, § Jur, 38 Am circumstances; p 643.” ruling by supreme
A similar court was made hunting considering of Massachusetts7 accident 6 7 Normand Adams Dunton, v. Normand Mass 63 (La App), NE S2d 90). Dissenting Opinion J. Kelly, hunting defendant were ducks where in affirm- in a duck blind. In boat a flat bottomed (p 66): judgment ing court stated plaintiff, controlling handling liability of one “But the gun contends, not, as the defendant does a loaded negligence; upon gross depend a failure to if there it exists used would have been use the which care prudence person in all the attend- of reasonable ant circumstances.” Pennsylvania supreme awith court dealt gunning, persons out were “where two
case8 walking walking Defendant, in advance.” one was plain- accidentally shot and wounded rear, in the tiff. The trial instructed: court “ to which resulted, and as ‘If the which ordinary controversy, care no there is is one reasonably anticipated, might foresight not have on the action; if, not liable this defendant is instrument, the other from the nature of hand, posi- position parties, as to the situаtion *38 position undergrowth, the bushes, tion of timber, injured, person gun the the of the in relation to its might ought defendant to have foreseen there suggestion if it was this, be such an accident as plaintiff ordinary foresight prudence that the discharge might injured by defend- of the be damages gun, responsible in ant’s would be ” negligence.’ judg- affirming approving In the instruction (p Pennsylvania plaintiff, stated court ment for 608): duty fixed, but not is “Where standard developed by with the circumstances
varies negligence question testimony, for the is applied jury. facts to the No fixed standard could he proper jury, under for the this case. It was Winans Randolph, 169 Pa 606 (32 A 622). 375 [Mai. Dissenting Opinion J. by Kelly, instructions, determine whether the defendant had exercised due care.” erroneously
Unfortunately, the trial court decided give him to the instruction forced that our decisions That com- “too harsh.” instruction he considered pelling prove he was without fault if defendant gun plaintiff jury shot constituted believed especially following the trial court’s error, reversible during the examination remark made injury not that an such as suffered could somebody’s fault. have occurred but neg- majority constitutes A conclusion as to what ligence hunting accident cases and due care expressed ways cases referred various opinion, quote same with this we following summation: Virginia degree required of West care —“The sportsman using a firearm must be commensurate dangers
with the to be avoided.” lies the fail- Louisiana—“Actionable degree of care which should ure exercise ordinarily person required prudent under of an existing circumstances.” Pennsylvania resulted, the—“If controversy, is one which as to which there is no might ordinary foresight have reason- care and ably anticipated, in this not liable the defendant is action.” * * * “Liability if there exists Massachusetts — been the care which would have a failure to use prudence by person in all the of reasonable used
attendant circumstances.” *39 Negligence “such failure to exercise is Wisconsin— great ordinarily of mass care as is exercised similar circumstances.” mankind under the same 1965] Dissenting Kelly, J. majority
This view of all the States not in con- negligence flict with our recent decision re provide guidance care,9 dne mining and both will in deter- due care and on retrial of this guide a sportsmen, case and to bench, bar, and accident cases the future. judgment should be reversed and the case appellant.
remanded. Costs to
City
Frederick
(June,
Detroit
1963),
Separate Opinion. Kelly, Black, Adams, JJ. op op Guilty. 1. Criminal Law —Withdrawal Plea right part There is no absolute on the an accused to withdraw of plea guilty. of op op Guilty op 2. Same —Withdrawal Plea —Discretion Court. judge’s withdrawing plea A trial discretion in the matter guilty great liberality should be exercised with where with- sought sentence, drawal is trial and but the trial court before grant request need not persuaded to withdraw when request obviously frivolous. op op Guilty Leaving
3. Same —Withdrawal Plea — Scene Fatal Accident. Bequest guilty charge plea leaving to withdraw the scene stopping, identifying himself, accident without fatal rendering assistance, properly denied, held, under record show- ing preliminary examination, plea guilty evidence taken at [1 [5] — Right 6,4, 14 Am to withdraw 14 Am Jur, Jur, References Criminal Law 241. pleas Criminal for Points § guilty. Law 286 § 20 ALB in Headnotes et seq. 66 ALB 628.