Opinion · Michigan Supreme Court

Benson v. Ross

143 Mich. 452

Type
Opinion
Court
Michigan Supreme Court
Jurisdiction
Michigan
Date
1906-03-27
Topic
general

How later courts describe this case

  • where evidence showed three defendants were shooting at a target using the gun by turns, all defendants were acting in concert in a negligent manner and it was unnecessary for plaintiff to show that the shot which injured him was fired by a particular defendant

Citator

UpLaw has not yet analyzed Benson v. Ross. The absence of a flag is not a finding that it is good law.

Cited by
23 opinions
Montgomery, J.

This action was brought against the three defendants. Defendant Haight was not served, and the case proceeded against the defendants Ross. At the conclusion of the testimony the circuit judge directed a verdict for defendants, and plaintiff brings error.

The sole question presented is whether there was any testimony tending to show defendants’ responsibility for the injury. It is undisputed that on the Fourth of July, 1902, the defendant Haight came to the premises of the defendant William J. Ross, bringing with him a Flobert rifle, and that a bullet was fired from this rifle which, by misadventure, struck and inflicted serious injury upon the plaintiff. There was testimony on the plaintiff’s behalf tending to show that at the time this injury to plaintiff occurred the three defendants were engaged in shooting *453 at a mark, using the rifle by turns. The plaintiff’s testimony failed to show who held the gun when the shot which caused the injury was fired. Defendants’ testimony tended to show that, some time before the accident, the two defendants Boss had ceased to participate in the firing, and that William J. Boss had requested Haight to shoot no more. The circuit judge seems to have deemed it essential to plaintiff’s case to show that the shot was fired by one of the two contesting defendants, or by his affirmative direction. We think this view of the defendants’ responsibility too restricted.

There was testimony tending to show that the three defendants were acting in concert in an act, not only violating a city ordinance, but palpably and grossly negligent. If the jury found such concert of action, all would be liable as joint tort feasors. Jenne v. Sutton, 43 N. J. Law, 257; Mahnke v. Freer, 126 Mich. 576; Conradt v. Clauve, 93 Ind. 476. Whether the defendants’ testimony was sufficient to overcome the evidence offered on plaintiff’s behalf was a question for the jury.

Judgment reversed, and a new trial ordered.

McAlvay, Grant, Hooker, and Moore, JJ., concurred.