Facts
- Lee Miles sued L. S. Oliver and Gordon Shamburger for injuries to Miles’s minor son, Lavell, who was shot in the eye while walking within the highway right-of-way.
- Oliver and Shamburger went bird hunting together near Collinsville, Mississippi, traveling by car and hunting the same covey with their dogs.
- The birds flushed and flew over the hunters and across a public highway.
- Both hunters fired back toward the highway at the same time as Lavell was walking along a footpath within the highway right-of-way.
- Lavell was struck by a shot and lost an eye; the evidence did not identify which hunter’s shot caused the injury.
- In the circuit court trial de novo, the judge indicated a directed verdict would be granted unless Miles proceeded against only one defendant; Miles took a nonsuit as to Shamburger and obtained a verdict against Oliver.
Issues
- When two hunters jointly participate in firing across a public highway and a traveler is injured, may the plaintiff recover from one hunter even if the evidence cannot determine whose shot caused the injury?
- In an action pleaded as a joint tort against two defendants, may the plaintiff take a nonsuit as to one defendant and still recover against the other?
Decision
- The Mississippi Supreme Court affirmed the judgment for Miles against Oliver.
- The court held both hunters’ conduct constituted a joint tort arising from their joint hunting expedition and concurrent shooting toward the highway.
- The court held liability was joint and several, so recovery could be had against either participant even though the specific shooter could not be identified.
- The plaintiff’s nonsuit as to one defendant did not bar recovery against the remaining defendant in a joint-tort action.
Legal Principles
- In suits for a joint tort, defendants are jointly and severally liable; the plaintiff may recover against either tortfeasor.
- Where two parties act together in a hunting expedition and both negligently fire across a public highway, causing injury to a traveler, each is liable for the entire harm even if it cannot be determined whose shot struck the victim.
- Firing toward or across a public highway where travelers may be present constitutes negligent conduct supporting tort liability when injury results.
Conclusion
The court imposed joint and several liability on hunters who acted together in negligently firing toward a public highway, allowing the injured party to recover from a single defendant despite uncertainty about which gun fired the injuring shot and despite the plaintiff’s nonsuit as to the other alleged joint tortfeasor.