Walters v. Sargent , 46 Mich. App. 379 ( 1973 )

Danhof, J.

(affirming in part and reversing in part). On November 20, 1969, the defendants met and agreed to hunt deer in a triangular area designated by boundaries of Merrillville Road, running north and south, 11-Mile Road, running east and west, and an electric power line which ran northeasterly just west of Merrillville Road in Eaton Township, Lake County, Michigan. Sometime after 4 p.m. they engaged in a deer run¹ in this area. Defendant, James Jay Sargent, a participant in the deer run, was walking towards Merrill-ville Road. He saw a deer in front of him and fired a warning shot so that the other members of the hunting party would know that a deer was coming in their direction.

At about the same time, defendant, James Jay Sargent, fired his rifle, plaintiff, Jewell Walters, Jr., and two companions were proceeding in an automobile south on Merrillville Road. Plaintiff, Jewell Walters, Jr., was seated in the middle of the front seat in between his two companions. As the vehicle was proceeding on Merrillville Road, he was struck by a bullet in the right shoulder. The bullet was never found.

Plaintiffs filed suit against all of the defendants on August 17, 1970, alleging that the injuries to the plaintiff were the result of all the defendants being jointly negligent. A jury trial commenced on November 1, 1971. After plaintiffs rested, defendants moved for a directed verdict which was granted by the trial court.

The basis for the granting of the directed verdict by the trial court was that the uncontroverted facts, both physical and circumstantial, indicated that the bullet that the defendant, James Jay Sargent, fired could not have possibly been the bullet that struck the plaintiff, Jewell Walters, Jr. Thus, the court ruled that because the firing of the bullet by defendant, James Jay Sargent, could not have been the proximate cause of the injury to the plaintiff, none of the defendants could be liable as being jointly negligent. Therefore, the only issue here on appeal is whether or not the trial court erred in granting the directed verdict for the defendants.

When the trial court directs a verdict in favor of the defendant at the conclusion of the plaintiffs proofs we must view the facts in the light most favorable to the plaintiff. The trial court is justified in granting a directed verdict in such instances only where reasonable minds could not differ upon the facts or the inferences to be drawn therefrom. McKinney v Yelavich, 352 Mich 687 (1958); Ackerberg v Muskegon Osteopathic Hospital, 366 Mich 596 (1962).

While the trial court granted the directed verdict upon the basis that the bullet fired by the defendant, James Jay Sargent, could not possibly have been the one that struck plaintiff, Walters, we are not bound solely to this determination, since this Court is empowered to make any order or judgment which ought to have been made or entered by the trial court. GCR 1963, 820.1(7).

Examination of the complaint in the instant case discloses that the plaintiffs alleged that the defendants were jointly engaged in a negligent operation of hunting deer. As such, a valid cause of action was alleged against said defendants. See McCoy v DeLiefde, 376 Mich 198 (1965). However, as was stated in McCoy, p 208:

"Whether, upon trial, plaintiff can prove facts to support his allegations is, of course, a question the determination of which must await that event.”

Examination of the record in this case indicates, even viewing the facts in a light most favorable to the plaintiffs, that plaintiffs have failed to establish that the mode of hunting was either negligent or recklessly conducted. Quite to the contrary, even the companions of plaintiff, Jewell Walters, Jr., testified that this was a common mode of hunting, and the record does not disclose any concerted activity on the part of all the defendants which would in any way prove that the mode or operation of the deer hunt was conducted in a negligent or careless manner. Thus, we conclude that the trial court was correct in granting a verdict for the defendants insofar as it relates to the allegation of a negligently conducted hunting operation.

While the plaintiffs’ complaint sounded against the defendants jointly they pray for a joint and several judgment. We conclude that since the facts disclose that defendant, James Jay Sargent, did admittedly fire his rifle the plaintiffs should be allowed to amend their complaint to conform to such proofs as it concerns the individual liability of defendant, James Jay Sargent. GCR 1963, 118.3.

Thus, insofar as whether the injuries to the plaintiffs were proximately caused by the negligence of defendant, James Jay Sargent, is a question of fact to be determined by the jury.

Reversed and remanded for further proceedings not inconsistent with this opinion. No costs, neither party having prevailed in full.

R. B. Burns, P. J., concurred.

1 "That is where you get a few guys lined up on one site and four or five guys drive this way, to get a deer out so the other guys can get a shot at it.” Testimony of James Jay Sargent (p 194, Tr).