Summers v. Tice:
Supreme Court of California
33 Cal.2d 80 (1948)
Issue: May the judgment against both defendants stand?
Application: Defendants argue 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
-Tice argues that there is evidence to show that the shot which struck the plaintiff came from Simonson's gun, because of admissions allegedly made by him to third person
-Further contends that there was no evidence that the shot came from his gun
-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.
-Oliver v. Miles: Two hunters, who were negligent in firing, hit a third person, who was injured. Court held them to both be liable for the injury, although only one could have caused it.
-If one of the defendants can escape liability, then both may escape liability, and leave the plaintiff without a viable remedy
-Ybarra: Defendant is in the better position to offer evidence to determine who caused the injury. (Injured unconscious patient on the operating table). All those who had connection with the operation could be held liable.
-Defendants argue that the plaintiff has now changed the theory of his case in claiming a concert of action; that he did not plead or prove such concern.
-From what has been said, no change in theory has been made
-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.
-Policy reasons support this contention, that 2 wrongdoers should bear the cost, instead of the innocent plaintiff
-Both defendants and plaintiffs were hunting, when both defendants fired in the plaintiffs direction
-One shot struck him in the eye, while the other shot struck him in the lip
-Both defendants were using the same gauge shotgun, and the same size shot
-Trial Court: Found both defendants negligent and found that plaintiff was in no way at fault
-Unable to decide which defendant's shot hit the plaintiff, the judge awarded judgment against both defendants