Summers
v. Tice
Supreme
Court of
33
Cal.2d 80, 199 P.2d 1.
Prosser,
pp. 279-281
Facts: Two guys were trying to
shoot a quail but missed and one of them hit the plaintiff. Nobody knows which one, but one and only one defendant
hit the plaintiff. The plaintiff sued
and won verdicts at trial against both defendants.
Issue: Can both defendants be held
liable when only one was in fact responsible?
Rule: Both defendants may be held
liable if both were negligent.
Analysis: As a matter of policy,
confusion over who dunnit should not bar recovery by the plaintiff. Since the court finds that both defendants
were negligent and thus both in the wrong, it is not considered unfair to make
them both pay. The court argues that if
one was more responsible than the other, they should fight it out amongst
themselves.
Conclusion: The judgment of the trial
court was affirmed.