Pundt v. McNeill

500 S.W.2d 559, 1973 Tex. App. LEXIS 3036
CourtCourt of Appeals of Texas
DecidedJuly 31, 1973
DocketNo. 778
StatusPublished
Cited by3 cases

This text of 500 S.W.2d 559 (Pundt v. McNeill) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pundt v. McNeill, 500 S.W.2d 559, 1973 Tex. App. LEXIS 3036 (Tex. Ct. App. 1973).

Opinion

OPINION

NYE, Chief Justice.

This is a suit by plaintiff, M. E. McNeill, against Bryan H. Pundt and his wife, seeking damages for personal injuries received when Bryan Pundt allegedly shot the plaintiff while hunting. The defendants filed pleas of privilege seeking to have the case transferred to Bee County, the county of their residence. Plaintiff filed a controverting plea claiming the venue was properly set in Live Oak County, where the accident took place, based upon several exceptions to the venue statute. The trial court, sitting without a jury, overruled the defendants’ pleas of privilege, whereupon they have perfected their appeal to this court.

On Christmas Day in 1967 the plaintiff and his son were deer hunting in Speck New’s pasture in Live Oak County. The plaintiff and his son were hunting along a division fence between the New pasture and the adjoining Nichols pasture. They crossed over into the New pasture from the Nichols side, crawling through the division fence. At about 7:00 a. m., after they had walked about 150 yards from the division fence and while bent over lifting a small limb from his path, the plaintiff was [561]*561shot. The bullet entered his right side, touched his backbone and came out the left side. The plaintiff was facing west, so it was estimated that the bullet came from the north. He told his son to summon aid and to get his mother. Their home was about two and one-half miles from where the accident took place. The son left, screaming and yelling all the way. The plaintiff managed to crawl toward the division fence to an opening where he lay. About that time plaintiff heard a car start up, so he fired his rifle to attract attention. He fired eight to ten times until all of his shells were gone. The car did not stop but continued on.

The evidence showed that the defendant, Bryan H. Pundt, was hunting the same morning and was admittedly near the place where the accident took place at 6:45 a. m. The defendant told the sheriff during a later investigation that he saw a deer jump the division fence and that he fired one shot at the deer. He stated that he did not go and look to see if the deer was down or killed, but stated that he went back to the camphouse to let it die. The defendant stated that he did not hear any other shots. He admitted firing his shot into the New pasture where the plaintiff was hunting. He said that he did not hear the shots that the plaintiff fired to summon help.

Arlon Retzloff, a witness, was hunting with his brother in another pasture one-half to one mile away from the place where plaintiff was shot. He testified that he heard the shot that hit the plaintiff. Shortly thereafter he heard someone calling for help. The yelling he heard got closer and closer and then finally went farther and farther away until it faded out. Retzloff stated that after the first shot was fired he heard eight to ten other shots spaced apart. He realized that something went wrong. He and his brother left the deer stand and went over to the defendants’ camphouse. They blew their car horn, attempting to summon aid, but nobody came to the door, although a car was parked outside.

About thirty minutes after the plaintiff had been shot, the plaintiff’s son, a neighbor, and the plaintiff’s wife found the plaintiff in the clearing and took him to the hospital. Shortly thereafter the sheriff in George West was notified of the accident. Sheriff Bob Reagan went to the plaintiff’s house to find out where the shooting occurred. Two of the sheriff’s deputies arrived at the scene approximately the same time the sheriff did. One of the deputies, Sam Huff, is now sheriff of Live Oak County.

The sheriff and the two deputies conducted an investigation of the shooting. They found the place where McNeill was shot, there being lots of blood at that location. They then followed the blood back toward the fence line to where the plaintiff laid down waiting for someone to rescue him. At that place they found eight to ten .270 hulls that the plaintiff had fired seeking help. The sheriff and his investigating team picked up the tracks of the plaintiff and his boy where they crossed the fence from the Nichols pasture to the New pasture and on out into the pasture to where McNeill was shot. At a place fairly close to where they crossed the division fence, they found an oak tree that was used as a deer stand. It had some boards nailed into it and a place to sit some seven to eight feet above the ground. While investigating, the sheriff picked up a third set of human tracks in the Nichols pasture. He followed these tracks through the division fence into the New pasture to the oak tree. The third set of tracks were the only other tracks found in the entire area and these were fresh tracks.

The sheriff testified that the shot that hit McNeill came from the oak tree. The plaintiff was walking in a westerly direction and the shot came from the north, entering on the plaintiff’s right side and exiting on the left. The tree was north of the location where plaintiff was shot. Sam Huff, the present sheriff, but deputy sheriff at the time of the shooting, testified that he also found the third set of tracks [562]*562that led to the oak tree where the tracks stopped. He stated that evidently the man making the tracks climbed up in the tree. He testified that he also found that the same tracks went a part of the way to where McNeill was shot and then stopped. The tracks then went back through the fence and over into the Nichols pasture. The plaintiff was shot about 300 feet from the oak tree, and the tracks travelled to about 200 feet from where the plaintiff had been shot. The tracks then turned around and went back in the direction of the division fence.

Sheriff Huff testified that a man in the oak tree would have had a good view of the area and would have been able to determine the difference between a man and a deer from the distance at which McNeill had been shot. The brush in the pasture had been chained down and was not too thick nor too high.

While Sheriff Reagan and his two deputies were making the investigation, Mrs. Pundt and two children came up to the scene. She appeared rather nervous at the time. Mr. Pundt, the defendant, came up to the area about 9:00 a. m. He told the sheriff that he was looking for a deer that he had shot at. The sheriff noticed that he did not have his gun with him. Mr. Pundt admitted to the sheriff that he had shot his gun one time a little before 7:00 a. m. and heard no other shots. He stated that he thought that he had shot a deer but he did not go and look to see if it was a deer. He stated that he went back to the camphouse to let the deer lie down and die.

Later, Mr. and Mrs. Pundt went with the sheriff voluntarily to the courthouse in George West, and while at the courthouse, Mr. Pundt made a statement together with a sketch. While Mrs. Pundt was with the sheriff she also made a statement. Sheriff Reagan testified that she told him “She felt sure that her husband had shot this man, and she hoped he got along all right.”

Mr. Pundt’s statement and diagram were introduced into evidence. If such statement and diagram were to be believed, they indicated that Mr. Pundt was hunting near where the plaintiff was shot but at a location where it would be unlikely for the bullet to have hit the plaintiff. The particular location where Pundt said he shot at a deer was south of where the plaintiff was hit. Pundt argues here that because of his location it was impossible for his shot to have hit the plaintiff. Mr. Pundt testified that he shot from outside his car and across the division fence.

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567 S.W.2d 254 (Court of Appeals of Texas, 1978)
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Bluebook (online)
500 S.W.2d 559, 1973 Tex. App. LEXIS 3036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pundt-v-mcneill-texapp-1973.