The opinion of the court was delivered by: MCVICAR
This action came on for hearing, and after hearing and consideration thereof, the Court makes the following Findings of Fact, Conclusions of Law and Order:
1. The plaintiff in this action, John H. Collins is a citizen of the Commonwealth of Pennsylvania, residing in the Village of Hyde, Clearfield County, and had served in the United States Army sometime prior to December 18, 1945.
2. Corporal John Cushner, a Military Policeman, member of the United States Army, was at Hyde, having been assigned to the Clearfield, Pennsylvania area by his superior officer for a short tour of duty.
3. The duties of Corporal Cushner included locating members of the Army who were A.W.O.L., requiring no specified hours of work.
4. On the evening of December 18, 1945, Corporal Cushner and an associate Military Policeman were in the Hyde Hotel, having come to the hotel in an Army truck assigned to Cushner.
5. The plaintiff, John H. Collins and two companions, on this same evening of December 18, 1951 were in the Hyde Hotel, in the same room as Corporal Cushner and his party.
6. Collins and his two companions left the hotel, crossed the street to where the United States Army truck was parked.
7. Collins opened the cab of the truck, part of his body being inside the truck. His two companions were at the side and rear of the truck.
9. Corporal Cushner then drew and cocked his automatic and proceeded to the truck.
10. Collins and his two companions were lined up at gun point, when Collins made a sudden move for the purpose of seizing Cushner's gun.
11. Collins' hand or body touched the gun while they were wrestling, causing the gun to discharge, and ...