Talmage v. Smith

Michigan Supreme Court · 1894 · Torts

TortsBatteryTransferred IntentTrespass to Landintentional tortbatterytransferred intentwillful act

Facts

Defendant saw boys on the roofs of his sheds and ordered them to get down. Before two boys in his view had gotten down, defendant threw a stick in their direction, and there was testimony tending to show he threw it at one of those boys intending to hit him. The stick missed its intended target and struck plaintiff above the eye, causing total loss of sight in that eye. The proof was unclear whether defendant saw plaintiff on the shed, but there was some testimony from which the jury might have found that plaintiff was within defendant's view.

Issue

Whether a defendant who intentionally throws a stick at one boy using unreasonable and excessive force is liable when the stick instead strikes and injures another boy whom the defendant may not have seen. The case also presented whether plaintiff's status as a trespasser or contributory negligence barred recovery.

Rule

If a defendant commits a willful unlawful act by throwing an object intending to hit someone with unreasonable and excessive force, he is liable for the resulting injury even though the object strikes a different person than the one intended. Contributory negligence has no place where the plaintiff could not have anticipated the intentional throwing of the missile, and the plaintiff's trespasser status does not place him beyond legal protection.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Toledo, Owen Hartley found several teenagers sitting on the roof of his storage garage. Angry, he hurled a wooden mallet at Nolan Price, intending to hit Nolan and knock him off the roof; the mallet missed Nolan and struck Maya Ortiz, whom Owen had not noticed, breaking her cheekbone.

If Maya sues Owen for her injury, which is the strongest basis for liability under the governing rule?

Explanation. The majority rule makes liability depend on whether the defendant intended to hit somebody and used unreasonable and excessive force, thereby committing a willful unlawful act. If so, injury to a different person than the one intended does not relieve the defendant from responsibility. The defendant need not have specifically seen or intended to hit the actual victim.