Talmage v. Smith

101 Mich. 370, 59 N.W. 656 (1894)



Where in an action of trespass for the throwing of a stick by the defendant, which struck the plaintiff, the right of recovery is made to depend upon an intention on the part of the defendant to hit somebody, and to inflict an unwarranted injury upon someone, the fact that the injury resulted to another than was intended will not relieve the defendant from liability.


Defendant discovered several boys on the roof of one of the sheds located in his property. Defendant ordered the boys to get down, and they at once did so. He then passed around to where he had a view of the roof of another shed, and saw two boys on the roof. Defendant claimed that he did not see plaintiff. Defendant ordered the boys to get down. Before they succeeded in doing so, defendant took a stick and threw it in the direction of the boys. Plaintiff's father testified that defendant said to him that he threw the stick, intending it for one of the boys on the roof. The stick hit plaintiff just above the eye, which resulted in the total loss of the sight of the eye. The trial court ruled in favor of plaintiff in his action of trespass. On appeal, the state supreme court affirmed.


Was defendant liable for the injury inflicted upon the trespassing plaintiff where the injury was not that which defendant intended?




The jury had sufficient evidence to find that defendant intended to hit the other boy and that defendant was using unreasonable and unnecessary force to get the boys off the shed. Thus, there was no error in finding defendant liable to plaintiff. The case was to be distinguished from a case of negligence on the part of defendant. The jury found the act to have been a willful act

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