George Brown vs. George K. Kendall.
Shaw, C. J. This is an action of
trespass, vi et armis,
brought by George Brown against George K. Kendall, for an assault and battery;
and the original defendant having died pending the action, his executrix has
been summoned in. The rule of the common law, by which this action would abate
by the death of either party, is reversed in this commonwealth by statute,
which provides that actions of trespass for assault and battery shall survive.
The facts set forth in the bill of exceptions preclude the supposition, that the blow, inflicted by the hand of the defendant upon the person of the plaintiff, was intentional. The whole case proceeds on the assumption, that the damage sustained by the plaintiff, from the stick held by the defendant, was inadvertent and unintentional; and the case involves the question how far, and under what qualifications, the party by whose unconscious act the damage was done is responsible for it. We use the term [**5] "unintentional" rather than involuntary, because in some of the cases, it is stated, that the act of holding and using a weapon or instrument, the movement of which is the immediate cause of hurt to another, is a voluntary act, although its particular effect in hitting and hurting another is not within the purpose or intention of the party doing the act.
It appears to us,
that some of the confusion in the cases on this subject has grown out of the
long-vexed question, under the rule of the common law, whether a party's
remedy, where he has one, should be sought in an action of the case, or of [*295]
trespass. This is very distinguishable from the question, whether in a
given case, any action will lie. The result of these cases is, that if the
damage complained of is the immediate effect of the act of the defendant,
trespass vi et armis
lies; if consequential only, and not immediate, case is the proper remedy. Leame v. Bray, 3 East,
593; Hugget v.
discussions, it is frequently stated by judges, that when one receives injury
from the direct act of another, trespass will lie. But we think this is said in
to the question, whether trespass and not case will lie, assuming that the
facts are such, that some action will lie. These dicta are no authority,
we think, for holding, that damage received by a direct act of force from
another will be sufficient to maintain an action of trespass, whether the act
was lawful or unlawful, and neither wilful,
intentional, or careless. In the principal case cited, Leame
v. Bray, the damage arose from the act of the defendant, in driving on
the wrong side of the road, in a dark night, which was clearly negligent if not
unlawful. In the course of the argument of that case, (p. 595,)
We think, as the
result of all the authorities, the rule is correctly stated by Mr. Greenleaf,
that the plaintiff must come
[*296] prepared with
evidence to show either that the intention was unlawful, or that the
defendant was in fault; for if the injury was unavoidable, and the
conduct of the defendant was free from blame, he will not be liable. 2 Greenl. Ev. § §
85 to 92; Wakeman v. Robinson,
1 Bing. 213. If, in the prosecution of a lawful act, a casualty purely
accidental arises, no action can be supported for an injury arising therefrom. Davis v. Saunders, 2 Chit. 639; Com. Dig. Battery, A. (Day's Ed.) and notes; Vincent v. Stinehour, 7
In using this term, ordinary care, it may be proper to state, that what constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. A man, who should have occasion to discharge a gun, on an open and extensive marsh, or in a forest, would be required to use less circumspection and care, than if he were to do the same thing in an inhabited town, village, or city. To make an accident, or casualty, or as the law sometimes states it, inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the [**9] circumstances in which he was placed.
We are not aware of any circumstances in this case, requiring a distinction between acts which it was lawful and proper to do, and acts of legal duty. There are cases, undoubtedly, in which officers are bound to act under process, for the legality of which they are not responsible, and perhaps some others in which this distinction would be important. We can have no doubt that the act of the defendant in attempting to part the [*297] fighting dogs, one of which was his own, and for the injurious acts of which he might be responsible, was a lawful and proper act, which he might do by proper and safe means. If, then, in doing this act, using due care and all proper precautions necessary to the exigency of the case, to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in his eye, and wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore the action would not lie. Or if the defendant was chargeable with some negligence, and if the plaintiff was also chargeable with negligence, we think the plaintiff cannot recover without showing that the damage was caused [**10] wholly by the act of the defendant, and that the plaintiff's own negligence did not contribute as an efficient cause to produce it.
The court instructed the jury, that if it was not a necessary act, and the defendant was not in duty bound to part the dogs, but might with propriety interfere or not as he chose, the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word not in a strict but a popular sense. This is to be taken in connection with the charge afterwards given, that if the jury believed, that the act of interference in the fight was unnecessary, (that is, as before explained, not a duty incumbent on the defendant,) then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of plaintiff, was on the defendant.
The court are of opinion that these directions were not conformable to law. If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care, [**11] adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff's case, and the burden of proof was on the plaintiff to establish it. 2 Greenl. Ev. § 85; Powers v. Russell, 13 Pick. 69, 76; Tourtellot v. Rosebrook, 11 Met. 460.
Perhaps the learned judge, by the use of the term extraordinary care, in the above charge, explained as it is by the context, [*298] may have intended nothing more than that increased degree of care and diligence, which the exigency of particular circumstances might require, and which men of ordinary care and prudence would use under like circumstances, to guard against danger. If such was the meaning of this part of the charge, then it does not differ from our views, as above explained. But we are of opinion, that the other part of the charge, that the burden of proof was on the defendant, was incorrect. Those facts which are essential to enable the plaintiff to recover, he takes the burden of proving. The evidence may be offered by the plaintiff or by the defendant; the question of due care, or want of care, may be essentially connected with the main facts, and arise from the same proof; but the [**12] effect of the rule, as to the burden of proof, is this, that when the proof is all in, and before the jury, from whatever side it comes, and whether directly proved, or inferred from circumstances, if it appears that the defendant was doing a lawful act, and unintentionally hit and hurt the plaintiff, then unless it also appears to the satisfaction of the jury, that the defendant is chargeable with some fault, negligence, carelessness, or want of prudence, the plaintiff fails to sustain the burden of proof, and is not entitled to recover.
New trial ordered