George
Brown vs. George K. Kendall.
60
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.
Rev.
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.
In these
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
[**6] reference
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