Opinion · Supreme Court of North Carolina

Loubz v. . Hafner

12 N.C. 185

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1827-07-05
Topic
general

Tatlor, Chief-Justice. All the authorities concur in the position, that whenever the injury is committed Ijf the immediate act complained of, the action must be trespass; in other words, “if the injurious act be the immediate result of the force originally applied by the Defendant, it is the subject of an action of trespass vi et armis, by all the cases ancient and modern, and that it is immaterial whether the injury be wilful or not.”',Several cases are put to illustrate this rule, as when one shooting at a mark with a bow and arrow, and having ho unlawful purpose in view, wounded a man, it was *186 held that ire'Pass was the proper action. So where a person is Mvfully exercising himself in arms, and happen to wound another, the same action must be brought, (/&&. 134.) In actions of trespass, the distinction hast not turned either on the lawfulness of the act from whence the injury 1 appened, or the design of the party doing it, to commit the injury ; but on the difference between immediate injuries or consequential ones. For if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass, (3 East. 600). It is impossible to doubt from the statement in this case, that the action is properly brought according to all the decisions.

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Cited by
6 opinions
LOUBZv. HAFNER,12 N.C. 185(1827)
JACOB LOUBZ v. JOSEPH HAFNER and another.
Supreme Court of North Carolina
July Term, 1827.
From Lincoln.

Trespassvi et armisis the proper remedy for an injury of which the defendant is the immediate cause, though it happen by accident or misfortune. Therefore, for beating a drum in the highway, where a wagon and team are passing, by which the horses take fright, run away and damage the wagon, this action may be supported by the owner.Page 115
THE plaintiff declared in trespassvi et armis, and on the trial beforeStrange, J., offered to prove that as he was passing with his wagon on the highway, the defendants came into the road (but not so as to interrupt the plaintiff's progress) and commenced beating a drum for the purpose of frightening his horses, whereupon they took fright, ran away, and damaged the plaintiff's wagon, etc.; but the presiding judge being of opinion that case, and not trespass, was the proper remedy, the defendants had a verdict. A new trial was afterwards moved and denied, and the plaintiff appealed.
Wilson for the plaintiff.No counsel for the appellee.
TAYLOR, C. J.
All the authorities concur in the position that whenever the injury is committed by the immediate act complained of, the action must be trespass; in other words, "if the injurious act be the immediate result of the force originally applied by the defendant, it is the subject of an action of trespassvi et armis, by all the cases ancient and modern, and that it is immaterial whether the injury be willful or not." Several cases are put to illustrate this rule, as when one shooting at a mark with a bow and arrow, and having no unlawful purpose in view, wounded a man, it was held that trespass was the proper action. So where a person is lawfully exercising (186) himself in arms, and happens to wound another, the same action must be brought. Hob., 134. In actions of trespass the distinction has not turned either on the lawfulness of the act from whence the injury happened or the design of the party doing it to commit the injury; but on the difference between immediate cause injuries or consequential ones; for if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass. 3 East, 600.

It is impossible to doubt from the statement in this case that the action is properly brought according to all the decisions, for if willfulness were a necessary ingredient in the case, it exists here, since the defendant beat the drum for the purpose of frightening the plaintiff's horses. It is much stronger thanScott v. Shepherd, for here the act was immediately injurious, without any intermediate agency. If inScott v.Shepherdthe injury had been done to the person upon whom the squib first alighted, it would have resembled the case before us, and then there would have been no grounds for the dissenting opinion ofMr. Justice Blackstone, who thought that the first actPage 116was complete when the squib lay on the stall where it first fell, and that the injury done to the plaintiff after the squib had received two new directions was the consequence of and not done immediately by the first act of the defendant.

The nature of the act done in this case, the time and place where it was done, a wagon and team passing the public road, rendered it probable that injury would be the immediate consequence, and would render the defendant liable in the action, though he had no views to the consequences; for though the bad intention must be alleged and proved in a charge of (187) felony, it is not necessary to be considered in this action. "Where a man shoots with a bow at a mark and kills a man, it is not felony, and it should be construed that he had no intent to kill him; but when he wounds a man, although that it be against his will, he shall be said to be a trespasser." 3 Wils., 408. If the injury done be not inevitable, the person who doth it or is the immediate cause thereof, even by accident, misfortune, and against his will, is answerable in this action of trespassvi et armis. 1 Strange, 596; Sir T. Jones, 305; Sir T. Raym., 422. For these reasons I am of opinion that upon every ground of law and convenience, as well as the most manifest justice in the particular case, the action was well brought, and the plaintiff on the proof offered should have had a verdict.

PER CURIAM. Judgment reversed and new trial awarded.Approved: McCless v. Sikes,46 N.C. 310;Stewart v. Lumber Co.,146 N.C. 85.