12 N.C. 185 | N.C. | 1827
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 than Scott v. Shepherd, for here the act was immediately injurious, without any intermediate agency. If in Scott v.Shepherd the 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 of Mr. Justice Blackstone, who thought that the first act *116 was 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,
