Talmage v. Smith

Supreme Court of Michigan, 1894.

101 Mich. 370, 59 N.W. 656.

Prosser, p. 28-29

Facts: Smith found some boys sitting on several sheds on his property.He went up to one of the sheds and saw two boys on the roof. He told them to get down, and the two boys he saw started to climb down.The defendant then threw a stick in the direction of these boys, and it hit Talmage, whom the defendant did not see, injuring his eye severely.


Issue: Can Smith be held liable for trespass against Talmage if he intended to hit someone else?


Rule: If the defendant intends to hit somebody, the defendant will be liable for hitting anybody.


Analysis: The court evaluates the propriety of the trial courtís instructions to the jury and finds them to be acceptable.


Conclusion: The appellate court upheld the trial courtís judgment.


Notes and Questions


1.     Transferred intent is rooted in the criminal law.

2.     Intent can be transferred among the five torts that derive from the original writ of trespass: battery, assault, false imprisonment, trespass to land and trespass to chattels.

3.     If you intend to commit assault against one person but end up battering another person, you are liable.If you intend arson and accomplish battery, you are liable because these are both torts that fall under the scope of the writ of trespass.

4.     If the tort that was intended or the one that was accomplished is not one of the five, transferred intent does not apply.


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