Talmage
v. Smith
Supreme
Court of
101
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 court’s instructions to the jury and finds
them to be acceptable.
Conclusion:
The
appellate court upheld the trial court’s 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.