Talmage v. Smith

Supreme Court of Michigan, 1894

101 Mich 370, 59 N.W. 656



Defendant Smith, property owner, was in the process of getting young boys off the top of his sheds on his property and one of his tactics was to throw an approximately 16x2x2 stick at them and hit one of the boys in the face, the boy losing his sight in one eye permanently.

Procedural History

Circuit court judge holds that if the defendant did not mean to hit either boy on the roof of the shed and was simply done to frighten the boys into action, no recovery of trespass for the Plaintiff, or if the Defendant was trying to hit the other boy whom he saw, but in doing so, could be seen as a reasonable action and not excessive, no recovery of trespass should occur, but if the Defendant threw the stick with intent to hit, and also acted in a manner of unreasonable force, then the Defendant acted in a manner unlawful and would become liable for his actions and the Plaintiff can receive recovery for the action.


Can a Plaintiff recover from an injury not meant for them?

Arguments for Both Parties

Defendant argues that he did not know that Talmage was on the shed. He did not mean for the stick to hit any of them, but he also did not even realize that the boy was among those on the roof with the other boys.


Even if the Defendant did not mean to injure a Plaintiff, but a reasonable person could deem it substantially certain that another person could be possibly injured by an act, if the act does in fact injure a person or persons, then an intention to act upon someone else does not negate the fact that someone could have been hurt by a potential act, and that the liability for an act despite the lack of intention, is still a liability and if anyone is injured, they are able to recover from an injury, even if the act was not meant to harm them specifically.

Policy Arguments

Doctrine of Transferred Intent


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