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Talmage v. Smith

Law Dictionary

Law Dictionary

Featuring Black's Law Dictionary 2nd Ed.
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Torts Keyed to Prosser

Citation. Talmage v. Smith, 101 Mich. 370, 59 N.W. 656, 1894 Mich. LEXIS 938 (Mich. 1894).

Brief Fact Summary. Defendant discovered several boys playing on top of sheds on his property. Defendant demanded that they get down and most complied quickly, but Plaintiff and a few others remained on the roofs. Defendant threw a stick in the direction of a few boys on one of the roofs, but the stick missed those boys and struck and injured Plaintiff.

Synopsis of Rule of Law. A Defendant’s intent to cause physical contact with one party can be considered intent to commit battery against a second party when unreasonable force is used because the Defendant has no right to commit such an act.

Facts. Defendant threw a stick toward one member of a group of several boys to get them to leave his property. The stick missed the first boy and struck Plaintiff in the eye. Plaintiff sued and recovered on a jury verdict. The jury was instructed that Defendant could be liable if he threw the stick with the intent to hit the first boy or Plaintiff and did so with force that was unreasonable under the circumstances

Issue. Was the jury properly instructed that Defendant could be liable if he intended to hit either boy and used unreasonable force?

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