Drum v. Miller

• Decision Date: 26 April 1904
• Citation: 47 S.E. 421,135 N.C. 204
• Court: North Carolina Supreme Court
• Parties: DRUM . v. MILLER.

47 S.E. 421

135 N.C. 204

DRUM .

v.MILLER.

Supreme Court of North Carolina.

April 26, 1904.

TORTS — NEGLIGENCE — LIABILITY — NATURAL CONSEQUENCE OF ACTS—UNFORESEEN CONSEQUENCES—SCHOOLS — RELATION OF TEACHER TO PUPIL—BIGHT TO CHASTISE.

1. An act done by a teacher in the exercise

of his authority, and not prompted by malice, is not actionable, though it may cause permanent injury, unless a person of ordinary prudence could reasonably have foreseen that a permanent injury would naturally or probably result from the act.

2. Where an act is itself lawful, liability depends not on the particular consequences or results that may flow from it, but upon whether a prudent man, in the exercise of ordinary care, would have foreseen the injury or damage that would naturally or probably have resulted from the act.

3. In order to render one who does a lawful act negligently liable, it is not necessary that he should have been able to have foreseen the injury in the precise form in which it in fact resulted, or that he should have anticipated the particular consequence which did actually flow from his act, but it is sufficient that the act is one which the perpetrator should, in the exercise of ordinary prudence, have foreseen would probably result in harm or injury of some kind.

4. In an action against a teacher for injuries to pupil caused by the teacher throwing a pencil at the pupil, which permanently injured his eye, an instruction that, unless the jury found that a reasonably prudent man might reasonably, or in the exercise of ordinary care, have expected that the injury complained of would result from his act in throwing the pencil, defendant should be found not liable, was erroneous, as requiring defendant to foresee not only that the injury would result, but that the particular injury would be the probable consequence of his act.

Appeal from Superior Court, Catawba County: Shaw, Judge.

Action by Arthur Drum against Abel S. Miller. From a judgment for defendant, plaintiff appeals. Reversed.

This is an action brought by the plaintiff to recover damages for an injury to one of his eyes, which is alleged in the complaint to have been caused by the wrongful and negligent act of the defendant. There is not much dispute about the facts. At the time the injury was received the defendant was a teacher in a public school of Catawba county, and the plaintiff was one of his pupils. While the school was in session, and plaintiff's class was reciting one of its lessons, the attention of the plaintiff was attracted by some disturbance in the schoolroom, and when be turned his head to see what it was the defendant threw at him a pencil, which he at the time had in his hand. The plaintiff turned his head back just at the time the pencilreached him, and it struck him in the eye, inflicting a very painful and serious wound, and causing partial, if not total, blindness. The plaintiff insisted that the act of the defendant in throwing the pencil was done maliciously, and that, even if there was no malice, the injury to the plaintiff was a permanent one, and, in either view of the case, the defendant was liable to him, without regard to any question of negligence or of proximate cause. The defendant contended, on the contrary, that there was no malice, and that, if a permanent injury was the result of the act, he threw the pencil at the plaintiff for the purpose of attracting his attention, and in the exercise of his right of correction and discipline, without intending to cause any injury to the plaintiff, and not foreseeing at the time that such a result would flow from his act Without objection, the court submitted to the jury two issues, as follows: "(1) Did the defendant wrongfully injure plaintiff, as alleged in the complaint? (2) What damage, if any, is plaintiff entitled to recover?"

There were no prayers for instructions asked by the plaintiff. The court charged the jury as follows: That, if they believed the evidence, they should find "that the defendant was a school teacher, and that plaintiff was his pupil, and was reciting his lesson at the time of his alleged injury. A teacher has the authority to inflict upon his pupil such punishment as, in his judgment may be necessary for the purpose of correction; and unless such punishment shall seriously endanger the life, limb, or health of the pupil, or shall disfigure him, or cause some permanent injury to him, or was inflicted not in the honest discharge of his duty as a teacher, but under the pretext of duty to gratify his malice, then the teacher would not be responsible for the injury to the child; or, if the injury was not the proximate cause of the punishment, the teacher would not be responsible therefor. An act is the proximate cause of an injury either when it is the direct cause thereof, or when the injury is the natural and probable consequence of the act, and when, in the exercise of ordinary care, an ordinarily prudent person would have foreseen that such consequences would likely be produced thereby. A party is presumed to have intended the necessary as well as the natural and probable consequence of his acts." The court then explained to the jury what is malice, and further charged them that, if the plaintiff was inattentive, and defendant threw the pencil at him for the purpose of punishing him, and inflicted a permanent injury upon him, or if he threw the pencil at the plaintiff for the purpose of gratifying his malice, and injured him, and the injury was proximately caused by the throwing of the pencil, they should answer the first issue "Yes"; but if they found that the pencil was thrown not for the purpose of punishing the plaintiff, but to recall his attention to the recitation, and they further found from all the surrounding circumstances that a reasonably prudent man, in the exercise of ordinary care, would not have foreseen that an injury would likely have resulted therefrom, then they should answer the first issue "No, " although they should further find that the plaintiff was permanently injured, for, if injured under such circumstances, it was an accident; an accident being an event from a known cause. The jury were further instructed that unless they found from the evidence that plaintiff's injury was the natural and probable consequence of defendant's act in pitching or throwing the pencil, and unless they found that a prudent man might reasonably, or in the exercise of ordi nary care, have expected or anticipated that the injury would likely result from the defendant's act, they should answer the first issue "No." The court then gave the defendant's second prayer for instructions, as follows: "Unless you find from the evidence that the plaintiff's injury was the natural and probable consequence of the defendant's act in pitching or throwing the pencil, it will be your duty to answer the first issue 'No;'" and also the defendant's third prayer, as follows: "Unless you find from the evidence that a reasonable prudent man might reasonably, or in the exercise of ordinary care, have expected or anticipated that the injury complained of would likely result from the defendant's act in throwing or pitching the pencil, you should answer the first issue 'No.'" The jury answered the first issue "No, " and therefore did not answer the second. There was a judgment in accordance with the verdict in favor of the defendant, and the plaintiff appealed.

T. M. Hufham, for appellant.

Self & Whitener, for appellee.

WALKER, J. (after stating the case). Several exceptions were taken by the plaintiff to the judge's charge, only two of which we deem it necessary to notice. One of these exceptions is based upon the plaintiff's contention that, if he was permanently injured by the act of the defendant, he is entitled to recover, whether that act was the proximate cause of the injury or not, or could or could not reasonably have been foreseen. We cannot agree with the plaintiff in this contention. It is undoubtedly true that a teacher is liable if, in correcting or disciplining a pupil, he acts maliciously, or inflicts a permanent injury; but he has the authority to correct his pupil when he is disobedient or inattentive to his duties, and any act done in the exercise of this authority, and not prompted by malice, is not actionable, though it may cause permanent injury, unless a person of ordinary prudence could reasonably foresee that a permanent injury of some kind would naturally or probably result from the act. There is a distinction, we think, between the case of an injury inflicted in the performance of a lawful act and one in which the act causing theinjury Is in itself unlawful, or is, at least, a willful wrong. In the latter case the defendant is liable for any consequence that may flow from his act as the proximate cause thereof, whether he could foresee or anticipate it or not; but when the act is lawful, the liability depends, not upon the particular consequence or result that may flow from it, but upon the ability of a prudent man, in the exercise of ordinary care, to foresee that injury or damage will naturally or probably be the result of his act. In the one case he is presumed to intend the consequence of his unlawful act, but in the other, while the act is lawful, it must be performed in a careful manner, otherwise it becomes unlawful, if a prudent man, in the exercise of proper care, can foresee that it will naturally or probably cause injury to another, though it is not necessary that the evil result should be, in form, foreseen. Cooley, in his work on Torts (2d Ed.) p. 74, states the rule thus: "(1) In the case of any distinct legal wrong, which in itself constitutes an invasion of the right of another, the law will presume that some damage follows as a natural, necessary, and proximate result. Here the wrong itself fixes the right of action. We need not go further to show a right of recovery, though the extent of recovery may depend upon the evidence. (2) Wh...