Hawksley v. Peace

• Decision Date: 22 March 1916
• Docket Number: No. 4888.,4888.
• Citation: 96 A. 856,38 R.I. 544
• Parties: HAWKSLEY v. PEACE.
• Court: Rhode Island Supreme Court

96 A. 856

38 R.I. 544

HAWKSLEY

v. PEACE.

No. 4888.

Supreme Court of Rhode Island.

March 22, 1916.

Exceptions from Superior Court, Providence and Bristol Counties; Charles P. Stearns, Judge.

Action by Alfred Hawksley against Thomas Peace. Judgment for defendant, and from an order granting a new trial on plaintiff's motion defendant excepts. Exception overruled, and cause remanded for new trial.

See, also, 95 Atl. 668.

Irving Champlin and Malcolm D. Champlin, both of Providence, for plaintiff. Sullivan & Sullivan and John J. Sullivan, all of Providence, for defendant.

BAKER, J. This is an action of trespass for assault and battery. The declaration contains two counts, the first of which alleges—

"that the defendant on, to wit, the 7th day of June, A. D. 1914, in Cranston, in said county, * * * was then and there possessed of a gun loaded with gunpowder and leaden bullets, which said gun, so loaded, he, the defendant then and there held at or towards the plaintiff, and then and there with force and arms, with one of said bullets fired by him from said gun, struck and wounded the plaintiff in his left leg."

The second count charges assault and battery, without specifying the manner.

To this the defendant pleaded not guilty, and, specially, that "the shooting of said plaintiff was an accident unavoidable under the circumstances."

The case was tried before a court and jury in March, 1915, and the jury returned a verdict in favor of the defendant. Plaintiff duly filed a motion for new trial which, after a hearing thereon, was granted. To this decision exception was taken, and the case is before this court on defendant's bill of exceptions, which contains this single exception.

The evidence at the trial showed the shooting to have been accidental. The evidence was conflicting as to how it happened. There was testimony to the effect that the plaintiff with a companion was propelling a boat in a creek or pond, and that the defendant, standing upon the bank about 30 feet away, shot at the boat and accidentally hit the plaintiff. The defendant's own account is that he was sitting on the bank with the loaded rifle at his side on the ground with its butt back of him; that he took hold of the barrel near the muzzle and drew the rifle forward on the ground with the intention of placing it across his knees, and that in so doing it was discharged and the plaintiff was shot.

The initial subject of inquiry is as to the law which determines the civil liability for accidental injuries resulting from the use of firearms. This precise question has not been passed upon by this court. There is an abundance of authority, however, upon the question, all substantially along one line. Passing the case in the Year Book, 21 Henry VII, 28 a, where one shot an arrow at a mark which glanced from it and struck another and it was held to be trespass, we come to Weaver v. Ward, Hobart, 134, decided in 1607. Weaver brought an action of trespass for assault and battery against Ward. The defendant pleaded that he was, amongst others, by command of the Lords of the Council, in a certain band of soldiers, and so was the plaintiff; and that they were skirmishing with their muskets charged with powder against another band of soldiers, and as they were so skirmishing, the defendant casualiter et per infortunium et contra voluntatem suam in discharging his piece, did hurt and wound the plaintiff. Upon demurrer, judgment was given for the plaintiff, for it was held that:

"No man shall be excused of a trespass * * * except it may be judged utterly without his fault: as if a man by force take my hand and strike you; or if here the defendant had said that the plaintiff ran across his piece when it was discharging; or had set forth the case with the circumstances so as it had appeared to the court that it had been inevitable and that the defendant had committed no negligence to give occasion to the hurt."

So, in Underwood v. Howson, 1 Strange, 506 (1724), it appears that— "the defendant was uncocking a gun and the plaintiff standing to see it, it went off and wounded him and at the trial it was held that the plaintiff might maintain trespass."

These two cases, particularly Weaver v. Ward, have been cited with approval in numerous American reported cases relative to injuries arising from the accidental discharge of firearms, in which essentially the same rule as to liability has been recognized. For example, in Tally v. Ayres, 35 Ternn. (3 Sneed) 677, while the defendant was in the act of placing a loaded gun upon his arm or shoulder, from some cause unexplained in the proof, the gun was discharged, killing plaintiffs mare standing near by hitched to a post. In upholding a verdict for the plaintiff the court said:

"To constitute an available defense in such cases, it must appear that the injury was unavoidable, or the result of some superior agency, without the imputation of any degree of fault to the defendant."

In Judd v. Ballard, 66 Vt. 668, 30 Atl. 96, plaintiff and defendant were riding at the rear end of a large express wagon, partly lying down, facing each other. While in this position, the defendant drew out his revolver and discharged it over the wheel of the wagon, after which, in some manner, while the revolver was still in his hands, it was discharged, the ball taking effect in the plaintiff's knee. There was a verdict for the plaintiff. The court upheld it saying:

"The shooting of the plaintiff was an accident, but in no sense an unavoidable accident. It would not have occurred but for the defendant's carelessness. The test of liability is not whether the injury was accidentally inflicted, but whether the defendant was free from blame."

In Atchison v. Dullam, 16 Ill. App. 42, the defendant had a double-barreled breach-loading shotgun; one barrel had been discharged. While the defendant was attempting to insert a fresh cartridge, the other barrel went off and severely injured the plaintiff. In sustaining the verdict for the plaintiff the court said, citing, among others, three of the above cases:

"They determine that if a person is injured by the discharge of a gun in the hands of another who has entire control of it, the burden is cast upon the latter to prove that the gun was not fired at him either intentionally or negligently, but the result was inevitable and without the least fault upon his part."

In Thompson on Negligence, vol. 1, § 787, the author says:

"It has been held on very clear reasoning, that the accidental discharge of a gun in the hands of a person, whereby damage is inflicted upon another, is of itself presumptive evidence of negligence sufficient to take the question to a jury. When it is considered that, to constitute a valid defense in such cases, it must appear that the injury was unavoidable, or the result of some superior agency without the imputation of any degree of fault upon the person carrying the dangerous weapon; when it is further considered that the injury is one which does not ordinarily happen where reasonable care is taken to avert it,—the propriety of this conclusion must be obvious."

See, also, Morgan v. Cox, 22 Mo. 373, 66 Am. Dec. 623; Vincent v. Stinehour, 7 Vt. 62, 29 Am. Dec. 145; Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496; Knott v. Wagner, 84 Tenn. (16 Lea) 481, 1 S. W. 155; Bullock v. Babcock, 3 Wend. (N. Y.) 391; Hankins v. Watkins, 77 Hun, 360, 28 N. Y. Supp. 867; Beach v. Parmeter, 23 Pa. 196; Jennings v. Fundeburg, 4 McCord (S. C.) 161; Morris v. Platt, 32 Conn. 75; Welch v. Durand, 36 Conn. 182, 4 Am. Rep. 55; Bahel v. Manning, 112 Mich. 24, 70 N. W. 327, 36 L R. A. 523, 67 Am. St. Rep. 381; McCleary v. Frantz, 160 Pa. 535, 28 Atl. 929; Winans v. Randolph, 169 Pa. 606, 32 Atl. 622; Glueck v. Scheld, 125 Cal. 288, 57 Pac. 1003; Seltzer v. Saxton, 71 Ill. App. 229; Gilmore v. Fuller, 99 Ill. App. 272; Rudd v. Byrnes, 156 Cal. 636, 105 Pac. 957, 26 L. R. A. (N. S.) 134, 20 Ann. Cas. 124; Manning v. Jones, 95 Ark. 359, 129 S. W. 791; Sutton v. Bonnett, 114 Ind. 243, 16 N. E. 180; Chatalgne v. Bergeron, 10 La. Ann. 699; Harper v. Holcomb, 146 Wis. 183, 130 N. W. 1128; State v. Cunningham (Miss.) 65 South. 115, 51 L. R. A. (N. S.) 1179; Annear v. Swartz (Okl.) 148 Pac. 706, L. R. A. 1915E, 267; Ad. Torts (Am. Ed.) 1878, vol. 1, 568; Shear. & Red. Neg. (4th Ed.) vol. 2, § 686; Thomp. Neg. vol. 1, §§ 779, 780; 12 Am. & Eng. Ency. L. 519; 40 Cyc. 872.

The question has sometimes arisen as to the appropriate action in cases of this kind, whether it should be trespass or case. The early actions were generally brought in trespass. Examination will show that as to the American cases at present in some of the older states, whose practice may be said to follow the common law, the action of trespass is preferably employed, while in the newer states and in others which have adopted codes, actions for damages for injuries resulting from accident by shooting are now generally in case. Brennan v. Carpenter, 1 R. I. 474, was an action for trespass on the case for an injury to the plaintiff's horse and chaise, hitched in a public street, caused by the defendant negligently driving his team against them. After a verdict for the plaintiff, the defendant moved to set aside the verdict, on the ground of the refusal of the trial court to charge the jury that, if they found the injury was the immediate effect of defendant's act of force, he was not liable in an action of trespass on the case and the jury should bring in a verdict of not guilty. From the authorities the court deduced these rules, namely:

"(1) Where the injury complained of is the effect of negligence, though the force be immediate or direct, the plaintiff may maintain his action of trespass on the case, or trespass, at his option. (2) But where the injury is the effect of force direct and intentional, the action must be trespass, and not case."

As the evidence in that case showed that the injury was unintentional, the verdict...