Isham v. Dow's Estate

• Decision Date: 14 August 1898
• Citation: 70 Vt. 588,41 A. 585
• Court: Vermont Supreme Court
• Parties: ISHAM v. DOW'S ESTATE.

41 A. 585

70 Vt. 588

ISHAM

v. DOW'S ESTATE.

Supreme Court of Vermont. Chittenden.

Aug. 14, 1898.

Exceptions from Chittenden county court; Taft, Judge.

Action by Charity B. Isham against the estate of Isaiah Dow. On request, plaintiff stated what her evidence would tend to prove; and the court ruled that such facts, if established, would not entitle plaintiff to recover, and excluded the evidence, and directed a verdict for defendant Plaintiff excepted. Reversed.

Seneca Haselton and J. E. Cushman, for plaintiff.

W. L. Burnap and Henry Ballard, for defendant.

ROWELL, J. Dow, the intestate, a poor gunner, as he knew, with eyesight much impaired, knowing that the plaintiff and her children were alone in her husband's house, unlawfully, wantonly, and maliciously shot at and wounded her husband's dog, lying peaceably in lose proximity to the house, on the land of a third person, whereupon the dog sprang up, rushed wildly and rapidly towards the house, entered it through an open door into the room where the plaintiff was, ran violently and forcibly against her, knocking her down and injuring her; and the question is whether the estate is liable for it. The defendant says that, in order to recover, the plaintiff must establish two things, namely, negligence on the part of Dow, and that her injury resulted proximately therefrom, and that the case shows neither, as it does not show that Dow owed her any legal duty, nor that his act was the proximate cause of her injury. But we cannot adopt this view. The intestate unlawfully, wantonly, and maliciously shot at the dog, intending, we will assume, to kill it, but not knowing whether he would or not, and not knowing what would happen if he did not; and by his wanton act the dog was set wildly in motion, and that motion, thus caused, continued, without the intervention of any other agency, and without power on his part to control it, until the plaintiff's injury resulted therefrom. In these circumstances the law treats the act of the intestate as the proximate cause of the injury, whether the injury was, or could have been, foreseen, or not, or was or not the probable consequence of the act; for the necessary relation of cause and effect between the act and the injury is established by the continuous and connected succession of the Intervening events. This is the universal rule when the injurious act is wanton. In 16 Am. & Eng. Enc. Law, 434, the true principle is said to be that he who does such an act is liable for all the consequences, however remote, because the act is quasi criminal in its character, and the law conclusively presumes that all the consequences were foreseen and intended. But it is not necessary, in this state, certainly, that the act should be wanton, in order to impose liability for all the injurious consequences. If it is voluntary, and not obligatory, it is enough. In Vincent v. Stinehour, 7 Vt. 66, it is said that for such an act the doer is answerable for any injury that may happen by reason thereof, whether by accident or carelessness. In Wright v. Clark, 50 Vt. 130, the defendant shot at a fox that the plaintiff's dog had driven to cover, and accidentally hit the dog; and he was held liable, because the shooting at the fox was voluntary, and furnished no excuse for hitting the dog, though he did not intend to hit him. The same rule was applied at nisi prius, without exception, in Taylor v. Hayes, 63 Vt 475, 21 Atl. 610, where the defendant shot at a partridge, and accidentally hit a cow. So, in Bradley v. Andrews, 51 Vt. 530, the defendant voluntarily discharged an explosive missile into a crowd, and hurt the plaintiff; and it was held that, as the act was voluntary and wrongful, the defendant was liable, and that his youth and inexperience did not excuse him. The rule is the same here in negligence cases, and may be formulated thus: When negligence is established, it imposes liability...