Judd v. Ballard

• Citation: 66 Vt. 668,30 A. 96
• Court: Vermont Supreme Court
• Decision Date: 27 August 1894
• Parties: JUDD v. BALLARD.

30 A. 96

66 Vt. 668

JUDD

v. BALLARD.

Supreme Court of Vermont. Franklin.

Aug. 27, 1894.

Exceptions from Franklin county court; Thompson, Judge.

Trespass by Sanford Judd against Porter Ballard for assault and battery. Judgment for plaintiff, and defendant excepts. Affirmed.

It appeared that the plaintiff and defendant were riding along in the rear end of a large express wagon, partly lying down, with their feet out of the rear end of the wagon, and facing each other. While in this position the defendant took 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. The defendant testified that he was carrying the revolver with the hammer between two cartridges, as he usually did; that he took the revolver out of his pocket, placed the hammer upon one of the cartridges, and discharged it over the wheel of the wagon; that he then attempted to place the hammer between the cartridges, as usual, and that while so doing, in some manner, which he could not account for, the revolver was discharged; that he did not intend to injure the plaintiff or to discharge the revolver, and was unable to state how the discharge did in fact occur. The defendant insisted that the plaintiff could not recover in this form of action, but the court overruled the objection, and directed a verdict for the plaintiff, submitting to the jury only the question of damages. To the action of the court in holding that a recovery could be had in trespass, and to directing a verdict for the plaintiff, the defendant excepted. The defendant was injured January 17, 1889, and was incapacitated for work, in consequence of the injury, until some time in August, 1889. At the time of the injury he was a minor, and previous to that time had resided as a member of his father's family. He continued to so reside as a member of that family until he became of age, June 26, 1889. The defendant insisted that the plaintiff was not entitled to recover for loss of time between the date of the injury and the time he became of age. The plaintiff was allowed to show by his father that his time between the injury and his becoming of age had been given him by his father after the commencement of this suit. To the admission of this testimony, and to the action of the court in allowing the plaintiff to so recover for loss of time before becoming of age, the defendant excepted. The defendant also insisted that the plaintiff was not entitled to recover the expense of medical attendance between the date of the injury and his becoming of age. It appeared that after the injury the plaintiff had gone alone to St. Albans, and had there employed Dr. Jenne, who treated him at that time and subsequently during his convalescence. Dr. Jenne testified that he had charged his bill for services directly to the father; that he did so because the plaintiff was a member of his father's family, and he had no account against the plaintiff; that since his recovery the plaintiff had promised to pay him the amount of the bill. The court instructed the jury that the plaintiff was entitled to recover this expense, if he was legally bound to pay the bill to Dr. Jenne, and further instructed them, in a manner not excepted to by the defendant, under what circumstances he would and would not be legally holden for these charges. To the action of the court in ruling that the plaintiff could recover the amount of Dr. Jenne's charges between January 17th and June 26th, the defendant excepted. The jury found generally for the plaintiff, and further found, by special verdict, that they had included in their general verdict $75 for loss of time, and $100 for medical attendance previous to June 26th.

Hogan & Royce, for plaintiff.

Watson & Flinn and Farrington & Post, for defendant.

MUNSON, J. The plaintiff was injured by the discharge of a revolver in the hands of the defendant while the two were reclining, partially facing each other, in the bottom of a moving wagon. The defendant had discharged one barrel for amusement, and was fixing the hammer preparatory to returning the revolver to his pocket when the discharge which injured the plaintiff occurred. Upon the facts presented, the defendant is clearly answerable for the damages sustained by the plaintiff. 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. Vincent v. Stinehour, 7 Vt 62; Morris v. Piatt, 32 Conn. 75; Bullock v. Babcock, 3 Wend. 391.

The plaintiff's damages are recoverable in an action of trespass. The injury was the direct result of a force put in motion by the defendant. The fact that the force was put in motion through negligence does not preclude the plaintiff from maintaining trespass. Neither an Intention to injure the plaintiff, nor an intention to do the act which caused...