Loubz v. Hafner
| Decision Date | 31 December 1826 |
| Citation | 12 N.C. 185 |
| Court | North Carolina Supreme Court |
| Parties | JACOB LOUBZ v. JOSEPH HAFNER and another. |
Trespass vi et armis is the proper remedy for an injury of which the defendant is the immediate cause, though it happen by accident or misfortune. Therefore, for beating a drum in the highway, where a wagon and team are passing, by which the horses take fright, run away and damage the wagon, this action may be supported by the owner.
THE plaintiff declared in trespass vi et armis, and on the trial before Strange, J., offered to prove that as he was passing with his wagon on the highway, the defendants came into the road (but not so as to interrupt the plaintiff's progress) and commenced beating a drum for the purpose of frightening his horses, whereupon they took fright, ran away, and damaged the plaintiff's wagon, etc.; but the presiding judge being of opinion that case, and not trespass, was the proper remedy, the defendants had a verdict. A new trial was afterwards moved and denied, and the plaintiff appealed.
TAYLOR, C. J. All the authorities concur in the position that whenever the injury is committed by the immediate act complained of, the action must be trespass; in other words, "if the injurious act be the immediate result of the force originally applied by the defendant, it is the subject of an action of trespass vi et armis, by all the cases ancient and modern, and that it is immaterial whether the injury be willful or not." Several cases are put to illustrate this rule, as when one shooting at a mark with a bow and arrow, and having no unlawful purpose in view, wounded a man, it was held that trespass was the proper action. So where a person is lawfully exercisinghimself in arms, and happens to wound another, the same action must be brought. Hob., 134. In actions of trespass the distinction has not turned either on the lawfulness of the act from whence the injury happened or the design of the party doing it to commit the injury; but on the difference between immediate injuries or consequential ones; for if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass. 3 East, 600.
It is impossible to doubt from the statement in this case that the action is properly brought according to all the decisions, for if willfulness were a necessary ingredient in the case, it exists here, since the defendant beat the...
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Stewart v. Cary Lumber Co
...is confined to recovery as for a malicious or willful tort—predicating such a position on some former decision of this court (Loubz v. Hafner, 12 N. C. 185), in which it was held that, for an injury wrongfully caused by beating a drum and thereby causing a plaintiff's horse to run away, the......
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Dickens v. Puryear
...to frighten a team by blowing a whistle, Stewart v. Lumber Co., (146 N.C. 47, 59 S.E. 545) supra, or by beating a drum, Loubz v. Hafner, (12 N.C. 185) supra, thereby causing a run-away and consequent damage, it is not perceived upon what logical basis of distinction the present action can b......
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Stewart v. Cary Lumber Co.
... ... for a malicious or willful tort-predicating such a position ... on some former decision of this court ( Loubz v ... Hafner, 12 N.C. 185), in which it was held that, for an ... injury wrongfully caused by beating a drum and thereby ... causing a ... ...
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Smith v. Pate
...court's ruling. Our own research has disclosed only two cases which may seem at variance with the conclusion we reach. They are Loubz v. Hafner, 12 N.C. 185, and Newsom v. Anderson, 24 N.C. 42. When one reads those cases, he must keep in mind the factual situation there disclosed. Neither s......