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TRESPASS AND TRESPASS ON THE CASE.
SECTION 8. FUNDAMENTAL DISTINCTION BETWEEN TRESPASS AND TRESPASS ON THE
CASE. The distinction between trespass and trespass on the case is generally stated as being that if an injury be done to A by the immediate force of B, the former may bring trespass; but that if the injury be not immediate, but merely consequential, he cannot sue in trespass; and his remedy, if any, is by action on the case for consequential damages. An illustration frequently given is that of a man throwing a log into a highway; if the log strike A in its fall he may sue in trespass; but if, after it is lodged, and rests upon the ground, he stumbles over it, he must sue in trespass on the case.
The leading case on this distinction, which has now been followed by the Courts both of this country and of England, for more than a century, is the famous case of Scott vs. Shepherd, generally referred to as the "'squib case.” On account of great importance of this case in this branch of the law, and on account of the high character of the legal reasoning contained in the case, the decision is given in the next section in its entirety.
* See note to page 217, Volume I,
Smith's Leading Cases. • The case is given exactly as it
appears in the reports, and will show those readers, who do not have access to a law library,
are reported. It should at all times be remembered by the law students that reported cases are the ultimate basis of ninety peicent or more, of the law.
SECTION 9. SCOTT vs. SHEPHERD. “Trespass and assault for throwing, casting, and tossing a lighted squib at and against the plaintiff, and striking him therewith on the face, and so burning one of his eyes, that he lost the sight of it, whereby, etc., On not guilty pleaded, the cause came on to be tried before Nares, J., last summer assizes at Bridgwater, when the jury found a verdict for the plaintiff with £100 damages, subject to the opinion of the court on this case: On the evening of the fair-day of Milbourne Port, 28th October, 1770, the defendant threw a lighted squib, made of gunpowder, etc., from the street into the market-house, which is a covered building supported by arches, and enclosed at one end, but open at the other and both the sides, where a large concourse of people were assembled; which lighted squib, so thrown by the defendant, fell upon the standing of one Yates, who sold gingerbread, etc. That one Willis instantly, and to prevent danger to himself and the said wares of the said Yates, took up the said lighted squib from off the said standing, and then threw it across the said market-house, when it fell upon another standing there of one Ryal, who sold the same sort of wares, who instantly, and to save his own goods from being injured, took up the said lighted squib from off the said standing, and then threw it to another part of the said market-house, and in so throwing it struck the plaintiff, then in the said market-house, in the face therewith, and the combustile matter then bursting, put out one of the plaintiff's eyes. Qu. If this action be maintainable?
“This case was argued last Term by Glyn, for the plaintiff, and Burland, for the defendant; and this term the court, being divided in their judgment, delivered their opinions seriatim.
“Nares, J., was of opinion that trespass would well lie in the present case. That the natural and probable consequence of the act done by the defendant was injury to somebody, and therefore the act was illegal at common law. And the throwing of squibs has, by statute W. 3, been since made a nuisance. Being therefore unlawful, the defendant was liable to answer for the consequences, be the injury mediate or immediate: 21 Hen. 7, 28, is express that malus animus is not necessary to constitute a trespass. So, too, I Stra., 596, Hob., 134 T. Jones, 205, 6 Edw., 4, 7, 8; Fitz. Trespass, 110. The principle I go upon is what is laid down in Reynolds vs. Clark, Stra., 634, that if the act in first instance be unlawful, trespass will lie. Wherever therefore an act is unlawful at first, trespass will lie, for the consequences of it. So, in 12 Hen. 4, trespass lay for stopping a sewer with earth, so as to overflow the plaintiff's land. In 26 Hen. 8, 8, for going upon the plaintiff's land to take the boughs off which had fallen thereon in looping. See also Hardr. 60, Reg. 108, 95. 6. Edw. 4, 7, 8. 1 Ld. Raym 272, Hob 180. Cro. Jac, 122, 43. F. N. B., 202 (918). I do not think it necessary, to maintain trespass, that the defendant should personally touch the plaintiff; if he does it by a mean, it is sufficient. Qui facit per aliud facit per se. He is the person who, in the present case, gave the mischievous faculty to the squib. That mischievous faculty remained in it till the explosion. No new power of doing mischief was communicated to it by Willis or Ryal. It is like the case of, a mad ox turned loose in a crowd. The person who turns him loose is answerable in trespass for whatever mischief he may do. The intermediate acts of Willis and Ryal will not purge the original tort
in the defendant. But he who does the first wrong is answerable for all the consequential damages. So held in the King vs. Huffins, 2 Lord Raym, 1574. Parkhurst vs. Foster, 1 Lord Raym, 480. Rosewell vs. Prior 12 Mod., 639. And it was declared by this court, in Slater vs. Baker, M., 8. Geo. 3, 2, Wils, 359, they would not look with eagle's eyes to see whether the evidence applies exactly or not to the case; but if the plaintiff has obtained a verdict for such damages as he deserves, they will establish it if possible.
Blackstone, J., was of opinion that an action of trespass did not lie for Scott against Shepherd, upon this case. He took the settled distinction to be, that where the injury is mediate, an action on the case; Reynolds vs. Clarke, Lord Raym, 1401, Stra., 634; Haward vs. Bankes Burr, Harker vs. Birbeck, Burr., 1559. The lawfulness or unlawfulness of the original act is not the criterion; though something of that sort is put into Lord Raymond's mouth in Stra., 635, where it can only mean, that if the act then in question, of erecting a spout, had been in itself unlawful, trespass might have lain; but as it was a lawful act (upon the defendant's own ground), and the injury to the plaintiff only consequential, it must be an action on the case. But this cannot be the general rule; for it is held by the court, in the same case, that if I throw a log of timber into the highway (which is an unlawful act), and another man tumbles over, and is hurt, an action on the case only lies, it being a consequential damage; but if in throwing it I hit another man, he may bring trespass, because it is an immediate wrong. Trespass may sometimes lie for the consequences of a lawful act. If in lopping my own trees a bough accidentally falls on my neighbour's ground, and I go thereon to fetch