## Facts

- Smith owned premises with sheds near Portland, Ionia County, Michigan.
- On September 17, 1891, Smith saw several boys on a shed roof and told them to get down.
- Smith then saw two boys on another shed roof; evidence permitted a finding that Talmage was also on or near that roof and within Smith’s view.
- Before the boys had fully descended, Smith threw a stick (about 16 inches long and about two inches wide) toward the boys.
- Testimony supported that Smith threw the stick intending to hit one boy (Byron Smith), but the stick missed and struck Talmage above the eye.
- The blow caused an injury resulting in total loss of sight in Talmage’s eye.

## Issues

1. Whether a defendant who intentionally throws an object intending to hit one person, but instead strikes and injures another, is liable in trespass/battery to the person actually injured.
2. Whether liability depends on the defendant’s specific intent to hit the particular plaintiff, or whether intent directed at another suffices when the act is wrongful and causes harmful contact.

## Decision

- The Michigan Supreme Court affirmed the plaintiff’s judgment and costs.
- The trial court correctly instructed that plaintiff could not recover if the defendant merely intended to frighten and did not intend to hit anyone.
- The trial court correctly instructed that defendant was liable if he intended to hit one of the boys and used more force than was reasonable under the circumstances, even if the stick instead struck the plaintiff.
- Evidence supported a finding that Smith intended to strike Byron Smith and that the act was wrongful as committed.

## Legal Principles

- Intent to cause harmful or offensive contact directed at one person can support liability when the defendant’s act instead causes harmful contact to another (transferred intent).
- In a trespass/battery action, a defendant is not excused from liability merely because the person actually struck was not the intended target, if the defendant acted with intent to hit someone.
- A property owner’s privilege to protect property does not justify using unreasonable force; employing excessive force in removing trespassers is a wrongful act that can result in liability for resulting injuries.

## Conclusion

The court held Smith liable for Talmage’s injury because Smith intentionally threw the stick intending to hit another boy and used force the jury could find unreasonable; that intent was treated as sufficient to impose liability for the harmful contact inflicted on the unintended victim.


Talmage v. Smith, 101 Mich. 370, 59 N.W. 656 (Mich. 1894)