Waterman v. Hall

The opinion of the court was delivered by Royce, J. As the action progressed to a final trial and judgment after the amendment took place, it must appear beyond doubt that the amendment was permitted contrary to law, before we can be justified in vacating those subsequent proceedings for that cause. We have to determine whether the original declaration must necessarily be regarded as a declaration in trespass, and not in trespass on the case. That the party intended to declare in case, and not in trespass, is sufficiently evident. He not only entitled his declaration “ a plea of the case,” but he commenced it by way of recital, (with a quod cum, as formerly styled,) which is admitted to be a decisive mark of distinction between the two forms of declaring. [132] Ham. N. P. 10. He was also careful to allege a malicious motive in the defendants, which is not according to precedent in trespass, as the motive is not often essential to the right of action in that form. He did not insert the words — with force and arms, or against the peace; and although it be conceded that these have become but formal expressions, it is presumed they are never purposely omitted in a declaration designed to count in trespass. It is contended,-however, that a forcible act of the defendants was alleged, and that the injury was immediate; and if this is the only admissible construction, it must follow that the declaration was substantially in trespass. There is no doubt that the act of the defendants, as set forth, may properly be deemed a forcible act, and the question is, whether the injury must be referred to that act as its proximate and immediate cause. It is to be noticed that the injury complained of was not inflicted by the clubs or stones employed by the defendants, or directly by any act of force by them committed; so that, in effect, they were only charged with having by acts of force frightened and chased the mare, whereby she was induced to jump upon the fence to make her escape. Now in regard, at least, to injuries to the person and to personal property, I think the following rule may be sustained : — That where the injury is directly inflicted by a forcible (act, as where a blow is given to a person, or an act of violence jcommitted upon his beast, or other property, causing injury, the ¡party aggrieved has generally no choice of actions, and trespass is ; his only remedy ; but that the necessity of sueing irt trespass expends no farther, though the injury may have followed the forcible act without the intervention of any voluntary and responsible agency. In the latter case the party frequently has, as I consider, an election between the action's of trespass and case. I allude to the instance where he has sustained a forcible injury, effected by means flowing from the act of the defendant, but not operating by the very force and impulse of that act. ■ He may then sue in trespass, constructively treating those means as attached to, and forming part of, ¡the defendants, act, and thus bringing that act into immediate connexion with the injury; or, waiving all artificial views of the matter, he may adopt the other form of action, and treat the [133] injury as consequential. Such a case, as well as that where the ultimate injury is not forcible, presents what are sometimes denominated the causa causans and the causa causata; as in the Earl of Shrewsbury’s Case, 9 Co. 50. And whenever the latter cause (forming the point of the action as it usually does) consists neither in the act of the defendant, nor in the .continued physical impulse of that act, I think the plaintiff may, as he more frequently must, proceed in case. Hence it has always appeared to me, that, though trespass was properly adjudged to lie in the celebrated case of the lighted squib, (Scott v. Shepherd, 3 Wils. 403) case would have been equally an appropriate remedy. The original declaration in this case appears to exhibit the two causes mentioned, in the act of the defendants with their clubs and stones, and in the consequent fright of the mare impelling her upon the fence. And the latter obviously formed the point of the. action. I am therefore led to conclude, that the plaintiff was at liberty, upon the facts as stated, to declare in trespass on the case, and that his declaration was framed in that action. It follows that the amendment, as it neither varied the cause, nor changed the form, of action, was within the ordinary discretion and power of the county court, and is not the subject of revision here upon a bill of exceptions. Judgment affirmed.