Talmage v. Smith (1894)


–          Smith (Defendant) owns property, saw two boys on one of his sheds and asked them to get down, and evidence showed that the two boys started to get down at once.  Before they got to the ground, the D threw a stick at them (2 inches in width, and 16 inches long) – or at least in the direction of the two boys – testimony showed that the D threw the stick at one of the boys in view of the defendant:

  • The stick missed the two boys and hit Talmage (Plaintiff) above the eye, causing blindness in that particular eye:
    • It is fully evident that the D tried to hit one of the other boys on the roof but just missed him, and hit the plaintiff.

A land owner is allowed to use reasonable force to evict a trespasser — she may also threaten more force than that – unreasonable force – so long as she doesn’t really mean to use it.

–          It was found that the D used unreasonable force, but that really isn’t what the case is looking at for our  purpose:

  • It’s looking at how the D intended to hit one person, and hit another.


Was there trasnfered intent?




If you had the required “intentions” to hit someone, and missed that person and hit someone else, your intent transfers from the person you meant to hit, to the person you did end up hitting.

Courts Reasoning

The right of the plaintiff to recovery was made to depend upon the intention on the part of the defendant to hit somebody, and to inflict unwarranted injury upon someone.  Under these circumstances, the fact that the injury resulted to another than was intended does not relieve the defendant from responsibility…


Judgment in favor of the plaintiff affirmed with costs.

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