Opinion
June Term, 1842.
1. Where one unintentionally does an act with force, which produces an immediate injury, the person injured may bring an action for trespass or an action on the case, and in the latter he declares upon the negligence or carelessness of the defendant.
2. But when the forcible act is done willfully, negligence is of course negatived, and the only remedy is trespass for the immediate injury.
3. In such an action of trespass, damages for ulterior injuries, beyond the immediate injuries, are to be recovered under a per quod, on being specifically stated in the declaration.
APPEAL from Bailey, J., at Spring Term, 1842, of RUTHERFORD.
(207) No counsel for plaintiff.
J. G. Bynum for defendant.
This was an action on the case in which the plaintiff declared for the injury which she sustained in consequence of the defendant's taking from her actual possession three negroes on or about the middle of May. It was in evidence that the negroes were in the actual possession of the plaintiff, and that about the middle of May, 1839, the defendant took them from her possession with force, by which she lost the crop which she had then planted. The counsel for the plaintiff waived the trespass, and declared for the consequential injury arising from the loss of the crop, which had been planted and which was lost for the want of some one to work it. The negroes were kept by the defendant for about two weeks. The court asked the plaintiff's counsel if he declared in trover. He said he did not, but declared in case for the consequential injury arising from the loss of the crop. By consent of the counsel, a verdict was taken for the plaintiff, subject to the opinion of the court. The court being of opinion that trespass or trover was the remedy, and that case would not lie for the consequential injury, set aside the verdict and directed a nonsuit to be entered. From this judgment the plaintiff appealed to the Supreme Court.
Where one unintentionally does an act with force, which produces an immediate injury, the person injured may bring an action of trespass, or he may bring an action on the case. If he brings case, he declares upon the negligence or carelessness of the defendant in managing the thing, which has produced the injury, as that he so negligently and carelessly drove his coach, used his gun, rode his horse, steered his ship, etc., that the plaintiff or his property was struck and hit, and was injured in consequence of such carelessness. In such an action, upon the case, the plaintiff may recover not only for the immediate injury, but for all other injuries flowing from and out of it. But when the forcible act is done willfully, negligence is of course negatived, and then trespass is the only remedy for the immediate injury. Moreton v. Harden, 10 Eng. C. L., 316; Williams v. Holland, 25 Eng. C. L., 50; Lloyd v. Needum, 11 Price, 608; 10 Wendell, 324. If trespass be brought, damages for all ulterior injuries beyond the immediate injury can be recovered only under a per quod, on being specially stated in the declaration. Chitty Plead., 442; Lindon v. Hooper, Peake, 63; Cowper, 418. Judge Blackstone says that every action of trespass with a per quod includes an action on the case. Scott v. Shepperd, 2 Black., 897. The plaintiff contends that, inasmuch as the damages now sought to be recovered (for the loss of the crop) would not have been recovered if she had brought trespass, but under a per quod in her declaration, she is now entitled to waive the damages for the willful taking of the slaves, and (208) recover in this action on the case for the loss of the crop, as a consequential damage. We answer that the declarations must of necessity state the forcible and willful taking of the slaves; the immediate injury, therefore, cannot be redressed in an action on the case. And it seems to us that all the subsequent injuries resulting from this willful act are as links in the same chain, or branches from the same stem; and if the immediate injury cannot be redressed in this action, none of the incidental injuries can be. When Judge Blackstone made the above remark he referred to the case of Bourden v. Allaway, 11 Mod., 180. That was an action on the case for procuring the plaintiff to be arrested and carried to prison without a just cause. The case in Modern is very loosely reported; it was, however, an action on the case, and if the process issued from a court having jurisdiction, and the defendant maliciously caused it to be issued, then case was the only remedy; but if the court which issued the process had no jurisdiction, then we hold that the plaintiff must bring trespass. Allen v. Greenlee, 13 N.C. 370. As the action was in case, upon an injury proper for that action, the observations made by the Court were correct, that the plaintiff might skip over the immediate injury and recover for any other injuries which followed and were consequent upon the immediate injury. We think that Judge Blackstone meant no more than this when he made the remark referred to. Pitts v. Gaince, 1 Salk., 10, was an action on the case by the captain of a ship for the injury which he had sustained as master. He was not the owner of the ship, which the defendant had willfully seized; he did not declare upon his possession as bailee, but only for the injury which he had sustained as captain in consequence of the breaking up of the voyage. That case, therefore, is not one that supports the declaration in this case. In Wilson v. Smith, 10 Wendell, 328, the Court say that in trespass all the consequential damages may be recovered under a per quod, so that there is no necessity for departing from the appropriate form of action. (209) We think that all the authorities are against the plaintiff, and that the judgment must be
PER CURIAM. Affirmed.