Galway v. Shields.

foundation for an action, yet still common honesty and fair dealing require that he shall not be at liberty to refuse the land and demand money until the other party has refused to execute the contract." Richards v. Allen, 17 Me. 296, and Bedinger v. Whittamore, 2 J. J. Marsh. 563, announce the same doctrine in the most explicit terms.

In Collier v. Coates, 17 Barb. 473, JOHNSON, J., after citing a number of cases in support of the foregoing rule, said: "I doubt whether any well-considered case can be found in the courts of this country where the rule above laid down has been denied or even doubted."

Browne, in his treatise on the Statute of Frauds (ed. 1870), § 122, says: The right in the vendee of land by verbal contract, to recover what money or other consideration he has paid, is clearly confined to those cases where the vendor has refused or become unable to carry out the contract, the plaintiff himself having faithfully performed or offered to perform on his part."

In the case of McDonald v. Lynch, 59 Mo. 350, it appeared that the plaintiff and the defendant agreed upon a sale and purchase of a lot in the city of St. Louis, at a price named, and plaintiff paid the defendant $50 to bind the bargain. The parties differed as to what the contract was, as to a certain incumbrance on the land, and the plaintiff brought suit for the $50 paid by him.

NAPTON, J., delivering the opinion of the court, said: "There is no doubt that, notwithstanding the Statute of Frauds, if the defendant offered to comply with the parol contract, the plaintiff had no right to recover the $50 advanced."

In view of the foregoing authorities we cannot concur in the opinion of the Court of Appeals, and its judgment, and that of the Circuit Court, will, therefore, be reversed and the cause remanded.

The other judges concur, except SHERWOOD, C. J., absent. Judgment reversed.

VOL. XXVII-45

Conway v. Reed.

CONWAY V. REED.

(66 Mo. 346.)

Infant-liability for unintentional assault.

An infant is liable for his torts like an adult.

A charge of unlawful assault by shooting is sustained by proof of a shooting, and it is not necessary for the plaintiff to show an intention or negligence on the part of the defendant, but it is for the defendant to show an absence of such intention or negligence.*

A

CTION for damages sustained by plaintiff in consequence of the alleged unlawful and wrongful shooting of him by the defendant. The answer set up, as a special defense, that the parties and other boys about their own age, twelve or thirteen years, were playing together, the defendant having a gun, and that without any fault, negligence, or design on the part of defendant, the gun, without being aimed at or directed toward the plaintiff, accidentally went off, and by accident shot respondent. On the trial, evidence was offered by defendant to show accident, and plaintiff to show negligence. Plaintiff had judgment.

The first instruction given by the court, at the instance of respondent, was as follows:

1. If the jury believe from the evidence that about the time charged in the petition the defendant shot the plaintiff in the leg with a shot gun, loaded with gunpowder and leaden shot, and which gun the defendant held in his hands, then, prima facie, the plaintiff is entitled to a verdict. And if the jury find for the plaintiff, they will assess his damages at such sum as they believe he has sustained, not exceeding ten thousand dollars.

The instructions asked by appellant, and which the court refused to give, are as follows:

1. That under the pleadings and evidence in this case, the plaintiff cannot recover.

3. Under the law and evidence in this case, the defendant, Reed, not only had the right to carry his gun along with him, but also had the right to carry it loaded; and if the jury believe from the

*See Peterson v. Haffner (59 Ind. 130), 26 Am. Rep. 81, and note, 83.

Conway v. Reed.

evidence that Conway was shot, without any intention on the part of defendant to shoot him, then the burden of proof is on Conway to prove to the satisfaction of the jury that such shooting resulted from the careless or negligent manner in which the defendant used said gun at the time.

6. That the defendant is charged in the petition to have been guilty of an unlawful and wrongful assault upon the person of plaintiff on or about the 11th day of April, 1874, and that plaintiff was injured thereby.

7. That every unlawful and wrongful assault upon the person of another includes some degree of malice or some intention, however slight, to do some injury to the person assaulted; and unless the jury believe from the evidence that the defendant was prompted by some degree of malice, or had some intention to injure plaintiff at the time charged in the petition, they will find for the defendant.

Allen H. Vories, for appellant.

B. F. Loan and Bennett Pike, for respondent.

HENRY, J. An infant is liable for a tort in the same manner as an adult. Bullock v. Babcock, 3 Wend. 391; Campbell v. Stakes, 2 id. 138; Vassee v. Smith, 7 Cranch, 230; Morgan v. Cox, 22 Mo. 374.

It is contended by appellant that, because the petition alleged that defendant unlawfully and wrongfully assaulted the plaintiff and shot him with a gun, evidence of a negligent or careless shooting would not sustain the averment in the petition; in other words, that the petition alleged one cause of action, and the evidence. established another, if any. Bullock v. Babcock, supra, was an action of trespass for assault and battery. The defendant was a boy about twelve years of age, and the evidence showed a negligent shooting of plaintiff by defendant with an arrow from a bow, and it was held sufficient to entitle plaintiff to a judgment.

In Morgan v. Cox, defendant was an infant. The petition in that case alleged a negligent killing of plaintiff's slave by defendant, but there is no intimation in the opinion of the court that, if the petition had alleged, as in this case, that defendant unlawfully and wrongfully shot the slave, the evidence that it was the result of carelessness would not have established the cause of action stated

Conway v. Reed.

in the petition. LEONARD, J., said: "The facts of the present case would, under the former system of procedure, have supported an action of trespass, and cannot, we think, be distinguished from the cases cited. In one of them, the party, in uncocking his gun, accidentally discharged it and wounded a bystander. Here, the defendant accidentally struck the hammer of his gun against his saddle, and the same result ensued. In both cases it was upon the defendant to show that it happened, as the books say, by inevitable accident, and without the least fault, and the change that has been introduced by the new Code in the remedy has not changed the rules of law as to the liability of the parties." The change introduced by the new Code in the remedy did not go to the extent of requiring less or more material allegations in a petition than were necessary to constitute a cause of action at common law, but only obviated the necessity of using those formal and technical averments which, it had been held, were necessary, and for which no other mode of stating the same thing could be substituted. The change introduced, to which the very able judge, who delivered that opinion, alluded, was that made by the first section of the act of December, 1865, Revised Statutes of 1855, page 1216, which provided that there should be but one form of action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, to be denominated a civil action; and in the third section of article 6, page 1229, requiring in a petition "a plain and concise statement of the facts constituting a cause of action, without any unnecessary repetition."

These sections have been retained in the subsequent revisions. Is it true, that proof of a negligent shooting does not sustain an averment of a wrongful and unlawful shooting? With regard to the liability of the defendant, the law holds an injury inflicted through carelessness, as wrongful and unlawful; if accidental and inevitable, no blame attaches to the person inflicting the injury. He is then, in no sense, culpable. If the act was lawful and right, which is the converse of the proposition, the party inflicting the injury through negligence could not be held liable, and is only responsible because it was unlawful and wrongful.

At common law the plaintiff was held to prove the cause of action alleged in his declaration, with as much strictness as under the Code, and yet an action of trespass for assault and battery, as we have seen, was the proper form of action for direct injuries neg

Conway v. Reed.

ligently and carelessly inflicted, as well as for those that were intentional and malicious.

The celebrated case of Scott v. Sheppard, reported in 2 Wm. Black. 892, and cited and commented upon as often, perhaps, as any case in the books, was an action of trespass for assault and battery. Weaver v. Wood, Hobart, 134, cited by Judge LEONARD, was in the same form of action. There the defendant, a soldier, had accidentally shot his comrade while exercising. In all these cases, the plaintiffs maintained their actions, although the injuries. received by them were proved to have been the result of accidents, and not intentionally committed. In none of them was it alleged in the declaration that the injury was occasioned by the negligence of the defendant. "In declarations in trespass, which lies only for wrongs immediate and committed with force, the injury is stated, without any inducement of the defendant's motive and intention, or of the circumstances under which the injury was committed." 1 Chitty's Pleading, 387, 127. The court properly overruled defendant's demurrer to the evidence.

The appellant complains of the first instruction given by the court at the instance of plaintiff, which declared that if defendant shot the plaintiff, then, prima facie, plaintiff was entitled to a verdict. "A battery is the actual infliction of violence on the person," and, in an action for assault and battery, Mr. Greenleaf says: "The plaintiff must come prepared with evidence to show either that the intention was unlawful, or that the defendant was in fault, for if the injury was unavoidable, and the conduct of defendant was free from blame, he will not be liable." 2 Greenl. on Ev. 81. We do not understand by this that plaintiff must, in the first place by direct evidence, show either an intention to commit the injury, or that defendant was in fault. If the act was intentional, of course defendant would be liable, and proof of the shooting would make out a prima facie case of intentional shooting; and, when proof of the fact that defendant inflicted the injury is made, it devolves upon him to show that it occurred without fault upon his part, to exonerate himself, or that it was accidental, although occasioned by carelessness, to mitigate.

The case of Wakeman v. Robinson, 1 Bing. 213, cited by Prof. Greenleaf, as supporting the text, certainly does not sustain the proposition of the learned author, if by it is meant that the mere fact of the injury inflicted by defendant does not make out a prima