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Vosburg v. Putney

    Citation. Vosburg v. Putney, 86 Wis. 278, 56 N.W. 480, 1893 Wisc. LEXIS 133 (Wis. 1893)

    Brief Fact Summary. Putney (Defendant) slightly, but unlawfully, kicked Vosburg (Plaintiff) during school. Defendant did not intent to do any harm to Plaintiff. Although the kick was slight, Plaintiff lost the use of his limb because Defendant’s kick revivified a previous injury.

    Synopsis of Rule of Law. In actions for assault and battery, Plaintiff must show either that the intention was unlawful, or that Defendant is at fault. The wrongdoer is liable for all injuries resulting directly from the wrongful act whether they could or could not have been foreseen by him.


    Facts. Plaintiff brought an action against Defendant to recover damages for assault and battery. Both Plaintiff (14-years old) and Defendant (11-years old) are students. Plaintiff and Defendant were sitting opposite each other across an aisle in school. Defendant reached across the aisle and slightly kicked Plaintiff in the shin. At first Plaintiff did not feel it. However, a few minutes later, Plaintiff felt a violent pain and cried out loudly. A few days before this incident, Plaintiff had hurt the same spot on his leg. Plaintiff’s) leg was in the process of healing. The theory of at least one of the medical witnesses was that Defendant’s kick revivified the microbes, causing bone destruction. Medical testimony agreed that Defendant’s slight kick was the exciting cause of the injury to P. P lost the use of his limb. The jury rendered a verdict for Plaintiff in the amount of $2,800. The case was again tried in the circuit court, and the trial resulted in a verdict for Plaintiff in the amount of $2,500. Defendant appealed from the judgment.

    Issue. There are 2 separate issues in this case. The first issue deals with intent. The second issue addresses damages.
    * Is the rule “the intention to do harm is of the essence of an assault” in actions to recover for assault, applicable to actions to recover for assault and battery?
    * Is the wrongdoer liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him?

    Held. No, in actions for assault and battery, Plaintiff must show either that the intention was unlawful, or that Defendant is at fault. Yes, the wrongdoer is liable for all injuries resulting directly from the wrongful act whether they could or could not have been foreseen by him. Judgment reversed and case remanded for a new trial.
    * The rule, “the intention to do harm is of the essence of an assault” in actions to recover for assault, does not apply to actions to recover for assault and battery. The jury found that Defendant did not intend to do any harm to Plaintiff. Thus, Defendant maintains Plaintiff has no cause of action. If this were an action to recover for assault instead of assault and battery, the rule would apply and Plaintiff would have no cause of action. In an action to recover damages for an alleged assault and battery, Plaintiff must show either that the intention was unlawful, or that Defendant is at fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. The kicking of Plaintiff by Defendant was an unlawful act and thus the intention of Defendant to kick Plaintiff was also unlawful. In this case, the act was unlawful since it took place during class, rather than on the playground. Had the Defendant kicked Plaintiff on the playground, the court would hesitate to hold the act of Defendant unlawful, or that he could be held liable in this action. Under these facts, Plaintiff can show that the intention was unlawful. The injury to Plaintiff was inflicted in the classroom, after the teacher had called it to order. Plaintiff has a cause of action for assault and battery.
    * The wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. The circuit court correctly refused to submit questions to the jury that would limit damages recoverable by Plaintiff to only such damages as Defendant might reasonably have contemplated. Defendant is liable for all of Plaintiff’s injuries caused by Defendant’s slight kick.

    Discussion. Because Defendant kicked Plaintiff in school when it was inappropriate, the court held it was unlawful and that unlawfulness was enough to impose liability on Defendant. A defendant takes a plaintiff as he finds him.


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