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Vosburg v. Putney

Citation. 80 Wis. 523, 50 N.W. 403 (1891)
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Brief Fact Summary.

Putney (Defendant) lightly kicked Vosburg (Plaintiff) while they were in class. Although Defendant did not mean to harm Plaintiff, the kick exacerbated an old injury and caused Plaintiff’s leg to become lame.

Synopsis of Rule of Law.

In causes of action for assault and battery, the plaintiff needs to show the defendant’s action was unlawful or that the defendant was at fault. A wrongdoer is liable to pay damages for all injuries resulting from his actions, regardless of whether he could foresee those injuries.


Vosburg (Plaintiff) and Putney (Defendant) are both schoolchildren. Plaintiff had a prior leg injury that was mostly healed. He and Defendant were in their schoolroom when Defendant lightly kicked Plaintiff in the shin. The kick exacerbated Plaintiff’s past injury, and his leg became lame. Plaintiff brought an action against Defendant for assault and battery. The jury found in their 7 part special verdict that Defendant had not intended to do any harm to Plaintiff when he kicked him. They also awarded Plaintiff $2,500 for damages.


  1. Does a cause of action for battery exist where there was no intention to do harm?
  2. Is a wrongdoer liable only for damages that he could have foreseen?


  1. Yes, the Court held that a cause of action for battery can exist where there was no intention to do harm. The Plaintiff needs to show either that there was an intention was unlawful or that the defendant is at fault.
  2. No, the Court held that a wrongdoer is liable to pay damages for all injuries that came from his wrongful act, regardless of whether he could have foreseen them.


  1. The Court specified that the rule for assault prosecutions require intent to do harm, but this is not so for a battery. In this case, the Defendant unlawfully kicked the Plaintiff. Since this happened in a classroom rather than on the playground, it could not be argued that Defendant had another reason to kick, such as during play. Because the act itself was unlawful, so was the intent to do that act.
  2. In the Court’s decision on damages, it reasoned that it does not matter that Defendant could not have known about Plaintiff’s prior injury to expect Plaintiff’s leg to become lame as a result of a kick. Defendant is still liable for all injuries, whether he saw them coming or not. Because the cause of action was ex contractu and not ex delicto, this is the rule for damages.

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