Plaintiff was originally injured, but was recovering well. Defendant kicked Plaintiff light in the shin and reactivated the bacteria which entered in plaintiff’s body due to the first injury. Because of this reactivation, Plaintiff’s leg had a severe infection. Plaintiff’s parents sued for assault and battery against the defendant.
The case is about assault and battery between two high school students, alleged to have been committed by Putney on Vosburg.
In January 1889, Vosburg injured his leg above the knee and he had been healing well. On February 20, Putney kicked Vosburg’s shin lightly during school hours. Vosburg did not feel the pain then, but he soon suffered severe pain. After medical examinations, the doctor said that Vosburg was having a serious infection caused by microbes, which has likely entered his leg when he was initially injured in January. However, the microbes were dormant until Putney injured him again. Putney’s kick revivified the microbes and caused it to eat away at Vosburg’s flesh and bone. Vosburg completely lost use of his leg, and his parents brought suit for assault and battery against Putney.
Answer to the first issue: no. In actions for assault and battery, Plaintiff must show either that the intention was unlawful, or that defendant is at fault.
Answer to the second issue: 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 judgment of the circuit court is reversed, and the case was remanded for a new trial.
In determining if intention to do harm is necessary, the court first confirmed the jury found that the defendant, in lightly kicking the plaintiff with his foot, did not intend to do any harm. The court stated that the defendant’s proposition “the intention to do harm is of the essence of an assault,” is a correct rule, but it is only application in mere assaults, not an alleged assault and battery. The court clarified that the correct rule is for the plaintiff to show either that the intention was unlawful, or that the defendant is at fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of the defendant to kick him was also unlawful.
Establishing the correct rule, the court moved to examine if the kick itself is unlawful. Since the kick happened during school hours, after the regular exercises time, and the teacher had called order, there is no implied license to do the kicking. If the two students were on the playgrounds engaging in school sports, there might be implied license for body contact. But that is not the circumstance in this case, so the kicking is unlawful, which makes the intention of the defendant to kick the plaintiff also unlawful.
The court next rejected the proposition that defendant should only be responsible for damages that he could reasonably foresee. The court stated that once the defendant is determined to be liable, the rule of damages in actions for torts was held in Brown v. C., M. & St. P. R. Co. 54 Wis. 342, to be that the wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him.