Vosburg v. Putney
Encyclopedia
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| Wisconsin Supreme Court Wisconsin Supreme Court The Wisconsin Supreme Court is the highest appellate court in the state of Wisconsin. The Supreme Court has jurisdiction over original actions, appeals from lower courts, and regulation or administration of the practice of law in Wisconsin.-Location:... |
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| Decided November 5, 1890 |
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| Holding(s) | ||||||||
| In an action to recover damages for an alleged assault and battery, the plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. | ||||||||
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Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(Wisc.
Wisconsin Supreme Court
The Wisconsin Supreme Court is the highest appellate court in the state of Wisconsin. The Supreme Court has jurisdiction over original actions, appeals from lower courts, and regulation or administration of the practice of law in Wisconsin.-Location:...
1891), is a famous Wisconsin Supreme Court
Wisconsin Supreme Court
The Wisconsin Supreme Court is the highest appellate court in the state of Wisconsin. The Supreme Court has jurisdiction over original actions, appeals from lower courts, and regulation or administration of the practice of law in Wisconsin.-Location:...
battery
Battery (tort)
At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
case, authored by Justice Harlow S. Orton
Harlow S. Orton
Harlow S. Orton was a member of the Wisconsin Supreme Court from 1878 to 1895, and chief justice for 1894-95. He is chiefly remembered as the author of Vosburg v. Putney ....
, exemplifying the eggshell skull rule of United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
tort law. The case is often taught to first-year law students in the United States as an introduction to intentional tort
Intentional tort
An intentional tort is a category of torts that describes a civil wrong resulting from an intentional act on the part of the tortfeasor. The term negligence, on the other hand, pertains to a tort that simply results from the failure of the tortfeasor to take sufficient care in fulfilling a duty...
s.
Facts and Procedural History
In this case, Hiriam Putney, the defendant, was an eleven year old boy, and Jonathan Vosburg, the plaintiff, was fourteen. Vosburg's father, Andrew Vosburg, was employed at a local grain mill owned by Jacob Putney, the wealthy father of the defendant. On February 20, 1889, while sitting across an aisle from each other in their Waukesha, WisconsinWisconsin
Wisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
schoolroom, Putney reached across the aisle with his foot, and hit with his toe the shin of the right leg of the plaintiff "just below the knee." The incident occurred during school hours and inside the classroom. The touch was slight and the plaintiff did not feel it, either on account of its being so slight or of loss of sensation produced by the shock. In a few moments he felt a violent pain in that place, which caused him to cry out loudly. The next day he was sick, and by the fourth day he was vomiting. On the fifth day, swelling was so bad plaintiff had an operation to drain the wound. On the sixth day, a second operation was performed, during which it was found that the bone had so degenerated that plaintiff would never again be able to use the leg.
Unknown to the defendant, the plaintiff had sustained an injury to the same area during an earlier sledding accident. According to expert testimony the kick aggravated the existing wound, and as a direct result Vosburg permanently lost the use of his leg. Vosburg sued Putney alleging assault and battery and was awarded $2,800. On appeal, the verdict was set aside and the case was remanded for retrial. In the subsequent case, a judgment for $2,500 was granted. Putney appealed.
The case was returned to the jury, which again returned a verdict for the plaintiff and awarded $2,500. After motions JNOV
Judgment notwithstanding verdict
Judgment notwithstanding the verdict, also called judgment non obstante veredicto, or JNOV, is a type of judgment as a matter of law that is ordered at the conclusion of a jury trial....
were denied, the defendant appealed.
Issue
Whether the plaintiff lacked a cause of actionCause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
where the jury found the "defendant, in touching the plaintiff with his foot, did not intend to do him any harm".
Holding
Judgment was reversed, and the case was remanded for a new trial because of error in a ruling on an objection to certain testimony.The court held that the action was to "recover damages for an alleged assault and battery." The general rule is that
The "plaintiff must show either that the intention was unlawful, or that the defendant is in fault". (Lyon, J.) If the intended act is unlawful, the intention to commit it must necessarily be unlawful. (emphasis added)
In this case, where the "kicking" occurred mattered. The kicking was unlawful because it violated the "order and decorum of the classroom." The court states in dicta that
Had the parties been upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action.
Impact
Intentional conduct is an act that a reasonable personReasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
in the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
's position would know is substantially certain to lead to damage of another's legally protected interests. This case also states the well-settled proposition that the tortfeasor must take his victim as he finds him; that is, the mere fact that the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
is more susceptible to injury does not mitigate the tortfeasor's liability. This is commonly known as the Eggshell skull
Eggshell skull
The eggshell skull rule is a well established legal doctrine used in some tort law systems, with a similar doctrine applicable to criminal law.-The law:...
rule.