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Law School Case Brief

Vosburg v. Putney (1891) - 80 Wis. 523, 50 N.W. 403, 1891 Wisc. LEXIS 234


In an action to recover damages for an alleged assault and battery, the rule is that the plaintiff must show either that the intention was unlawful, or that the defendant was in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful.


Plaintiff school child lost the use of his leg after he was kicked in the shin by a defendant school child at school in a classroom. The action was brought to recover damages for an assault and battery, alleged to have been committed by the defendant (age 11) upon the plaintiff (age 14). The plaintiff testified, as a witness in his own behalf, as to the circumstances of the alleged injury inflicted upon him by the defendant, and also in regard to an earlier wound he received in January, near the same knee, mentioned in the special verdict. The defendant claimed that such wound was the proximate cause of the injury to plaintiff's leg, in that it produced a diseased condition of the bone, which disease was in active progress when he received the kick, and that such kick did nothing more than to change the location, and perhaps somewhat hasten the progress, of the disease. The trial court overruled defendant's objection to plaintiff's physician's testimony that the exciting cause of the injury in question was the injury received at that day by the kick on the shin-bone.  The jury trial resulted in a special verdict for plaintiff for $ 2,500. Defendant appealed. 

(Procedural note: A former trial of this cause resulted in a verdict and judgment for the plaintiff for $ 2,800. The defendant appealed from such judgment to the Supreme Court of Wisconsin, which reversed and awarded a new trial.) 


In an action for assault and battery, should plaintiff injured student's physician have been allowed to answer the hypothetical question that called for his opinion in a matter vital to the case?




The Supreme Court of Wisconsin reversed the judgment. First, the Court explained that if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also unlawful. Citing the implied license of the playground, the Court explained that had the two boys been on the school playground, engaged in the usual sports, with defendant intending no harm to plaintiff, the Court would hesitate to hold defendant's act unlawful or to hold defendant liable. However, it appeared that the injury was inflicted in the classroom, after school began. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful. Next, the Court held that defendant's objection to the question put to plaintiff's physician witness should have been sustained. The physician did not have the necessary facts to form an intelligent opinion, with his opinion based solely upon the fact that the older child was kicked on the shinbone.The trial court's error in permitting the witness to answer the question was material, and necessarily fatal to the judgment. The Court held that plaintiff's action may be sustained; accordingly, the cause was remanded for a new trial. 

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