Vosburg v. Putney

80 Wis. 523, 50 N.W. 403, 1891 Wisc. LEXIS 234

Supreme Court of Wisconsin
ISSUE ONE:

Whether defendant had an implied license to kick plaintiff and thus, based on a jury finding that he lacked intent to do harm, should have been granted judgment on the verdict.

ANSWER:

No.

RULE:

LexisNexis Headnote 1: Intentional Torts, Assault & Battery 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.

FACTS:

Plaintiff school child lost the use of his leg after he was kicked in the shin by defendant school child at school. Plaintiff testified that he had a prior wound near the same knee. The jury returned a verdict for plaintiff.

RATIONALE:

The act was unlawful, and thus there was no implied license, because the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced.

ISSUE TWO:

Whether a physician should have been allowed testify in an assault and battery action regarding the cause of plaintiff's injury where facts already proven were excluded from the physician's consideration.

ANSWER/HOLDING:

No.

RULE:

"There can be no rule of evidence which will tolerate a hypothetical question to an expert, calling for his opinion in a matter vital to the case, which excludes from his consideration facts already proved by a witness upon whose testimony such hypothetical question is based, when a consideration of such facts by the expert is absolutely essential to enable him to form an intelligent opinion concerning such matter."

RATIONALE:

It was reversible error to allow the physician to testify because he did not have the necessary facts to form an intelligent opinion. The opinion was based solely upon the fact that the older child was kicked on the shinbone.

ISSUE THREE:

Whether the jury should have been questioned as to whether damages were likely to result from the kick, based on plaintiff's testimony that he had a prior wound near the same knee.

ANSWER:

No.

RULE:

LexisNexis Headnote 2: Remedies, Damages The rule of damages in actions for torts is 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.

RATIONALE:

The act was unlawful, and thus there was no implied license, because the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced.

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