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Vosburg v. Putney

Wisconsin Supreme Court

Decided November 5, 1890
Full case name: Jonathan Vosburg, Respondent, Versus Hiriam Putney, Appellant.
Citations: 80 Wis. 523, 50 N.W. 403
Full text of opinion: Made Available by Harvard Law School
Subsequent appellate history: none
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.
Opinion By
Harlow S. Orton

Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (Wisc. 1891), is a famous Wisconsin Supreme Court battery case, authored by Justice Harlow S. Orton, exemplifying the eggshell skull rule of United States tort law. The case is often taught to first-year law students in the United States as an introduction to intentional torts.


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, Wisconsin schoolroom, Putney lightly kicked Vosburg in the shin "just below the knee." The incident occurred during school hours and inside the classroom. The touch was slight and plaintiff did not feel the kick immediately. A short while later however plaintiff was in extreme pain and cried out loudly. The next day he was sick, and by the fourth day he was vomiting. On the fifth day, swelling was so bad counsel was required and plaintiff had a first operation to drain the wound. On the sixth day, a second operation occurred, which 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 were denied, the defendant appealed.


Whether the plaintiff lacked a cause of action where the jury found the "defendant, in touching the plaintiff with his foot, did not intend to do him any harm".


Judgment for the plaintiff affirmed.

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.


Intentional conduct is an act that a reasonable person in the defendant'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 is more susceptible to injury does not mitigate the tortfeasor's liability. This is commonly known as the Eggshell skull rule.

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