Vosburg v. Putney
80 Wis. 523 · Wisconsin Supreme Court · 1891
Facts
During school hours, after class had been called to order, the defendant, a student, kicked the plaintiff, another student, in the shin. The defendant did not intend to cause the plaintiff any harm. The plaintiff had a pre-existing wound near the same knee, and the kick allegedly aggravated this condition, causing inflammation and further injury. The defendant claimed the prior wound was the proximate cause of the injury.
Procedural history
The case was tried in the circuit court, which rendered a judgment. The defendant appealed this judgment, assigning several errors. This court reversed the circuit court's judgment and remanded the case for a new trial.
Issue
1. Is intent to do harm a necessary element for an action of assault and battery, or is it sufficient that the intended act itself was unlawful? 2. Was it proper to allow expert medical testimony based on an incomplete hypothetical question that excluded material facts?
Holding
1. No, intent to do harm is not required if the intended act itself is unlawful. 2. No, it was improper to allow expert testimony based on an incomplete hypothetical question. The judgment of the circuit court is reversed, and the case is remanded for a new trial due to the error in admitting expert testimony.
Rule
In an action for assault and battery, the plaintiff must show either that the intention was unlawful or that the defendant was at fault. If the intended act is unlawful, the intention to commit it is necessarily unlawful. An act is unlawful if it occurs in a setting where no implied license for such conduct exists, such as a school classroom after class has been called to order, as opposed to a playground during boyish sports.
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