Vosburg v. Putney (pg. 14)
80 Wis. 523, 50 N.W. 403 (1891)
Author: Jim

Facts: The defendant was an 11 years old guy and the injured was a 14 years old guy.  While in school, the defendant kicked the plaintiff in the shin area and that resulted in severe pain. It turned out that the plaintiff was healing from a previous injury to the area and the kick triggered the injury and the plaintiff permanently lost the functioning of the limb.

Procedure: At first trail, the plaintiff was awarded $2,800.  But due to some error, the case was reversed.  In the second trial, the jury issued a special verdict where the jury found the plaintiff to be liable for $2500, but at the same time, the jury found that the defendant did not intend to produce any serious harm to the plaintiff when he kicked him.

Issue:- Can the plaintiff have a case of law under battery even if the jury found that the defendant did not intend to harm the plaintiff?

Holding: Yes

Rationale:  Court used this rule: “if the intended act is unlawful, the intention to commit it must necessarily be unlawful. Hence, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of the defendant to kick him was also unlawful.  The court reasoned that if the kicking had happened in a playground then the story would have been different. But since the school was in order when the kick occurred, the actions of the defendant are considered unlawful. Thus the intention under the battery law is established.  (But the case was still reversed and remanded for a new trial because the trial judge erroneously allowed improper question to be asked from the plaintiff’s medical expert)

My comments/thoughts:  It is sad that the plaintiff had to wait for so long to go through the 2 trials.  And what was the result of all this, the plaintiffs got almost nothing.  Sad sad sad!!