80 Wis. 523, 50 N.W. 403 (Wisc. 1891)
Facts and Procedural History
In this case, Putney, the defendant, was an eleven year old boy, and Vosburg, the plaintiff, was fourteen. On February 20, 1889, while sitting 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. Plaintiff did not feel the kick. A few minutes later, he as in extreme pain, The next day he was sick, and the fourth day he was vomiting. On the fifth day, swelling was so bad counsel was required and plaintiff had first operation to drain the wound. On the sixth day, a second operation occurred, finding the bone having so degenerated that plaintiff would never again use the leg. Unknown to the defendant, the plaintiff had sustained an injury to the same area during an earlier sledding accident. 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.
Issue
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".
Holding
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.
Impact
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.
