Monday, November 11, 2013

Vosburg v. Putney case brief

Vosburg v. Putney case brief summary
50 N.W. 403 (Wis. 1891)

Appellant younger child sought review of a judgment of the Circuit Court for Waukesha County (Wisconsin) entered in favor of appellee older child in the older child's assault and battery action.


A younger child sought review of a judgment in favor of an older child in his assault and battery action. The injury complained of was caused by a kick inflicted by the younger child upon the leg of the older child, a little below the knee.


  • On appeal, the court reversed the judgment. 
  • The court found that the injury was inflicted in school after the regular exercises of the school had commenced. 
  • Thus, the court ruled that no implied license to kick the older child existed. 
  • The court also found that the trial court properly refused to submit to the jury questions founded upon the theory that only such damages could be recovered as the younger child might reasonably be supposed to have contemplated as likely to result from his kicking the older child. 
  • However, the court determined that the physician's testimony was incorrectly permitted because he did not have the necessary facts to form an intelligent opinion. 
  • The court found that the physician's opinion was based solely upon the fact that the older child was kicked on the shinbone. 
  • Thus, the court ruled that the error in permitting the physician to answer the question was material and necessarily fatal to the judgment.


The court reversed the judgment.

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