Does a defendant who kicks another student in a classroom after school has been called to order commit an unlawful act supporting liability for battery even if he intended no harm, and was it reversible error to allow a medical expert to answer a hypothetical question that omitted a prior injury to the same leg?

Andrew Vosburg, the plaintiff, and Putney, the defendant, were students in a Wisconsin school. After the teacher had called the school to order and the regular exercises had commenced, Putney, standing in the aisle by his seat, kicked Vosburg on the shin across the aisle. The jury found that Putney did not intend to do Vosburg any harm by touching him with his foot. Vosburg's leg developed a serious inflammation and diseased condition of the bone. Vosburg had received a separate wound near the same knee in January, before the kick. Putney claimed that the January wound was the proximate cause of the injury and that the disease was already in progress when the kick occurred, so that the kick at most changed its location and hastened its progress. Dr. Bacon, Vosburg's attending physician, first saw the leg on February 25th, and Dr. Philler first saw it on March 8th. Dr. Philler was asked a hypothetical question based on the testimony about the kick and what he knew of the case, and he answered that the kick was the exciting cause of the inflammation.

The action for assault and battery was tried to a jury in the circuit court, which returned a special verdict finding that Putney did not intend to harm Vosburg. The circuit court denied Putney's motion for judgment on the special verdict, overruled his objection to the hypothetical question put to Dr. Philler, and refused to submit proposed questions on foreseeable damages to the jury. Judgment was entered for Vosburg, and Putney appealed to the Wisconsin Supreme Court.

(Lyon, J.)

Yes. The action for battery may be sustained despite the absence of intent to harm, but the judgment must be reversed because the medical expert's answer to an incomplete hypothetical question was material and fatal error.

In an action to recover damages for assault and battery, as opposed to a mere assault, the plaintiff must show either that the intention was unlawful or that the defendant was at fault. If the intended act is unlawful, the intent to commit it is necessarily unlawful. Had the parties been engaged in ordinary boyish sports on the playground and the defendant been free from malice, wantonness, or negligence, the implied license of the playground might have precluded liability. But the kick was delivered inside the school after the teacher had called it to order and the regular exercises had begun. No implied license existed in that setting, and the kick violated the order and decorum of the school and was necessarily unlawful. The unlawful intent therefore follows, and the action is sustainable.

The hypothetical question to Dr. Philler was improper. The plaintiff's testimony disclosed two wounds on the leg, the January wound and the February kick, either of which might have caused the injury. The question excluded the January wound and required the expert to give an opinion on an imperfect hypothesis that omitted a material fact essential to an intelligent opinion. With only the kick before him, the expert's conclusion that the kick caused the injury was inevitable. That answer probably had a controlling influence on the jury, so allowing it was material and fatal to the judgment.

The trial court properly refused the proposed damages questions. A tortfeasor is liable for all injuries resulting directly from the wrongful act, whether or not he could have foreseen them. Brown v. C., M. & St. P. R. Co., 54 Wis. 342. The judgment is reversed and the cause is remanded for a new trial.