Vosburg v. Putney: 1890

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Vosburg v. Putney: 1890

Plaintiff: Andrew Vosburg
Defendant: George Putney
Plaintiff Claim: That defendant kicked plaintiff and otherwise ill-treated him, thereby making plaintiff ill, causing great pain and mental anguish, and leaving him permanently crippled
Chief Defense Lawyers: Milton Griswold, Theron Haight
Chief Lawyers for Plaintiff: Ernst Merton, Timothy Edward Ryan
Judge: Andrew Scott Sloan
Place: Waukesha, Wisconsin
Date of Trial: January 15-17, 1890
Verdict: Defendant was liable for injury to plaintiff
Award: $2,800 plus court costs

SIGNIFICANCE: This seemingly petty trial in an obscure courtroom, little known to most Americans even in its own day, is one of the classic landmark cases in American legal history—and therefore well known to all law students. Its importance lies not only in its implications for the branch of civil law known as tort—specifically, the laws that deal with the recovery of payments for unintended and unforeseeable harm—but also for other issues raised by the series of legal battles that ensued.

By 1889, the village of Waukesha, Wisconsin, just outside Milwaukee, had become known as the "Saratoga of the West" after the curative powers of its local spring water were discovered. While life in Waukesha was more bustling than its location suggested thanks to the wealthy visitors who flocked to its spas, it was an unlikely setting for a spate of litigation that would result in legal doctrine still scrutinized by law students today. The personal injury lawsuit—so often demonized in the shape of the hospital-hasing lawyer today—might have been foreign to the Waukesha litigants. However, the personal drama that unfolded in the Vosburg trials suggests that something in the American experience was ripe for the growth of this area of the law.

It was for work that Seth Vosburg, father of three, located his family to Waukesha, and shortly after their arrival he took on a teamster's job with Barker Lumber Company. His eldest son, Andrew, was enrolled in the highly regarded Union School, the oldest permanent school in the village. Andrew had suffered successive childhood illnesses and in January 1889 had injured his leg in a sledding accident. Despite his physical weakness, Andrew was expected to complete his chores and contribute to the livelihood of his family.

Also enrolled at the Union School was George Putney, son of a prosperous Waukesha family. George had already tried to bully Andrew out of possession of a schoolbook when an incident between the two boys would earn them a place in America's legal canon.

A Kick Rebounds

On February 20, 1889, after the noon recess had ended and the school bell rang, the seventh-grade class at the Union School took their seats. George, just shy of 12, and Andrew, now fifteen, sat across an aisle from one another and, just before the class was to begin, George swung his leg across the aisle and with his foot touched Andrew's injured leg below the knee. Whether George was standing or sitting, and whether he tapped Andrew lightly or kicked him, will never be known for sure. In any case, Andrew said nothing at the moment. It was not until some minutes later that Andrew burst into tears and had to be let out of the classroom.

By the time he left for home that day, Andrew was limping, and the next day he was in too much pain to remain at school. A few days later, after the condition of Andrew's leg had worsened and he was bedridden with fever, Dr. Joshua Bacon was called. Following a house call, Dr. Bacon called in Dr. Solon Marks from Milwaukee and Dr. Hugo Philler from Waukesha to consult. Dr. Philler became one of Andrew's primary care physicians.

By March 8, Drs. Bacon and Philler agreed that Andrew required surgery, which they performed while Andrew was etherized. On March 15, a second operation was performed, this time with the assistance of Dr. Benjamin Jacob. After cutting into the leg, the doctors expected to scrape the bone. Instead, they found the bone had decayed so drastically that to do so would have crumbled it. Only the pleading of Andrew's father, Seth, saved Andrew from amputation during this second operation.

It appeared that Andrew would be crippled for life. Having lost the labor of their eldest son and too poor to cover the mounting medical expenses, the Vosburgs retained Timothy Ryan and Ernst Merton, local law partners. The Putneys had in fact offered to reimburse the Vosburgs for the medical bills but Seth Vosburg felt that the sum was insufficient. Who first proposed it was never made known, but the Vosburgs decided to bring both a criminal suit and a civil action against George Putney.

"A Peculiar Suit"

Prior to the first trial for the civil suit, George Putney was brought up on the criminal charge of misdemeanor assault. In small towns in those days, minor criminal cases did not require full-scale trials but were heard by justices of the peace and quickly disposed of. On October 22, 1889, the boy was arrested, tried, and convicted by a justice of the peace, Alonzo Tyler. He was ordered to pay a fine of $10, but an appeal was filed immediately (although it appears that young Putney actually spent one night in the local jail). Represented by Theron Haight, Putney's conviction was overturned on appeal, apparently on account of George's young age.

Meanwhile, a civil action had been filed on behalf of Andrew Vosburg against the now 12-year-old Putney. Andrew Vosburg v. George Putney came to trial on January 15, 1890, in the Waukesha County Court House, before Judge Andrew Sloan. The case had already received considerable attention in the Waukesha newspaper, and the story was now newsworthy as far away as Milwaukee. Most likely, too, the relative prominence and wealth of the Putney family further highlighted the dramatic story line in the dispute between young George and the unfortunate Andrew Vosburg.

Andrew Vosburg and his seventh-grade teacher were the first called to testify. The teacher, however, was not of much help as she seemed unwilling to say she had witnessed the actual kick. Andrew's attorneys sought to rest their case on the liability rule of "trespass" on Andrew's person, seeing no need to establish any malicious intent on George's part. The defense, however, suggested that intent mattered, and asked George whether he intended to hurt Andrew. George claimed that the reason he tapped Andrew on the shin was that, "I wanted his attention, wanted to get him to look around." Judge Sloan seemed satisfied that the plaintiff had not made a claim of intent on George's part to do injury, and reduced the case to one of causation.

By this time it was well known to all concerned that Andrew's right leg had been injured prior to the incident in a sledding accident. Vosburg's lawyers had to establish, then, that Andrew's current crippled state was not merely the result of his earlier injury and that the kick by George was not simply responsible for speeding the course of an inevitable illness in Andrew's leg. In other words, they had to establish that even a minor tap by George could have triggered the crippling disease, and that it was the kick, in fact, that left Andrew lame.

Vosburg's case relied heavily on expert testimony from Drs. Bacon and Philler, who testified that they believed George's kick to have been the "exciting" cause of Andrew's illness. While they conceded that it took only a light tap to injure the bone, they insisted that it was the trauma of the "kick" that led to his ultimate disability. These doctors, early adherents to germ theory, argued that while germs were present in Andrew's leg prior to the kick, they required some exciting cause to grow.

The case was closed on January 16, after two days of testimony. The defense wanted to instruct the jury in a manner that would require them to take into account the ordinary nature of the incident between these two schoolboys. This suggested that without any intent to do harm, George should not be held liable for the unforeseen injuries resulting from an innocent tap. They also wanted to instruct the jury that germs would have grown with or without George's kick. Judge Sloan rejected the defense counsel's instructions, and instead used an analogy for the jury: "If in reaching over to the clerk, in passing a book or paper, I hit this ink stand and knock that over and strike him on the head and produce a serious injury, it would be an unavoidable accident; but if I shove it over knowingly, consciously, then the law comes in and says I am liable for all the necessary, natural consequences of the act." Since there was no question that George had acted knowingly and consciously, the question for the jury was simply whether the kick was the cause of Andrew's condition.

After deliberating all night, the jury found for the plaintiff and awarded damages in the amount of $2,800. To modern ears accustomed to multimilliondollar awards, this judgment sounds almost ludicrous. Although the sum was about four times Seth Vosburg's annual wages, it could not have been that big a strain on the Putney family. One might assume that this ended the matter.

Litigation Continues

Instead, the Putneys saw it as a matter of principle and so the verdict in the original trial of Andrew Vosburg versus George Putney was only the beginning of what turned into years of litigation between the two families. First, the Putneys appealed the decision in the original trial. Their appeal was heard before the Supreme Court of Wisconsin on October 20, 1890, and in a decision issued by Justice Harlow Orton on November 5, 1890, the verdict was reversed on error and remanded for a retrial. After all of the wrangling by both sides over the issue of intent, the reversal was premised on a technicality over the admissibility of evidence.

The case was then retried before Judge Sloan on November 14, 1890. The cast of characters and the issues were much the same, but the tone in the courtroom was considerably more contentious. This time the Putneys placed family members and friends on the stand to testify that Andrew had been limping long before the day of the incident. The Vosburgs disputed this and also the Putneys' claim that Mrs. Vosburg had specifically told them that Andrew had not suffered from the kicking incident. Despite the Putneys' vigorously mounted defense, the jury again came back with a verdict for the plaintiff, and awarded damages in the amount of $2,500.

The Putneys again appealed, and the case was argued before the Wisconsin Supreme Court on October 26, 1891. Extremely complex arguments regarding theories of negligence and the Vosburgs' contributory negligence—for not dealing with Andrew's medical problems properly—were raised by the Putneys' lawyers. The Vosburgs' attorneys instead stressed that the rule of law was well established: An individual who committed a wrongful act was liable for all direct injury resulting from the act, even when the injury was unforeseeable. The Putneys' lawyer also introduced a new argument, claiming that upholding the verdict "will render every schoolboy in Wisconsin guilty of assault and battery a dozen times a day."

Despite the ingenious arguments by both sides, the verdict in the second trial was reversed on a technicality, just as the first had been. The decision, written by Justice William Penn Lyon, did not dispute the liability rule promoted by the Vosburgs. Rather, the trial judge had failed to sustain an objection to a question posed to Dr. Philler during his testimony, and the error warranted reversal of the judgment.

Meanwhile, Seth Vosburg had also taken young George Putney to court in a separate civil suit to recover the expenses incurred by his family and the anticipated costs of Andrew's future problems. The jury found for the father and awarded him $1,200, and this judgment was upheld on appeal. But after one criminal trial, three civil trials, and four appeals, it appears that all parties ran out of steam. In fact, it has never been clear just how much if any money was exchanged between the Vosburgs or the Putneys; because of the court costs assigned in the various trials and appeals, one expert has calculated that the Vosburgs actually ended up owing the Putneys some $770! As for Andrew Vosburg, although he wore a laced leather brace on his injured leg that somewhat limited his activities, he led a quite normal life, dying at age 64. The case, which appeals court Judge Orton had called "very strange and extraordinary," still challenges law students to untangle its complexities and their implications on the practice of law.

—Michael Bowman