Vosburg v. Putney: 1890

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.