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Vosburg v. Putney: 1890

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

Suggestions for Further Reading

Henderson, James A., Jr. "Why Vosburg Comes First." Wisconsin Law Review, (1992): 853ff.

Rabin, Robert. "The Historical Development of the Fault Principle: A Reinterpretation." Geolgia Law Review (1981): 925 ff.

Zile, Zigurds L. "Vosburg v. Putney: A Centennial Story." 'Wlisconsin Law Review (1992): 877 ff.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1883 to 1917Vosburg v. Putney: 1890 - A Kick Rebounds, "a Peculiar Suit", Litigation Continues