Barholt v. Wright
| Decision Date | 10 May 1887 |
| Citation | 45 Ohio St. 177,12 N.E. 185 |
| Parties | BARHOLT v. WRIGHT. |
| Court | Ohio Supreme Court |
Error to circuit court, Portage county.
Action for assault and battery. The evidence showed that plaintiff and defendant went out to fight by agreement, and did fight and plaintiff was severely injured; one of his fingers being so bitten, among other things, that it had to be amputated. The court charged that, if the parties fought by agreement plaintiff could not recover, and a verdict was returned for defendant. Upon error to the circuit court a new trial was ordered; defendant now brings error to reverse that order.
P. B. Conant and J. H. Nichols , for plaintiff in error.
W. B Thomas and Geo. F. Robinson , for defendant in error.
It would seem at first blush contrary to certain general principles of remedial justice to allow a plaintiff to recover damages for an injury inflicted on him by a defendant in a combat of his own seeking; or where, as in this case, the fight occurred by an agreement between the parties to fight. Thus, in cases for damages resulting from the clearest negligence on the part of the defendant, a recovery is denied the plaintiff if it appear that his own fault in any way contributed to the injury of which he complains. And a maxim, as old as the law, volenti non fit injuria , forbids a recovery by a plaintiff where it appears that the ground of his complaint had been induced by that to which he had assented; for, in judgment of law, that to which a party assents is not deemed an injury. Broom, Leg. Max. 268.
But as often as the question has been presented, it has been decided that a recovery may be had by a plaintiff for injuries inflicted by the defendant in a mutual combat, as well as in a combat where the plaintiff was the first assailant, and the injuries resulted from the use of excessive and unnecessary force by the defendant in repelling the assault. These apparent anomalies rest upon the importance which the law attaches to the public peace as well as to the life and person of the citizen. From considerations of this kind it no more regards an agreement by which one man may have assented to be beaten than it does an agreement to part with his liberty, and become the slave of another. But the fact that the injuries were received in a combat in which the parties had engaged by mutual agreement may be shown in mitigation of damages. 2 Greenl. Ev. § 85; Logan v. Austin , 1 Stew. 476. This, however, is the full extent to which the cases have gone. We will notice a few of them.
In Boulter v. Clark , an early case, an offer was made, under the general issue, to show that the plaintiff and the defendant fought by consent. The offer was denied; the chief baron saying: ‘ The fight being unlawful, the consent of the plaintiff to fight, if proved, would be no bar to his action.’ Bull. N. P. 16.
A number of earlier cases were cited, and among them that of Matthew v. Ollerton , Comb. 218, where it is said ‘ that, if a man license another to beat him, such license is void, because it is against the peace.’ It will be found upon examination that this case was not for an assault and battery; it was on an award that had been made by the plaintiff on a submission to himself. The remark, however, made in the reasoning of the court, is evidence of the common understanding of the law at that early day.
In 1 Steph. N. P. 211, it is said: ‘ If two men engage in a boxing match, an action can be sustained by either of them against the other, if an assault be made; because the act of boxing is unlawful, and the consent of the parties to fight cannot excuse the injury.’
So in Bell v. Hansley , 3 Jones, (N. C.) 131, it was held that ‘ one may recover in an action for assault and battery, although he agreed to fight with his adversary; for, such agreement to break the peace being void, the maxim volenti non fit injuria does not apply.’ The following cases are to the same effect: Stout v. Wren , 1 Hawks, 420; Adams v. Waggoner , 33 Ind. 531; Shay v. Thompson , 59 Wis. 540, 18 N.W. 473; Logan v. Austin , 1 Stew. 476.
And so it was held in Com. v. Collberg , 119 Mass. 350, that where two persons go out to fight with their fists, by consent, and do fight with each other, each is guilty of an assault, although there is no anger or mutual ill-will. Champer v. State , is not in conflict with this, as will be explained hereafter.
No case has been cited that can be said to be to the contrary. What is said by PECK, J., in Smith v. State , 12 Ohio St. 466, that, ‘ an assault upon a consenting party would seem to be a legal absurdity,’ must be applied to the facts of that case. The judge was discussing the sufficiency of a count in an indictment for an assault with intent to commit a rape, without an averment that it was made forcibly and against the will of the female. The absence of consent is essential to the crime of rape, or of an assault with intent to commit a rape, where the female has arrived at the age at which consent may be given. Intercourse, because illicit, does not amount to an assault where the female consents, however wrong it may be in morals. This is all that was meant by the learned judge in using the language quoted from his opinion. In all such cases the consent of the female would, without doubt, be a bar to any right she would otherwise have to maintain an action for an assault and battery. It is said by Judge Cooley in his work on Torts, 161, that ...
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