Cogdell v. Yett

• Decision Date: 30 September 1860
• Citation: 41 Tenn. 230
• Parties: COGDELL v. YETT.
• Court: Tennessee Supreme Court

41 Tenn. 230

COGDELL

v.YETT.

Supreme Court of Tennessee.

September, 1860.

FROM COCKE.

This cause was tried before Judge T. W. Turley, at the August term, 1860. The jury returned a verdict in favor of the defendant. The plaintiff appealed.

Randolph and T. D. Arnold, for plaintiff in error.

A. J. Fletcher, for defendant in error.

McKinney, J., delivered the opinion of the court.

The judgment must be reversed. It is clearly proved that, in the difficulty between Yett and Brooks, the former struck the first blow with a yard-stick, and repeated it two or three times. If previously assaulted by Brooks, as the weight of the proof seems to establish, the assault was only with his hand, or fist no weapon being used by Brooks at the time, or until after he received the blows with the yard-stick, as it would seem.

Upon this proof, it cannot be affirmed that Yett was blameless in the eye of the law. We are not prepared to admit that the use of the yard-stick was justifiable, inresisting an assault made by one who, at the time, was unarmed. But, be this as it may, it would seem from the proof as set forth in the record before us that Yett fought willingly; and both, we think, were guilty of an affray. There is nothing in the proof to show that Yett might not easily, and with safety to himself, have avoided the difficulty by retreating and refusing to enter into the quarrel and fight. Clearly, there existed no such inevitable necessity as would be sufficient to excuse the defendant for putting out the eye of plaintiff, though wholly innocent of any such intention.

The act of engaging in the fight with Brooks being unlawful, the defendant would be liable in damages for an injury inflicted by him on a third person during the fight, though no such injury may have been intended, provided such third person had not, by his own improper conduct, brought the injury upon himself by officiously and improperly intruding himself in the way of danger.

The case is one of no very strong merits, perhaps, on the part of the plaintiff. He was the brother-in-law of Brooks, and if present at the time the blows with the yard-stick were inflicted by the defendant on Brooks (about which fact there is a direct conflict in the proof), his attitude at the time was at least equivocal, from the proof. He was standing in contact with Brooks, as stated on the one side, and it is not shown that he attempted to suppress the affray. If he placed himself in that condition for any...