Colby v. McClendon

• Decision Date: 04 April 1922
• Docket Number: 8248.
• Citation: 206 P. 207,85 Okla. 293,30 A.L.R. 196,1922 OK 119
• Parties: COLBY ET AL. v. MCCLENDON.
• Court: Oklahoma Supreme Court

206 P. 207

85 Okla. 293, 30 A.L.R. 196, 1922 OK 119

COLBY ET AL. v. MCCLENDON.

No. 8248.

Supreme Court of Oklahoma

April 4, 1922

Syllabus by the Court.

Where parties engage in mutual combat in anger with deadly weapons each is civilly liable to the other for any physical injury inflicted by him during the fight. The fact that the parties voluntarily engaged in such a combat with deadly weapons is no defense to an action by the widow of one to recover damages for the death of her husband, caused by the other.

The instructions examined, and held, that the plea of self-defense was properly submitted to the jury.

Appeal from District Court, McClain County; F. B. Swank, Judge.

Action by Anna McClendon, surviving widow of T. L. McClendon deceased, against J. H. Colby and another, for wrongful death. Judgment for plaintiff, and defendants appeal. Affirmed.

Ben F Williams, of Norman, and J. B. Dudley, of Oklahoma City, for plaintiffs in error.

E. E Glasco and Roy Glasco, both of Purcell, and Ben Franklin, of Oklahoma City, for defendant in error.

McNEILL J.

This is an action commenced in the district court of McClain county by Anna McClendon, surviving widow of T. L.

McClendon, against J. H. Colby and Wade Stovall, to recover damages for the wrongful and intentional killing of her husband on August 16, 1911. From a judgment in favor of the plaintiff and against the defendants, the defendants have appealed.

The plaintiffs in error brief but two questions. The first is stated as follows:

"Where two persons voluntarily engage in a mutual combat, resulting in the death of one at the hands of the other, the latter is not civilly liable in damages therefor."

Plaintiffs in error allege this controversy grew out of a controversy over a schoolhouse site between the school authorities of school district No. 47 and defendant Colby. The facts are stated about as follows: Mrs. Yoder, a Choctaw Indian, was allotted 40 acres of land in what is now McClain county. In July, 1905, she and her husband executed a mortgage payable in five years. After the execution of the mortgage she permitted the school authorities to build a schoolhouse on an acre of said land. There was no conveyance made of the school site to the school district, but school was regularly carried on and conducted in the schoolhouse for years. After statehood Mrs. Yoder conveyed the land, subject to the mortgage to Mr. Glasco, who went into possession thereof. Glasco built a residence on the school site near the schoolhouse, which was used and occupied by a tenant. The school authorities had no record title to the acre of land, and Glasco refused to recognize their rights to the land. The building of the residence on the school site interfered with the running of the school, so the school district brought suit against Glasco for the purpose of quieting title to the school site and to compel the removal of the dwelling from the school site. Judgment was rendered in favor of the school district and against Glasco, directing him within 90 days to remove the residence from the school site.

In this suit it is alleged that defendant Colby and Glasco entered into a conspiracy to secure possession of said school site. Colby was not a party to the suit between the school district and Glasco, although he testified in that case. A few months prior to maturity of the mortgage executed by Mrs. Yoder on this land, Colby purchased the same, and after the mortgage matured he had the land sold by advertising, as provided under the Arkansas law. Colby bought in the property. After Colby secured the certificate of purchase, being entitled to possession, he went into possession through a tenant named Vincent. This possession was taken after the judgment in the case of School District v. Glasco and prior to the 90 days which Glasco had to remove the premises. Colby proceeded to build a wire fence around the schoolhouse and keep the school authorities out. The directors protested. Colby secured the services of Stovall, a supposed gunman. He introduced Stovall to people in that vicinity as Prof. Wade, and stated that Prof. Wade was going to open up school the next day, and notified the people to come, stating that "Stovall would not teach with schoolbooks, but with shotguns and shells." Colby and Stovall went to the residence located on the school site, and both were armed with Winchesters, and the next day proceeded to build the fence. The school trustees and patrons, about 12 in number, assembled, and all or a portion of them with firearms, and started toward the schoolhouse site to prevent the building of the fence.

It is admitted the evidence is conflicting about what occurred. Colby contends that he and Stovall saw the parties assemble, and, when the parties started to where he was, he and Stovall started to the house where their guns were, and before reaching the house shots were fired at them. After reaching the house, the battle ensued between Colby, Stovall, and the trustees and patrons. Colby was shot and injured, and deceased and another party were killed. The evidence upon behalf of defendant in error was to the effect that the trustees called to Colby to stop, as the directors wanted to talk to him; but he and Stovall proceeded to the house and secured their guns and immediately opened fire upon the directors and patrons.

The plaintiffs in error contend that, under this state of facts, this amounted to a mutual combat voluntarily entered into between the parties, and that, the deceased having voluntarily entered into the combat, Colby would not be liable for damages. The plaintiffs in error requested instructions to this effect, which were refused by the court, and the court instructed the jury, if the parties entered into a mutual combat voluntarily, this would not relieve the party in an action for damages. Plaintiffs in error admit that there is a conflict in the decisions upon this question, and admit that the majority of the courts hold contrary to that contention.

The rule prevailing in the majority of the states may be stated as follows:

"Where the parties engage in mutual combat in anger, each is civilly liable to the other for any physical injury inflicted by him during the fight. The fact that the parties voluntarily engaged in the combat is no defense to an action by either of them to recover damages for personal injuries inflicted upon him by the other."

The following cases support this rule: Thomas v. Riley, 114 Ill.App. 520; Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230; Lund v. Tyler, 115 Iowa, 236, 88 N.W 333; McCulloch v. Goodrich, 105 Kan. 1, 181 P. 556, 6 A. L. R. 386; McNeil v. Mullin, 70 Kan. 634, 79 P. 168; Grotton v....