McAdams v. Windham

• Decision Date: 30 November 1922
• Docket Number: 6 Div. 577.
• Parties: MCADAMS v. WINDHAM.
• Court: Alabama Supreme Court

94 So. 742

208 Ala. 492

MCADAMS v. WINDHAM.

6 Div. 577.

Supreme Court of Alabama

November 30, 1922

Appeal from Circuit Court, Lamar County; T. L. Sowell, Judge.

Action by Effie McAdams, as administratrix of the estate of William Curtis McAdams, deceased, against Whitten Windham, for damages for wrongful death. From a judgment for defendant plaintiff appeals. Affirmed.

S. T Wright, of Fayette, for appellant.

Bankhead & Bankhead, of Jasper, for appellee.

GARDNER J.

Appellant as administratrix of the estate of William Curtis McAdams deceased (her husband), brought this suit against appellee to recover damages for the death of her intestate as the result of an alleged assault and battery, committed upon him by defendant.

There were numerous counts in the complaint-some charging defendant with wrongfully and unlawfully committing the assault and battery on plaintiff's intestate by striking him with his fist, and others alleging, in substance, that plaintiff's intestate and defendant entered into a friendly sparring match, and that defendant negligently or recklessly struck plaintiff's intestate one or more blows with his fist, thus causing his death.

The defendant insisted as a defense to this cause of action, that he and plaintiff's intestate mutually entered into a friendly boxing match with their fists as they had done on numerous occasions, and in the course of this boxing match, and without any unlawful conduct on his part, and without the use of more force than defendant believed in good faith was justifiable in carrying on said friendly contest, one of defendant's blows struck intestate over the heart, which produced his death.

At the conclusion of plaintiff's evidence, the defendant requested in writing the affirmative charge in his favor, which was given; and, from the judgment following in favor of the defendant, the plaintiff has prosecuted this appeal.

It is without dispute that plaintiff's intestate and defendant, at the time intestate received the fatal blow, were engaged in a friendly boxing contest as they had frequently done before. The contest had progressed only a short while at defendant's place of business-several blows having passed, striking one another with their bared fist-when suddenly the plaintiff's intestate was seen to stagger, and was caught by one Waldrop, a spectator, who laid him upon the floor, where he died in a few minutes. There is no controversy about the fact that this sparring match was carried on in entire good faith by both parties, in a spirit of play, and there is no contention that their conduct was unlawful. Upon the examination of the body of the deceased, it was found there was a bruised place over the heart, and it is surmised that the blow struck by defendant upon that particular spot proved fatal.

It is a general rule of law that a blow thus inflicted in a friendly mutual combat-a mere sporting contest-is not unlawfully inflicted, the parties being engaged in the violation of no law. "Harm suffered by consent is not, in general, the basis of a civil action. This is the meaning of the maxim, 'volenti non fit injuria."' 1 Jaggard on Torts, 199. This consent is of course limited by the...