McCulloch v. Goodrich

• Decision Date: 07 June 1919
• Docket Number: 21,329
• Citation: 181 P. 556,105 Kan. 1
• Parties: JANE MCCULLOCH, Appellee, v. MARGARET M. GOODRICH, Appellant
• Court: Kansas Supreme Court

181 P. 556

105 Kan. 1

JANE MCCULLOCH, Appellee, v. MARGARET M. GOODRICH, Appellant

No. 21,329

Supreme Court of Kansas

June 7, 1919

Decided January, 1919.

Appeal from Sherman district court; CHARLES I. SPARKS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MUTUAL COMBAT--Assault and Battery--Civil Damages. In an action to recover damages for an assault and battery, where the petition alleges that the defendant assaulted the plaintiff, and the answer alleges that the plaintiff assaulted the defendant, and each party introduces evidence to support his contention, competent evidence cannot be properly excluded, although it may tend to prove that the parties engaged in a mutual combat, and if there is evidence tending to prove that fact, it is proper for the court to instruct the jury concerning the law of mutual combat.

2. SAME. Where persons engage in a mutual combat, each may recover from the other all damages caused by injuries received from the other in the fight.

John Hartzler, of Goodland, for the appellant.

E. F Murphy, of Goodland, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff sued for damages which resulted from injuries inflicted upon her in an assault by the defendant. The petition alleged that the defendant assaulted the plaintiff with an umbrella and dangerously wounded her. The answer contained a general denial of the allegations of the petition, and pleaded assault and battery by the plaintiff. The answer also pleaded self-defense, and that if the defendant did strike the plaintiff with an umbrella it was unintentional and only incidental to her lawful defense against the assaults of the plaintiff. Judgment was rendered for the plaintiff, and the defendant appeals.

1. The defendant contends that the court erred in giving the following instruction:

"The jury is instructed, that if parties fight by mutual consent the aggressions are mutual, and the circumstances of who committed the first act of violence is not material in an action to recover damages for the injuries he received in the fight. If the conduct of the parties to a mutual combat constitute a breach of the criminal law, the consent of either one to participate in the melee does not deprive him of his civil remedy against the other. Each contestant may recover from the other all damages resulting from the injuries he received in the fight."

The defendant argues that, by this instruction, the court gave the law concerning mutual combat, and that under the pleadings, no evidence of mutual combat could be properly introduced. By the pleadings, each party alleged that the other committed an assault and battery on the party pleading. Each probably introduced evidence to prove her contention. That evidence may have tended to prove that each was ready to engage in a fight with the other, and that each willingly engaged in the contest. If such a condition existed, that evidence could not be excluded, and the court properly gave the instruction.

This action is closely parallel to McNeil v. Mullin, 70 Kan. 634, 79 P. 168, and the rule there declared controls.

2. Complaint is made of the following instruction:

"The defendant claims in her answer herein that the plaintiff at the time of the alleged controversy was a licensed physician and as such licensed physician was maintaining a public office in Goodland, Kansas, and that at said time she went to said office on a business errand. You are instructed that one who is a physician and maintains a public office, as such, thereby invites the public to said office for the purpose of consultation and...