McNeil v. Mullin

• Decision Date: 07 January 1905
• Docket Number: 13,886
• Parties: EDWARD MCNEIL v. FRED MULLIN
• Court: Kansas Supreme Court

79 P. 168

70 Kan. 634

EDWARD MCNEIL v. FRED MULLIN

No. 13,886

Supreme Court of Kansas

January 7, 1905

Decided January, 1905.

Error from Clay district court; SAM KIMBLE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. ASSAULT AND BATTERY--Recoverable Damages. Damages resulting from injuries received in a mutual combat may be recovered under the allegations of a petition in the usual form for an assault and battery.

2. ASSAULT AND BATTERY--Mutual Combat--"First Blow" Immaterial. If parties fight by mutual consent the aggressions are mutual, and the circumstance of who committed the first act of violence is not material in an action by either party to recover damages for the injuries he received in the fight.

3. ASSAULT AND BATTERY--Consent Inferred. Consent to engage in mutual combat may be inferred from circumstances.

4. ASSAULT AND BATTERY--Consent Does Not Affect the Civil Remedy. 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 injuries he received in the fight.

F. P. Harkness, George L. Davis, and R. C. Miller, for plaintiff in error.

Coleman & Williams, for defendant in error.

BURCH J. All the Justices concurring

OPINION

BURCH, J.

The plaintiff sued the defendant for damages resulting from injuries inflicted in a fight. The petition was in the ordinary form for an assault and battery involving a mayhem. The answer pleaded justification. The evidence given at the trial indicated that insulting words were followed by a mutual stripping of hats and coats, a movement of the defendant toward the plaintiff in an angry manner, mutual challenges of each to whip the other, a statement by the defendant that it would not cost the plaintiff a penny to whip him, a reply by the defendant that he was no more afraid of a dollar than the plaintiff, much vile talk, and then a voluntary separation. Immediately afterward, as the parties were going in the same direction along a public street, the quarrel was renewed. The defendant stopped, alighted from his buggy, tied his horse by the roadside, and removed his hat and coat. The plaintiff stopped his team, left his buggy, and removed his hat and coat. The plaintiff said the defendant approached him in a threatening attitude, and that as soon as they were near enough they clinched and fell. Other testimony was to the effect that they clinched before any blow was struck. The defendant said the plaintiff struck him as soon as he could be reached, thereby delivering the technical "first blow" of the altercation, and his testimony was corroborated in this respect. The succeeding conduct of the parties was characterized by perfect freedom from all hampering conventionalities.

Special attention was called to the question of an agreement to fight by interrogatories propounded in the course of the introduction of the evidence, and special requests were duly made to the court by the plaintiff for instructions upon the law of mutual combat. These requests were refused and the following instructions were given:

"4. By the pleadings in this case the issues between the parties are well defined, and conditioned upon the contention of each party to the action, and I instruct you that in this case no question of law could be considered by you possibly upon any suggested theory that whatever of conflict or violence occurring between the parties was under and by virtue of any understanding, direct or indirect, or mutual agreement or consent between the parties that they should engage in a fight. Neither party is entitled to recover or defend in this case upon any such theory, the same being inconsistent with the contentions made by each in their pleadings."

"7. I instruct you further that if you believe from a preponderance of the evidence that the plaintiff did the first act of actual violence in the encounter in question, and that at the time the injuries complained of were inflicted the defendant actually believed that he was in immediate danger of receiving great bodily harm from the plaintiff, then the defendant had the right to resort to such means of defense as were within his reach, and in such case your verdict must be for the defendant."

Under the evidence the jury had the right to believe that each party voluntarily undertook to subdue the other by violence, taking the chances of receiving punishment himself; that they mutually consented to a physical combat with the mutual purpose of doing each other hurt, and the mutual expectation of encountering force in return; and that all injuries inflicted in the course of the contest were the product of this vicious animus of each participant toward his adversary. Such being the nature of the proof, it was consistent with the allegations of the plaintiff's petition in every particular. There were an assault, a beating, a wounding and maiming, unlawful, malicious, and without just cause or provocation, precisely as alleged.

The plaintiff could not have made allegations more appropriate to the nature of his case than those contained in his petition. He could have pleaded nothing to which the proof would have corresponded better. No further or broader allegations were necessary in order to include the facts disclosed by the evidence; and the plea of justification contained in the answer could not limit the scope of the petition, or impose the defendant's theory of the case upon the plaintiff. Therefore, the fourth instruction to the jury misstated the effect of the pleadings in the case, and the law of mutual...