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plain, as only to require to be stated to receive the assent of every

one.

[But it is said that there was a tendency to injure, consisting in] addressing it to the plaintiff or Susan Sloan. The address of the letter to the plaintiff or Susan Sloan, does not of necessity, I think, make the defendant answerable for a publication of the slander of, and concerning the plaintiff. The address would have authorized either to open and read the letter; and if the proof had been that Susan Sloan had read the letter, or hearing of it, had required the plaintiff to read it to her, and he had so done, I should have thought the fact of publication proved. But the letter reached him; he opened and read it of his own head to the witness and his family. Whether Susan Sloan was or was not present, does not appear. His act on his part cannot be visited on the defendant. He himself published the defendant's slander, and must bear the consequences of his folly. . . .

EVANS, J., and BUTLER, J., concurred; the latter, however, not without entertaining some doubts as to the correctness of the opinion.

RICHARDSON, J., dissenting. . . . The writer is prima facie liable, if the libel has been practically published, no matter how, unless he disprove the publication being his act. He stands like the man who threw a lighted cracker into a crowd, which being thrown from hand to hand, at length put out the eye of a bystander. The first aggressor was held liable for the whole injury. . . . If publication has practically followed, we are not to infer the negative, nor to be astute in order to shield the slanderer; but leave the jury to refer the publication to the malicious author, from slight circumstances, and the character of the case.

GANTT, J., concurred.

614. MCNEIL v. MULLIN

SUPREME COURT OF KANSAS. 1905

70 Kan. 634, 79 Pac. 168

ERROR from District Court, Clay County; SAM KIMBLE, Judge. Action by Edward McNeil against Fred Mullin. Judgment for defendant, and plaintiff brings error. Reversed.

F. P. Harkness, Geo. L. Davis, and R. C. Miller, for plaintiff in error. Coleman & Williams, for defendant in error.

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 indicates 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 de

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fendant 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 says the defendant approached him in a threatening attitude, and that as soon as they were near enough they clinched and fell. Other testimony is to the effect that they clinched before any blow was struck. The defendant says the plaintiff struck him as soon as he could be reached, thereby delivering the technical "first blow" of the altercation, and his testimony is 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. . . . 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. . . . Therefore the fourth instruction to the jury misstated the effect of the pleadings in the case, and the law of mutual combat, so far as it was applicable to the evidence, should have been given in place of the seventh instruction.

1. If the parties fought by mutual consent, the circumstances of who committed the first act of violence was immaterial; and, so long as each combatant persisted in his original determination to vanquish his antagonist, the aggressions were mutual. A resistance which has for its real object the securing of an opportunity to mangle the assailant is not legal self-defence; and while it seems to be the law that, in a proper case, the jury may be required to follow the kaleidoscopic fortunes of a rough and tumble fight, and determine whether at a given moment of time a finger was bitten off or an eye was gouged as a matter of self-protection, rather than of attack (see Gutzman v. Claucy, 114 Wis. 589, 90 N. W. 1081, 58 L. R. A. 744), they are not obliged to take the striking of the first blow as the point of departure in a case of mutual combat.

Consent to engage in mutual combat may be inferred from circum

stances. Conduct may have much more weight than profanity in determining the actual attitude of the parties toward each other, and the rules for ascertaining the true state of mind of brawlers who finally come to blows are not different from those applied in other cases.

2. If the encounter were the result of reciprocal desires to fight, the conduct of each party was criminal. Each one was punishable at least for a breach of the peace and for an assault and battery. . . . Because it was a criminal enterprise, his consent to participate in the mêlée does not deprive either party of his civil remedy against the other, and each one is entitled to recover from the other all damages resulting from the injuries he received in the fight. Chief Justice COOLEY, in his work on Torts, states the law on this subject as follows:

"Consent is generally a full and perfect shield, when that is complained of as a civil injury which was consented to. A man cannot complain of a nuisance, the erection of which he concurred in or countenanced. He is not injured by a negligence which is partly chargeable to his own fault. A man may not even complain of the adultery of his wife, which he connived at or assented to. If he concurs in the dishonor of his bed, the law will not give him redress, because he is not wronged. These cases are plain enough, because they are cases in which the questions arise between the parties alone. But in case of a breach of the peace it is different. The State is wronged by this, and forbids it on public grounds. If one is injured, the law will not listen to an excuse based on a breach of the law. There are three parties here; one being the State, which, for its own good, does not suffer the others to deal on a basis of contract with the public peace. The rule of law is therefore clear and unquestionable that consent to an assault is no justification. The exception to this general rule embraces only those cases in which that to which assent is given is matter of indifference to public order, such as slight batteries in play or lawful games — such unimportant injuries as, even when they constitute technical wrongs, may well be overlooked and excused by the party injured, if not done of deliberate malice. But an injury, even in sport, would be an assault if it went beyond what was admissible in sports of the sort, and was intentional."

Sir Frederick Pollock, in his treatise on the subject of Torts, concurs fully in these views (Pollock on Torts, 157); and the consensus of judicial opinion both in England and in the United States is, with but slight demur, to the same effect. . . .

There is some natural repugnancy to allowing damages to be recovered by a bullying blackguard who has courted a fight and has been soundly thrashed; but the law can indulge in no sentiment regarding the matter. It can concede no legal effect to his vicious purpose. His consent to fight must be treated as utterly void, and each party must be left to suffer all consequences, civil and criminal, of his reprehensible conduct.

Although the evidence fully warranted that it should be done, the jury were not allowed to apply the foregoing principles to the case under consideration. Therefore the judgment of the District Court

is reversed, and the cause is remanded for a new trial. All the justices concurring.1

Topic 2. Constructive Consent (Need of Assistance)

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615. HUGH G. v. W. T. (1442. Year-Book, 21 H. VI, fol. 14.) . . . FULTHORPE, J. Mettomus que vous mettez votre chival en un clos, et en le clos est un myer; si votre chival soit en le myer et la ad ete long temps, issint que il est

1 [PROBLEMS:

The plaintiff went on board the defendant's steamboat, just before its departure, to arrest a third person. The boat started. After a while the plaintiff found and arrested the person; the plaintiff refused the defendant's offer to set him ashore, except on condition that the defendant would also assist in getting the prisoner ashore, which defendant refused to do. Later, as the steamer passed the last land before leaving the bay and putting out to sea, the plaintiff asked the defendant to stop the steamer and put him ashore; this the defendant refused. Was he liable for imprisonment? (1838, Moses v. Dubois, Dudley, 209.)

Is the maintenance of an office for business an implied license to all persons to enter the office and remain, unless and until expressly notified to the contrary? (1867, Woodman v. Howell, 45 Ill. 367.)

W., son of the plaintiff, went to work for the defendant, to learn the trade. The plaintiff consented to W.'s departure, but refused to have anything to do with the contract between W. and the defendant. Afterwards, W. disagreed with the defendant, and left him. The plaintiff now sues the defendant for the value of the year and a half of his son's services. (1850, Cloud v. Hamilton, 11 Humph. 104.)

The defendant printed a libel on the plaintiff. The copy relied on as constituting publication had been sold by the defendant to a third person who had been sent by the plaintiff to make the purchase and had handed the purchased copy to the plaintiff. Can the plaintiff rely on this act of publication? (1844, Brunswick v. Harmer, 14 Q. B. 185.)

The plaintiff tied his horse to a post at the curb, and went into an office. The defendant took off the lines. When the plaintiff returned, he demanded the lines from the defendant, who refused. The plaintiff had recently taken some small article from the defendant, and the defendant was only retaliating by way of a practical joke. Was he excusable? (1892, Wartman v. Swindell, 54 N. J. L. 589, 25 Atl. 356.)

The plaintiff was confined for childbirth; the family doctor came to attend her; he brought with him the defendant S., unmarried, and not a physician. The plaintiff made no objection to his presence, believing him to be an assisting physician. Afterwards, on learning the truth, she brought an action. May she recover? (1881, De May v. Roberts, 46 Mich. 160.)

The plaintiff, who had voluntarily had intercourse with the defendant, sues for damage by infection from a venereal disease which the defendant then had unknown to the plaintiff. Is the defendant liable? (1878, Hegarty v. Shine, L. R. 4 Ir. 288.)

The defendant committed an abortion on the plaintiff by request. The act was a crime. Is the defendant liable in an action for damages? (1896, Goldnamer v. O'Brien, 98 Ky. 569, 33 S. W. 830.)

A.'s wife deserts him and lives with M. A. is killed by the defendant's fault. May the wife recover for his death? (1894, Thomas v. R. Co., C. C., 63 Fed. 420.)

NOTES

"Assault: consent." (C. L. R., II, 186.)]

en point de morier pour famine; si jes lui tray hors del myer, et lui port ove moy a ma meason, et la lui donne provender, et apres delivere a vous votre chival arriere, ici est nul tort en ma person, quar vous avez nul damage per mon fait; issint semble en l'auter case at barr. NEWTON, C. J., Fulthorpe dit bien, et si vous mittez un enfant a un norys a garder, et jeo lui trove en point de etre perishe, ove un chien ou un chival, et jeo lui impigne pour savement garder, et apres lui livre a vous, icy est nul tort en ma persone.

...

616. ANON. A Treatise concerning Trespasses Vi et Armis. (1704. p. 180.) Note. Tho' I do a good act, and intend it well, and it is for my Neighbour's profit, yet if what I do be a Tort in Law, it will not excuse me. In Trespass for taking Tithes, Defendant saith the Tithes were severed from the 9 parts, and were in jeopardy of being eaten by Cattle, therefore the Defendant carried them to the Plaintiff's own Barn; it was adjudged no Plea (durus Sermo!), 15 H. VII, 17; Dier, 36 b.

617. BISHOP BURNET. Life of Lord Clarendon. (P. 347; quoted in 6 How. St. Tr. 822.) [The Great Fire of London, in 1666,] fell out at a season in the year, the beginning of September, when very many of the substantial citizens and other wealthy men were in the country, whereof many had not left a servant in their houses, thinking themselves upon all ordinary accidents more secure in the goodness and kindness of their neighbours than they could be in the fidelity of a servant; and whatsoever was in such houses was entirely consumed by the fire, or lost as to the owners. And . . . when the fire came where the lawyers had houses, as they had in many places, especially Serjeants-inn in Fleetstreet, with that part of the Inner Temple that was next it and White Friars, there was scarce a man to whom those lodgings appertained who was in the town: so that whatsoever was there, their money, books, and papers, besides the evidences of many men's estates deposited in their hands, were all burned or lost, to a very great value. . . . The Lord Mayor, though a very honest man, was much blamed for want of sagacity in the first night of the fire, before the wind gave it much advancement. . . . When men who were less terrified with the object pressed him very earnestly that "he would give order for the present pulling down those houses which were nearest and by which the fire climbed to go farther" (the doing whereof at that time might probably have prevented much of the mischief that succeeded), he thought it not safe counsel, and made no other answer than that "he durst not do it without the consent of the owners." His want of skill was the less wondered at, when it was known afterwards, that some gentlemen of the Inner Temple would not endeavour to preserve the goods which were in the lodgings of absent persons, nor suffer others to do it, "because," they said, "it was against the law to break up any man's chamber."

618. BASS v. CHICAGO, BURLINGTON, & QUINCY R. Co. (1862. 28 Ill. 9, 18; action for damage by fire set by the defendant's locomotive.) BREESE, J. The case is greatly aggravated on the part of the defendant, by the facts so distinctly charged, that while the fire was in progress through the stubble field, twenty servants of the defendant were at hand who were notified the fire came from a locomotive of the defendant, and who were in a condition to arrest and extinguish it before it reached the plaintiff's stacks (and his servants were absent, without any knowledge of the disaster), and who were specially requested to

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