Lail Ex Rel. Lail v. Woods
244 S.E.2d 500
N.C. Ct. App.
1978
Check Treatment
VAUGHN, Judge.

Plaintiff assigns as error the court’s refusal to submit issues of negligence and contributory negligence to the jury either instead of or in addition to the issues of assault and battery. The complaint had been drafted on the theory of negligence, and plaintiff contends that the evidence raised the question of negligence. The court should properly charge the jury on all theories of recovery supported by evidence. Morris Speizman Co. v. Williamson, 12 N.C. App. 297, 183 S.E. 2d 248 (1971); cert. den., 279 N.C. 619, 184 S.E. 2d 113. The evidence in this case shows that all the children mutually engaged in a rock fight which grew out of an earlier altercation. The uncontroverted evidence was that defendant threw the rock at one of the children. That he did not mean to hurt anyone is irrelevant; he intended to participate in the rock fight, an intentional act of violence. It has long been held in this State that because fighting is unlawful, the consent of the parties to fight is no bar to an action by one of them. Where two or more persons join in an affray, each is guilty of an assault and battery upon the others, and each may maintain an action against the others. Bell v. Hansley, 48 N.C. 131 (1855). Thus the submission of issues of assault and battery was proper.

This evidence does not, however, support the theory of negligence on defendant’s part. “[A]n intentional act of violence is *592 not a negligent act.” Jenkins v. North Carolina Department of Motor Vehicles, 244 N.C. 560, 563, 94 S.E. 2d 577, 580 (1956). There are situations where the evidence presented raises questions of both assault and battery and negligence. In the case of Williams v. Dowdy, 248 N.C. 683, 104 S.E. 2d 884 (1958), there was evidence that defendant had fired his gun into a group of workers, which would have been an assault and battery, and there was other evidence that, frightened by the advancing crowd, he had fired a warning shot into the ground before him. If injury had resulted from a ricocheting bullet, there was a proper ground for finding negligence. Therefore, instructions on both theories were properly given. Here there is no evidence that defendant did anything other than participate in a rock fight by throwing a rock at other children. Thus only issues based on the theory of assault and battery were appropriately submitted to the jury-

The issue of self-defense, however, should not have been submitted to the jury. Again the evidence was uncontroverted. Defendant left a position of relative safety and drove his minibike back to the rock fight. There is no evidence that he had any apprehension of actual danger. Defendant testified that he “got aggravated with them” and then threw the rocks back. Since the right to self-defense depends upon the defendant’s reasonable apprehension of real or apparent danger, State v. Evans, 19 N.C. App. 731, 200 S.E. 2d 213 (1973), it was error to instruct the jury upon the issue in the absence of any evidence to that effect. Gunter v. Winders, 256 N.C. 263, 123 S.E. 2d 475 (1962).

There is, however, some evidence of provocation by the plaintiff. Although provocation is not a defense to an action for assault and battery, it may be considered in mitigation of the plaintiff’s damages. Lewis v. Fountain, 168 N.C. 277, 84 S.E. 278 (1915); Frazier v. Glasgow, 24 N.C. App. 641, 211 S.E. 2d 852 (1975); cert. den., 286 N.C. 722, 213 S.E. 2d 721; see generally, 63 A.L.R. 890. In the case of Lewis v. Fountain, supra, the court properly refused to give a requested instruction to the effect that if plaintiff and defendant willingly engaged in a mutual assault upon each other with pistols and plaintiff was injured during the mutual assault, then plaintiff is not entitled to recover. The Supreme Court pointed out that such an instruction would legalize fighting by consent. The case concerned a man going to the home of his *593 sister to intervene between her and her drunken husband. The two quarreled and exchanged pistol shots. The Court obviously did not wish to approve such self-help measures with their attendant dangers. The situation is similar here, even though children are involved. On the other hand, if the provocation is great, the damages may even be reduced to a nominal amount. Palmer v. Winston-Salem Ry. and Elec. Co., 131 N.C. 250, 42 S.E. 604 (1902). When this case is retried, the jury should be instructed that if plaintiff, by his own conduct in throwing rocks, provoked or helped provoke defendant into joining in the rock fight or throwing the rock which injured him, that factor should be considered in mitigation of his damages.

New trial.

Judges Mitchell and Erwin concur.