83 Neb. 218 | Neb. | 1909
This action was instituted in the district court for Buffalo county by plaintiff, Morris, and against defendant, Miller, for damages resulting from an assault and battery alleged to have been made and inflicted by defendant upon plaintiff. A jury trial was had, which resulted in a verdict in plaintiff’s favor, upon which, after an adverse ruling upon a motion for a new trial, judgment was rendered, and from which defendant has appealed. The motion for a new trial and the assignments of error in this court consist of a number of alleged grounds, but none of them is urged in the briefs, except that there was error in the instructions given by the court to the jury, errors in the admission of evidence, and misconduct of the jury while deliberating upon their verdict. These contentions will be noticed in the order in which they are presented.
The jury were quite fully instructed upon the different phases of the case, and, with one other exception, to be hereafter noted, no complaint is made of instructions given. As it is the well-established rule that all instructions given should be considered and construed together, we refer to instruction numbered 10, to which no complaint is made, and Avhich we here set out: ■ “The court instructs the jury that, if you believe from the evidence that plaintiff began the affray and was the aggressor, then you are instructed that the defendant had a right to defend himself from such assault, and he would have the right to use that amount of force which was reasonably and apparently necessary in making his defense. And if you believe from the evidence that the defendant was so acting in self-defense from a real and honest -conviction of apparent danger, or what would seem apparent danger to a reasonable man, you will return a verdict for the defendant, unless you further believe from the evidence that the defendant unlawfully used a degree of force and violence upon the plaintiff that was not reasonably and apparently necessary under the facts and circumstances then and there surrounding the defendant.”
These instructions correctly state the law. The evidence clearly and conclusively establish the fact that the parties were in a business house in Elm Creek, and that there was a difference or quarrel between them. As to the extent of the anger displayed by each of them, the evidence is conflicting; but all agree that plaintiff left the building through the front door closely followed by defendant, both crossing the sidewalk into the street, but to only a few feet beyond the outer edge of the sidewalk, and the conflict was immediately entered upon. Just which one made the first attack-may be in some doubt, as each one places the blame upon the other. It is claimed by plaintiff that defendant made the first attack and struck him in the forehead with some deadly instrument
The next instruction of which complaint is made is numbered 11, and is as follows: “You are instructed that, if you believe from the evidence that plaintiff and defendant voluntarily and by agreement entered into a fight, still I charge you that such agreement, if made, was unlawful, for the reason that such agreement, if made, would be in violation of the laws of the state and void, and such agreement, if made, would not be any defense to this action.” This instruction was given as applicable to the contention that the fight or combat was entered into voluntarily and by mutual agreement, and that the unsuccessful party to the strife could not transfer his cause from the street to the courts, and recover damages for whatever injury he might sustain by reason of the prowess or activity of his adversary. At the time of the argument of the case at the bar of this court,"Sth^ writer was of the opinion that the giving of the instruction might have been erroneous, but more mature reflection and an examination of the authorities have led to a different conclusion. It is true that an instruction of this kind would be condemned by some reputable authorities, among which are Galbraith v. Fleming, 60 Mich. 403, and Smith v. Simon, 69 Mich. 481; but it is quite clear
In referring to the rule that one cannot recover for an injury to the infliction of which he has consented, the supreme court of Ohio, speaking through Judge Marshall, in Barholt v. Wright, 45 Ohio St. 177, say: “But as often as the question has been presented, it has been decided that a recovery may be had by a plaintiff for injuries inflicted by the defendant in a mutual combat, as well as in a combat where the plaintiff was the first assailant, and the injuries resulted from the use of excessive and unnecessary force by the - defendant. in repelling the assault. These apparent anomalies rest upon the importance which the law attaches to the public peace, as well as to the life and person of the citizen. From considerations of this kind it no more regards an agreement by which one man may have assented to be beaten, than it does an agreement to part with his liberty and become the slave of another. But the fact that the injuries were received in a combat in which the parties had engaged by mutual agreement may be shown in mitigation of damages. * * * This, however, is the full extent to which the cases have gone” — citing cases. In Grotton v. Glidden, 84 Me. 589, it is said: “The evidence satisfies us that the plaintiff’s injuries were received while he and the defendant were engaged in a voluntary fight. The defendant contends that he acted only in self-defense. But the evidence satisfies us that the fight was voluntary on the part of both parties. This brings us to the question whether, if two persons engage voluntarily in a fight, either can maintain an action against the other to recover damages for the injuries he may receive. WA
We therefore find no error in the instructions complained of.
Finding no reversible error in the record, it follows
Affirmed.