Hart v. Geysel , 159 Wash. 632 ( 1930 )

I am unable to concur in the prevailing opinion because it is contrary to the better reasoning as stated in what is called the majority rule, is contrary to public policy, and sets a bad precedent.

The first error contained in the prevailing opinion is that there are no facts in the complaint showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force. If excessive force be necessary as an element of recovery in a case where a mutual combat was voluntarily engaged in, the complaint alleges it in the following language:

". . . the said Cecil Geysel, having engaged and while engaged in the said unlawful encounter with the said Hamilton I. Cartwright, continued fighting with the said Hamilton I. Cartwright and did unlawfully and unjustifiably assault, strike, beat and injure the said Hamilton I. Cartwright, and did strike the said Hamilton I. Cartwright so cruelly and with such force and violence as to knock him down and cause him to fall upon the floor, from which said assault, striking, beating and blows, and from the injuries received from the falling the said Hamilton I. Cartwright died."

The foregoing certainly was an allegation of excessive force and brings the case squarely under our own decision in Milam v.Milam, 46 Wn. 468, 90 P. 595, which is distinguished in the majority opinion upon the ground that it was decided on the theory of excessive force. The principal contention in theMilam case, as shown by the briefs filed therein, was that the affray in that case was mutual and voluntary and, therefore, the act committed was not done against the will of the party assaulted. Unless this court intended to deny that proposition, there could be no recovery even when excessive force appears, just as in the present case.

For once, I am unable to agree with either the reasoning or conclusions arrived at tentatively by the American Law Institute in its Restatement of the Law, reference to which is made in the majority opinion, as being the better reasoning and the better principle to follow in deciding this case. I admit that ancient precedents should not govern where they are bad. One ancient case criticized in the Restatement, supra, was that of Matthew v. Ollerton, Comerbach 218, 90 Eng. Reprint 438, which is said to be a mere dictum stating:

". . . if a man license another to beat him, such license is void as it is against the peace."

This dictum, it is said, was followed in a more modern case,Boulter v. Clark, Buller's Nisi Prius, 16, where the presiding judge ruled that, the fighting being unlawful, the consent to fight, if proved, would not bar the plaintiff.

Although that may be but dictum and of faulty, human origin, there is ancient and Divine authority in the Mosaic law:

"And if men strive together, and one smite another, with a stone, or with his fist and he die not but keepeth his bed; if he rise again, and walk about upon his staff, then he that smote him be quit; only he shall pay for the loss of his time and shall cause him to be thoroughly healed." Exodus XXI:18, 19.

See, also, Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230,McNeil v. Mullin, 70 Kan. 634, 79 P. 168; Willey v.Carpenter, 64 Vt. 212, 23 A. 630, 15 L.R.A. 853, Littledikev. Wood, 69 Utah 323, 255 P. 172.

Our statute, Rem. Comp. Stat., § 2556, makes prize fighting unlawful. Hence, there could be no lawful consent to such a combat. Physical combats are against the peace, anyway. Had it been a duel, it would have been unlawful, and consent to fight a duel would not prevent recovery by either those injured, on the ground of excessive force, or the heirs or personal representatives of those injured.

The reasoning of Judge Cooley is, to my mind, greatly superior to the reasoning employed in the Restatement of the Law on Torts. Judge Cooley reasons as follows, Cooley on Torts (3d Ed.), p. 282:

"It is implied, in an assault or battery, that it is committed against the assent of the person assaulted; but there are some things a man can never assent to, and therefore his license in such cases can constitute no excuse. He can never consent, for instance, to the taking of his own life. His life is not his to take or give away; it would be criminal in him to take it, and equally criminal in any one else who should deprive him of it by his consent. The person who, in a duel, kills another, is not suffered to plead the previous arrangements and the voluntary exposure to death by agreement, as any excuse whatever. The life of an individual is guarded in the interest of the State, and not in the interest of the individual alone; and not his life only is protected, but his person as well. Consent cannot justify an assault.

"But suppose, in the duel one is not killed, but only wounded; may he have an action against his adversary for this injury? If there is any reason why he may not, it must be because he has consented to what has been done. Volenti non fit injuria. But if he had no right or power to consent, and the consent expressed in words was wholly illegal and void, the question then is, how a consent which the law forbids can be accepted in law as a legal protection?

"Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to. . .

"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 men fight, the State will punish them. 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. Where a combat involves a breach of the peace, the mutual consent of the parties thereto is to be regarded as unlawful, and as not depriving the injured party, or, for that matter, each injured party, from recovering damages for injuries received from the unlawful acts of the other."

See, also, 1 Jaggard on Torts, p. 203, to the same effect.

I am convinced the complaint stated a cause of action under the correct principles of law and the judgment should be reversed.

FULLERTON, J., concurs with HOLCOMB, J.