McNeil v. Mullin

Supreme Court of Kansas · Torts

TortsAssault and BatteryMutual CombatConsentSelf-Defenseassault and batterymayhemmutual combat

Facts

The plaintiff sought damages for injuries inflicted during a fight, alleging assault and battery involving mayhem. The evidence showed insulting words, mutual challenges, a temporary separation, and then a renewed quarrel in which both parties stopped, got out, removed their hats and coats, and engaged in a physical struggle. There was evidence from which the jury could find that both parties voluntarily entered the fight intending to subdue and hurt the other. The trial court refused requested instructions on mutual combat and instead instructed that no theory of mutual agreement to fight could be considered and that if the plaintiff committed the first act of actual violence and the defendant feared great bodily harm, the verdict must be for the defendant.

Issue

When evidence would support a finding that both parties mutually consented to and engaged in a fight, may the jury be instructed to ignore mutual combat and decide the case based on which party struck the first blow and the defendant's claim of self-defense? Also, does consent to such a fight bar a civil action for assault and battery?

Rule

If parties fight by mutual consent in a breach of the peace, each commits an unlawful assault and battery, and consent to the fight does not justify the conduct or bar either party's civil remedy for injuries received. In such a case, who struck the first blow is immaterial so long as both parties persist in a mutual purpose to injure and overcome the other; conduct and circumstances may support an inference of consent to mutual combat.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Outside a tavern in Wichita, Nolan Pierce and Eric Salazar exchange insults, square up, and each says he is ready to "settle it." They both step into the street, remove their jackets, and fight until Nolan suffers a broken nose and sues Eric for battery.

What is the strongest argument against Eric's defense that Nolan consented to the fight and therefore cannot recover?

Explanation. When parties mutually consent to fight in a breach of the peace, each commits an unlawful assault and battery. The majority held that such consent is void as a justification and does not destroy either party's civil remedy for injuries received. The fight's criminal character prevents the law from treating consent as a defense. (Derived from McNeil v. Mullin (n.d.).)