Art. 4. Defenses.

defend herself or make herself heard, but also upon the element of fear when it exists." Dean v. Raplee, 145 N. Y. 324.

It was held, however, in this case that the age, strength, and relation of the parties, etc., are all elements which bear upon the question of consent, which, under the facts of the case, is a question for the jury.

In a criminal case it was held that a conviction cannot be sustained where no battery has been committed, attempted, intended, or threatened by the party accused, and there is no exception to this rule in the case of an indignity offered to a female where she is a consenting party to the act involving her own dishonor. People v. Bransby, 32 N. Y. 525.

In a criminal prosecution for indecent assault and battery upon young girls under twelve years of age, it is not necessary to show positive resistance on their part.

In regard to consent to a prize-fight as a defense to a civil action. there is an unfortunate conflict of authority, and in some cases an apparent misapprehension of the principles to be applied.

The consent of parties to a prize-fight is no defense in a criminal action for the breach of peace, as the public is plaintiff, and both parties are in the wrong. See 1 Bishop on Criminal Law, §§ 257263; 2 Bishop on Criminal Law, §§ 35, 36.

"There

In respect to prize-fights the doctrine is thus stated: is no doubt that prize-fights are altogether illegal; indeed, just as much so as that a person should go out to fight with deadly weapcns, and it is not at all material which party strikes the first blow; and all persons who go to a prize-fight to see the combatants strike each other, and who are present when they do so, are, in point of law, guilty of assault. 1 Russell on Crimes, 854; Rex v. Perkins, 4 Car. & P. 537, 19 E. C. L. 515.

The later English doctrine seems to overrule the earlier cases, and in the case of Reg. v. Coney, 8 Q. B. Div. 534, it was held that to prove that defendant was voluntarily at a fight and looking on, without other evidence, is not enough to justify a conviction for aiding and abetting the fight.

1 Bishop on Criminal Law, §§ 632, 633, states as follows: "A mere presence is not sufficient, nor is it alone sufficient in addition, that the person present, unknown to the other, mentally approves what is done. There must be something going a little further, as, for example, some word or act. The party to be charged must, in

Art. 4. Defenses.

the language of Cockburn, Ch. J., 'incite or procure, or encourage the act.""

The criminal aspect of prize-fights in this State is governed by section 458 of the Penal Code.

In respect to the effect of consent to a prize-fight, as bearing on a civil action, there is some contradiction among the authorities. It has frequently been held that consent of the plaintiff to the fight is no bar to his action. Bell v. Hansley, 3 Jones (N. C.), 131; Stout v. Wren, 1 Hawks (N. C.), 420, 9 Am. Dec. 653; Adams v. Wagner, 33 Ind. 531, 5 Am. Rep. 231; Com. v. Colberg, 119 Mass. 350, 20 Am. Rep. 328.

Though consent of the plaintiff to the fight may be given in mitigation of damages. Adams v. Wagone, 33 Ind. 531, 5 Am. Rep. 231; Logan v. Austin, 1 Stew. (Ala.) 476.

So it will be seen that many decisions hold that the doctrine of leave and license, or the maxim of volenti non fit injuria does not apply in assault and battery upon the ground that the consent to a prize-fight is in itself illegal. See also Pollock on Torts, chap. 4.

In the true theory of civil wrongs the party to a prize-fight would have no civil action against his opponent for the assault as he has consented thereto. Nevertheless there are cases where the defense between a civil and criminal action seem to be overlooked, and which have held that one may maintain a civil action for battery in an affray to which he consented. See Adams v. Wagoner, 33 Ind. 531; Stout v. Wren, 1 Hawks (N. C.), 420; Bell v. Hansley, 3 Jones (N. C.), 131; Com. v. Colberg, 119 Mass. 350.

Bishop on Non-Contract Law says (§ 196), that decisions like this have proceeded on a misapprehension, overlooking the established law not brought to the notice of the judges, and should not be followed in future cases.

There is a difference, of course, in respect to fights which are more in the nature of games, as, for example, fencing or playing with blunt swords. These are lawful because the players mean no harm for each other, as is shown by their masks and pads.

This principle was brought out in the case of Reg. v. Coney, 8 Q. B. Div. 534, the court writing as follows: "The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporeal hurt, is an assault, and that an assault

Art. 4. Defenses.

being a breach of the peace and unlawful, the consent of the person struck is immaterial. If this view is correct, a blow struck in a prize-fight is clearly an assault; but playing with single sticks or wrestling do not involve an assault; nor does boxing with gloves in the ordinary way."

As to the effect of consent as a defense for assault and battery, see Barholt v. Wright, 45 Ohio St. 179, 12 N. E. 185.

The doctrine of contributory negligence on the part of the plaintiff has no application in an action for assault and battery. Kain v. Larkin, 56 Hun, 79, 9 N. Y. Supp. 89.

SUBDIVISION 6.
Accident.

There is no liability for assault and battery arising from inevitable accident, or which ordinary human care and foresight are unable to guard against. It was so held in a case where the defendant's child threw a stone which struck plaintiff's daughter, putting her eye out, and where it did not appear that the injury was inflicted by design or carelessness, but on the contrary that it was accidental. Harvey v. Dunlop, Hill & Den. 193, citing Weaver v. Ward, Hob. 134; Gibbon v. Pepper, 4 Mod. 405; Wakeman v. Robinson, 1 Bing. 213; Bullock v. Babcock, 3 Wend. 391.

The latter case cites several early cases where, although the injury was accidental, the defendant was held in trespass; as for example, where in shooting at butts an archer's arrow glanced and struck another. Year-Book, 21 Hen. VII, 28a. Or where persons were exercising at arms, one whose gun accidentally went off was held liable in trespass for the injury caused. Weaver v. Ward, Hobart, 134. In the last case it was said: "Therefore, if a lunatic hurt a man he shall be answerable in damages and no man shall have an excuse of trespass unless it shall be done utterly without his fault."

In the case of infants it seems that an injury might properly be considered unavoidable accident which would not be so considered if done by an adult. Bullock v. Babcock, 3 Wend. 391.

In Scott v. Shepard, 2 W. Bl., 894, it was held that if one assaults another who in lifting up his stick to defend himself hits a third person, that, nevertheless, an action lies against the person giving the accidental blow. But in Morris v. Platt, 32 Conn. 75, it was held that where a person in lawful self-defense fires a

Art. 4. Defenses.

pistol at another and wounds an innocent bystander, he is not liable if he is not guilty of negligence. For the same principle, see Paxton v. Voyer, 67 Ill. 132, also Brown v. Kendall, 6 Cush. 292. But one may be liable for an injury to a third person resulting from a scuffle between two others, although done from good nature and from good motives. Johnson v. McConnell, 15 Hun, 293.

For a case discussing at some length the question of intent and of accident in trespass, see Percival v. Hickey, 18 Johns. 257. On this subject see also Laidlaw v. Sage, 158 N. Y. 73.

Where the blow which constituted the assault and battery was directed toward another person in anger, but accidentally hit the plaintiff, it was held that this was not an accident which would justify the assault. Corning v. Corning, 6 N. Y. 103.

SUBDIVISION 7.
Provocation.

Provocation is not, strictly speaking, a defense, but only goes in mitigation of damages.

in

The following extract from the opinion of Spencer, Ch. J., Lee v. Woolsey, 19 Johns. 320, gives the general statement regarding the bearing of provocative words and acts as a defense: "The evidence offered and overruled could neither be admitted in mitigation of damages, nor as explanatory of the transaction. The only view in which the evidence could be admissible would be for the purpose of showing that the defendant, under the influence of excited and irritated passions, was impelled by a sense of the injury done to him by the plaintiff, thus to redress himself. The law, in tenderness to human frailties, distinguishes between an act done deliberately and an act proceeding from sudden heat. If, upon a sudden quarrel, two persons fight, and the one kills the other, this is manslaughter only. So, if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable, the offense is a mitigated homicide; for there is no previous malice. But in every case of homicide upon provocation, if there be a sufficient time, intervening the affront and the killing, for passion to subside, and reason to interpose, the offense becomes murder. In analogy to this principle, evidence in civil actions for assaults and batteries, in mitigation of damages, has been admitted, to

Art. 4. Defenses.

show a provocation on the part of the party complaining of the injury. But the provocation must be so recent as to induce a fair presumption that the violence done was committed during the continuance of the feelings and passions excited by it. On any other principle, the law would countenance the most revengeful feelings; and indirectly, also, an appeal by persons conceiving themselves injured, to force and violence."

The mere utterance of words, however insulting and unjustified, are not an excuse in assault, although evidence thereof may be given in mitigation of damages. So held as to a common carrier where a passenger used indecent, insulting, and provoking language to a conductor. Held, that this did not prevent a recovery against the carrier, although evidence of the improper language was admissible in mitigation of damages. Webber v. Brooklyn, etc., R. R. Co., 47 App. Div. 306, 62 N. Y. Supp. 1, distinguishing Scott v. Central Park, North & East River R. R. Co., 53 Hun, 414, 6 N. Y. Supp. 382, as to the extent to which an owner or occupant of property may act in protection of his possession. See Foye v. Sewell, 21 Abb. N. C. 15; Conway v. Carpenter, 80 Hun, 428, 30 N. Y. Supp. 315.

Provocation is no defense to an assault and battery where there has been time for reflection and for the passions to cool, and cannot be taken into consideration by the jury in assessing damages. Ellsworth v. Thompson, 13 Wend. 658; Lee v. Woolsey, 19 Johns. 319.

Provocation, in order to be given in evidence, must be so recent and immediate as to induce a presumption that the violence was done under the immediate influence of the feelings and passions excited by it. Thus, the defendant cannot show any acts or declarations of the plaintiff, no matter how provocative, if they are not so connected that they must clearly be considered as part of the one and same transaction with the assault. Lee v. Woolsey, 19 Johns. 318.

The fact that a passenger while remonstrating with a conductor used indecent and provoking language does not justify a conductor in assaulting him, or prevent the passenger from recovering from the company. It seems, however, that this would not be the case if he had used the language with the intention of bringing about the assault. Webber v. Brooklyn, etc., Ry. Co., 47 App. Div. 306, 96 St. Rep. 1, 62 N. Y. Supp. 1.