About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

2 Vand. L. Rev. 301 (1948-1949)
Recent Cases

handle is hein.journals/vanlr2 and id is 319 raw text is: RECENT CASES ASSAULT AND BATTERY-INJURY SUSTAINED IN PRIZE FIGHT- CONSENT AS A BAR TO CIVIL LIABILITY Defendants, who operated an illegal' boxing concession in connection with their carnival, solicited plaintiff, an eighteen-year-old boy, to engage in one of the matches for a consideration. Plaintiff in voluntarily participating therein, suffered a broken jaw, a concussion of the brain and minor injuries. There was no anger between the contestants, nor was the force used in excess of that which is to be anticipated in such a contest. Action by the boy for personal injuries and by his father for medical and surgical expenses. Held (2-1), no recovery in either action on the ground that consent bars recovery. Hudson v. Craft, 195 P. 2d 857 (Cal. App. 1948). As a general rule, that to which a person consents is not esteemed in law an injury. Volenti non fit injuria.2 Yet a majority of American courts3 have refused to apply this fundamental principle to assault and battery by mutual consent, it being generally held that consent to engage in a mutual combat which amounts to a breach of the peace is not a good defense in a civil action for injuries received as a consequence, and that each participant is civilly liable to the other.4 A minority of the courts, however, deny re- 1. CAL. PEN. CODE § 412 (1941) ; CAL. BUS. AND PROF. CODE §§ 18752, 18780 (1944). Cf. Million, The Enforceability of Prize Fight Statutes, 27 Ky. L. J. 152 (1939). 2. He who consents to an act is not wronged by it. CAL. Civ. CODE § 3515 (1941) ; Adolff v. Columbia Pretzel & Banking Co., 100 Mo. App. 199, 73 S. W. 321, 323 (1903) ; Milliken v. Heddesheimer, 110 Ohio St. 381, 144 N. E. 264, 266 (1924); BRoom, LEGAL MAXI s 217 (7th London ed. 1900). 3. Schwaller v. McFarland, 228 Iowa 405, 291 N. W. 852 (1940) ; Grotton v. Glidden, 84 Me. 589, 24 Atl. 1008 (1892); Morris v. Miller, 83 Neb. 218, 119 N.'W. 458 (1909); Lewis v. Fountain, 168 N. C. 277, 84 S. E. 278 (1915); Colby v. McClendon, 85 Okla. 293, 206,Pac. 207 (1922) ; Wiley v. Carpenter, 64 Vt. 212, 23 Atl. 630 (1892) ; Strawn v. Ingram, 118 W. Va. 603, 191 S. E. 401 (1937) ; Notes, 6 A. L. R. 388 (1920), 30 A. L. R. 199 (1924), 47 A. L. R. 1092 (1927). 4. 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 dif- ferent. 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 justifi-. cation. 1 COOLEY, TORTS 327 (4th ed. 1932). See also POLLOCx, ToRTs 159-164 (12th ed. 1923); PROSSER, TORTS 123 (1941). It has been held however, that consent to mutual combat will prevent the allowance of punitive damages. Grotton v. Glidden, 84 Me. 589, 24 Atl. 1008 (1892); Morris v. Miller, 83 Neb. 218, 119 N. W. 458 (1909); Strawn'v. Ingram, 118 W. Va. 603, 191 S. E. 401 (1937); Shay v. Thompson, 59 Wis. 540, 18 N. W. 473 (1884). Where both parties suffer injuries the procedure in some states allows the defendant to offset his claim against that of the plaintiff. Brown v. Patterson, 214 Ala. 351, 108 So. 16 (1926); cf. Pelton v. Powell, 96 Wis. 473, 71 N. W. 887 (1897). For criticism of the majority rule see Bohlen, Consent as Affecting Civil Liability for Breaches of the Peace, 24 COL. L. REV. 819 (1924) ; 73 U. OF PA. L. REv. 74 (1924) ; 3 RocKY MT. L. REv. 285 (1931); 22 MINN. L. REv. 546 (1938) ; 17 VA. L. REv. 374 (1931). 301

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most