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In an ordinary assault and battery in the common course of things, consent precludes a right of action for injuries received.
This is an action for damages alleged to be the result of an assault and battery. The complaint, in substance, alleged that respondent assaulted appellant by grabbing and pressing her throat and neck with his hands, and by grabbing and taking hold of her left wrist, and pressing her wrist watch into the flesh, and by grabbing and twisting her right hand, and by tearing her clothes from her person, by all of which she was hurt, wounded, and bruised, and caused physical suffering, etc. All these allegations are denied in the answer. The alleged assault occurred in a room occupied by the appellant, at which respondent, who is a dentist by profession, had called. Appellant's testimony tended to establish the allegations of the complaint. Respondent contradicted her testimony in this regard, and testified that he merely kissed her with her consent. He also stated that he sought to kiss her good-bye, at which she demurred and he desisted. The verdict of the jury was in favor of respondent, and from the order denying a motion for a new trial, appellant brings this appeal.
In an ordinary civil assault and battery, does consent preclude a right of action for injuries received?
The court affirmed the trial court's decision because in an ordinary civil assault and battery, consent precluded a right of action for injuries received. The court reasoned that consent was not a defense in a criminal assault and battery action because a breach of peace is a wrong against the public. However, unless a beating was in excess of the consent in a civil action, consent was a defense because neither party could complain to that which was consented to. Moreover, the respondent was not required to affirmatively plead consent as a justification because lack of consent was an essential element of the cause of action, and the charged acts were denied in the acquaintance's answer. Finally, the trial court 's ruling, sustaining an objection to a question relating to the respondent’s intoxication, if an error, was cured by subsequent witness testimony.