Clearly if a plaintiff has consented to being struck by another in the course of a brawl, his right to the control of his person and to determine by whom and how it shall be touched has not been invaded. And it is equally clear that if he has so expressed his consent to the blow that, were he not party to a breach of the peace, his assent would be an operative consent and so bar his liability, he is profiting by the illegality of his conduct if because he is party to the breach of the peace he gains a right of action, which but for his criminal joinder therein he would not have had.
Petitioner was the administrator of decedent's estate. Decedent died from a fatal blow inflicted by respondent during a prizefight. Petitioner sued for wrongful death. In the complaint there are no facts showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force. The trial court dismissed the action. On appeal, the court affirmed dismissal.
Can an action be maintained for wrongful death when the encounter, though unlawful, was entered into with the consent of both parties?
The court held that a party who engaged in prize fighting, which was prohibited by law, could not sustain an action to recover damages for injuries that resulted from the fight that he expressly consented to. In this case, the decedent had consented to and participated in the fight. Further, petitioner had no greater rights to recovery for the injuries sustained by the decedent than the decedent would have had he lived to bring the action himself. Therefore, the court affirmed dismissal of petitioner's case.