McNeil v. Mullin

79 P. 168, 70 Kan. 634, 1905 Kan. LEXIS 21



Consent to an assault is no justification.


The plaintiff sued the defendant for damages resulting from injuries inflicted in a fight and the defendant claimed justification. The plaintiff said the defendant approached him in a threatening attitude, and that as soon as they were near enough they clinched and fell. Other testimony was to the effect that they clinched before any blow was struck. The defendant said the plaintiff struck him as soon as he could be reached, thereby delivering the technical "first blow" of the altercation, and his testimony was corroborated in this respect.


Can someone recover damages for a fight that was consented to by both parties?




The judgment of the district court is reversed, and the cause is remanded for a new trial. Because it was a criminal enterprise his consent to participate in the melee does not deprive either party of his civil remedy against the other, and each is entitled to recover from the other all damages resulting from the injuries he received in the fight. Even the fight was consented to by both parties as determined by their actions, there can still be a civil remedy for it.

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