
    WHITE v. WHITTAL.
    Assault and Battery — Evidence—Appeal.
    The Supreme Court declined to disturb a judgment for the defendant in an action to recover damages for injuries received in a street fight, the jury having found, upon competent evidence, that plaintiff was the assaulter, or was at least a willing participant in the affray.
    Error to Kent; Grove, J.
    Submitted June 11, 1897.
    Decided June 28, 1897.
    Case by Edward White against Thomas Whittal for assault and battery. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    
      C. O. Smedley (Benn M. Corwin, of counsel), for appellant.
    
      McKnigM & McAllister, for appellee.
   Grant, J.

Plaintiff and defendant had a disgraceful fight in the public highway, in the presence of their own children and neighbors, on their way home from a school meeting. The language used was also disgraceful. Each charged the other with commencing the assault, and introduced testimony tending to sustain the charge. There is also testimony tending to show that the fight was mutual, each being “eager for the fray.” Plaintiff was worsted in the fight. He entered a criminal prosecution for assault and battery against defendant, who was acquitted upon the trial. He then brought this action for damages, and the jury again found against him, either upon the theory that he was the assaulter or that the fight was voluntary. The court fully explained to the jury the claim of each party and the correct rules of law governing the case. A discussion of the points raised would be of no benefit to any one.

We find no error, and the judgment is affirmed.

Long, C. J., Montgomery and Moore, JJ., concurred. Hooker, J., did not sit.  