
    [No. 6738.
    Decided June 20, 1907.]
    George W. Milam, Respondent, v. George A. Milam, Appellant.
      
    
    Assault — Civil Liability — Actions—Damages. A judgment for $250, for damages received in a fight which either of the .parties could have avoided, is proper, where the plaintiff’s biting of the defendant was unjustifiable, and entailed a loss of $50 for medical attendance and three months loss of time, worth $50 per month.
    Appeal from a judgment of the superior court for Adams county, Warren, J., entered January 16, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for damages.
    Affirmed.
    
      Zent <Sf Lovell, for appellant.
    
      Lucius G. Nash, for respondent.
    
      
      Reported in 90 Pac. 595.
    
   Root, J.

Respondent brought this action to recover damages against appellant for injuries sustained in a personal1 encounter with the latter. From a judgment for $250 in favor of plaintiff, this appeal is taken.

The facts were about these: Respondent visited appellant’s farm relative to some business matter, and was told by the latter to go away as he wanted nothing more to do with him, charging him with having sworn falsely in a recent lawsuit. After calling each other certain vile names, appellant told respondent to get off his horse, which he was then riding, and he — appellant—would “give him what he needed.” Respondent dismounted from his horse and, in a few moments, they were engaged in a fight. In their struggle they fell to the ground, and appellant in some manner seized a portion of respondent’s hand in his mouth, biting off a knuckle and breaking the bones of one finger. They were soon separated by a neighbor who appeared upon the scene. Respondent claims that appellant’s wife and mother assisted his opponent in the contest, and the mother was made a party defendant. The action as to her, however, was dismissed by the trial judge. The case was tried before .the judge without a jury, the latter having been waived by the parties. The evidence showed that appellant paid $50 for medical services on account of his injuries, and lost three months’ time, being capable, but for the injuries, of earning $50 a month. The trial court found that the biting of respondent by appellant was unjustifiable and that, under all the circumstances, judgment should go for plaintiff in the sum above mentioned. We think the trial judge’s disposition of the case was substantially right. Either of these parties could readily have avoided this difficulty. In the conflict each received some beating, but the biting of respondent was cruel and unjustifiable. The trial court allowed him a little more than his actual expenses and the value of lost time. We see no reason for disturbing the judgment. It is therefore affirmed.

Hadley, C. J., Fullerton, Rudkin, Mount, Crow, and Dunbar, JJ., concur.  