
    (65 South. 549)
    No. 20150.
    HINGLE et ux. v. MYERS.
    (June 8, 1914.)
    
      (Syllabus by Editorial Staff.)
    
    Assault and Battery (§ 13*) — Civil Action —Right to Recover Damages.
    Damages were not recoverable for injuries to IL, a young man nearly 20 years old, from his skull being fractured by a blow delivered with an ax handle by M., proprietor of a store in which was located a post office of which M. was postmaster, where the blow was delivered by M. to ward off an assault by H., who was intoxicated, abusive, and disorderly, and had been ordered by M. to leave the store; there being no right of recovery for an assault on one who is himself in the wrong.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 28; Dec. Dig. § 13.*]
    Appeal from Twenty-Ninth Judicial District Court, Parish of Plaquemines; R. E. Hingle, Judge.
    Action by Walter Hingle and wife against Graham Myers. From judgment for plaintiffs, defendant appeals.
    Reversed and dismissed.
    James Wilkinson, of New Orleans, for appellant. Oliver S. Livaudais, of New Orleans, for appellees.
   PROYOSTY, J.

The defendant fractured the skull of the son of the plaintiffs, a young man 20 years old, lacking three months, by a blow with an ax handle; and this suit is brought in damages.

Plaintiffs’ son is shown to have been of a quarrelsome disposition, especially when drinking. He and a number of others were at defendant’s store, on the government reservation, at Berwood, in the parish of Plaque-mines. This store is the only one on the reservation, and is also the post office; and defendant is the postmaster. It was about dusk, and the time for the mail to arrive. The day was Christmas, and defendant’s store had been closed during the day, and had just been reopened by him, and he was busy serving customers. All the more so from the fact that his clerk was absent and he was alone to attend to all the customers. Young Hingle was drunk; boisterously so, says one witness; mad-drunk, says another. He got into a quarrel with one Morgan, a cousin of his, and was creating a disturbance by wanting to fight Morgan and applying to him in a loud voice the coarsest and vilest epithets. Defendant told them to go outside if they wanted to fight; and, at the urgency of the bystanders, they did so. Morgan, however, declined to fight, giving as his reason that he was an overmatch for the young man, who, besides, was his relative. Hingle continued to use the most outrageous language, proclaiming at the same time that he had a knife and would rip Morgan open. 'Morgan left him and went home; whereupon, he (Iiingle) went back into the store, keeping up his same strain, of curses and obscene language. Defendant told him to leave the store. He, instead of doing so, offered to fight defendant. Defendant thereupon came from behind the counter, with an ax handle in his hand, intending to compel the young man to leave the store. As he approached, the young man said, “Well, if you are going to fight me, * * * ” and, so saying, was in the act of pulling off his coat to assault defendant, when defendant struck him on the head. Defendant is shown to have been a peaceable man, and not of disproportionate strength with the young man. The grand jury investigated the case, and found no ground for prosecution.

The jury brought in a verdict against defendant for $500, while at the same time finding him not guilty. We shall concur in the latter part only of this peculiar verdict.

By being drunk in this store and disturbing its good order by his outrageous conduct and refusing to desist when so requested, the young man put himself in the wrong, and, in large measure, brought on the consequences ; and one who is himself in. the wrong cannot recover, nor any one for him. Vernon v. Bankston, 28 La. Ann. 710; Bankston v. Folks, 38 La. Ann. 267; Burt v. Casey, 107 La. 231, 31 South. 667.

The judgment appealed from is set aside, aud the suit of plaintiffs is dismissed at their cost in both courts.

O’NIELL, J., takes no part.  