
    Shaul v. Norman.
    1. Where issue is joined, in an action to recover damages for an assault and battery, as to the guilt of the defendant, and whether or not the injury to the plaintiff was occasioned by his own fault in first assaulting the-defendant, and the jury by their verdict “ do find and say that the plaintiff is entitled to nine hundred and ninety dollars, damages in the » above case,” such verdict is substantially a finding of the issue in favor of the plaintiff.
    2. In such action it is not necessary for the plaintiff to prove the assault. and battery beyond a reasonable! doubt. Lyon v. Fleahmann, ante, 151,. followed.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Champaign county.
    Norman prosecuted an action in the Court of Common Pleas of Champaign county, against Shaul, for an assault and battery. The answer contains, first, a denial; and,, secondly, a statement that the injury to Norman was occasioned by his own misconduct in first assaulting the defendant below. The plaintiff by reply denied the allegations of answer No. 2. Evidence having been given tending to prove the allegations in the answer as well as those-in the petition, Shaul, by his counsel, asked the court to> charge the jury, that in order to entitle Norman, to recover,, he must prove beyond a reasonable doubt that the defendant did unlawfully assault and beat him. The court refused so to charge, and the defendant below excepted. The verdict of the jury, signed by the foreman, was, after stating the title of the case, as follows: “ We, the jury in this case, do find and say that the plaintiff is entitled to-nine hundred and ninety dollars, damages in the above case.” A motion for a new trial was overruled, and judgment was entered on the verdict. In the district court,, where the error in the charge and the supposed defect in. the verdict were relied on, the judgment was affirmed;. .and leave is asked, on the same grounds, to file a petition in error in this court.
    
      War nock $ Eiehelberger, for plaintiff in error.
    
      J. K. Mower, for defendant in error.
   Okey, J.

There was no error in the refusal to charge. Perhaps the issue did not necessarily involve the question whether a crime had been committed, but that is immaterial; for, while in the criminal prosecution it would be necessary to prove an unlawful assault and battery beyond a reasonable doubt (Fuller v. The State, 12 Ohio St. 433), I have found no case in which it was even claimed that the ■same rule applied in the civil action. The request to charge was doubtless based on the general language in Strader v. Mullane, 17 Ohio St. 624. The difference between this case and Lyon v. Fleahmann, a,nte, 151, is that here the •criminal offense and the right of civil action exist, not by statute merely, but at common law; yet, as to the question here involved, they ai’e in principle the same. In Elliott v. Van Buren, 33 Mich. 49 (1875), the action was for an assault and battery with intent to ravish; but the court held it was not necessary to prove .the charge otherwise than by .a preppnderance of evidence, and so we hold here.

2. The verdict was, substantially, a finding of the issues in favor of the plaintiff. Markward v. Doriat, 21 Ohio St. 637.

Motion overruled.  