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District Court of Appeal, First District, Division 2, California.

HUDSON et al. v. CRAFT et al.

Civ. 13513.

Decided: July 15, 1948

Young, Ryan & Whitton and Albert K. Whitton, all of Oakland, for appellants. Applebaum & Mitchell and John Jewett Earle, all of Oakland, for respondent.

The appellant Guy C. Hudson, a minor 18 years of age, sued the respondents for $15,000 damages for personal injuries. His father sued in a separate count for the son's medical and surgical expenses. Respondents' demurrer to the complaint was sustained with leave to amend. Appellants declined to amend, and a judgment for costs was entered for respondents, from which this appeal was taken.

The complaint alleges that the respondent Craft Shows operated in Oakland a circus or carnival and in connection therewith a boxing and wrestling concession for which a separate admission fee was charged; that the concession was operated in violation of section 412 of the Penal Code, also of the provisions of the Business and Professions Code which require a license, and of the rules and regulations of the State Boxing Commission. It alleges that appellant Guy C. Hudson was solicited by respondents to participate in a taxing match and prize fight for a consideration to him of $5, that he did so and ‘was violently struck in and about the face and body’ and suffered a ‘broken jaw, concussion of the brain, numerous bruises and contusions about his face and body, and severe shock.’

There is nothing in the complaint indicating that there was any anger between the contestants of that they had ever met before they entered the ring; or that force was used in excess of that which is to be anticipated in such a contest, other than the conclusion that appellant was ‘violently struck.’

The complaint shows that appellant voluntarily engaged in the encounter, hence the demurrer raised the question whether one so engaging, with eyes open to the possibility of bodily injury, assents to the invasion of his right of security from bodily harm and assumes the risk of injury so as to bar his recovery therefor.

It is axiomatic that ‘He who consents to an act is not wronged by it.’ Civ.Code, sec. 3515. Whether this principle bars a recovery when the contest so assented to is conducted in violation of law, is the real question presented for decision.

Appellant's adversary was joined as a party defendant but was not served. The litigation, therefore, is between the injured contestant and the promoter of the contest. There is no similar case reported in this state, and apparently but one (where the promoter and not the contestant was sued) in the United States, namely, Teeters v. Frost, 145 Okl. 273, 292 P. 356, 357, 71 A.L.R. 179, and on that case the appellants chiefly rely.

There are two rules on this question. The majority rule permits a recovery for assault and battery by a participant in an illegal combat notwithstanding he has assented to engage therein. The minority rule denied a recovery—even though the contest violates the law—because the contestant has engaged in the combat voluntarily and has thereby assented to an invasion of his rights. For a comprehensive discussion of the subject see ‘Consent as Affecting Civil Liability for Breaches of the Peace’ written by Professor Francis H. Bohlen (later the Reporter of the Restatement of Torts) in 24 Columbia Law Review, 819; see, also, annotations in 6 A.L.R. 388; 30 A.L.R. 199, and 47 A.L.R. 1092. The Restatement adopts the minority rule.

In Teeters v. Frost, supra, the defendant Teeters operated a moving picture theatre and as an added attraction featured boxing contests on the stage. Such contests were illegal. Two young men, Forst and Boyer, were entered as contestants, and each was paid $1 by Teeters. As was said in the opinion, the contestants were ‘generally young men who were willing to do hard fighting for small pay.’ In the course of the fight Boyer delivered a blow or blows which resulted in Frost's death, and Frost's parents sued Teeters for $25,000. The jury awarded them $5,000 and on appeal the court followed the majority rule and affirmed the judgment.

Numerous points were presented on appeal, among them assumption of risk. With respect to that defense the court said in 292 P. at page 359: ‘The law * * * making the assumption of risk a defense in an action in tort applies only when there are contractual rights. It can scarcely be contended that one could contract against the teeth of a criminal statute or any statute prohibitory in its nature.’ In Sinclair Prairie Oil Co. v. Thornley, 10 Cir., 1942, 127 F.2d 128, 133, a tort action arising in Oklahoma, the court said: ‘It is doubtful if the doctrine of assumption of risk is applicable in this case. The defense of assumption of risk is not available in Oklahoma between parties not in a contractual relationship. Chicago, R. I. & P. R. Co. v. Rogers, 60 Okl. 249, 159 P. 1132; Teeters v. Frost, 145 Okl. 273, 282 P. 356, 71 A.L.R. 179.’ There is no such limitation on the application of the rule in California, hence the rejection of that defense in the Teeters case renders it no authority at all in this state on the question of assumed risk.

Next, the mainstay of the Teeters case on the question of assent was the case of McNeil v. Mullin, 1905, 70 Kan. 634, 79 P. 168, 170, the rule of which was discarded by the Kansas court 30 years later. The McNeil case reversed a judgment for defendant because the ‘consent to fight must be treated as utterly void’ the court following the majority rule and quoting Cooley on Torts, 2d Ed., 187, infra. The quotation in the Teeters case from McNeil v. Mullin embodies the majority rule as it appears in Cooley on Torts and in 2 R.C.L. 562 and 5 C.J. 630; 6 C.J.S., Assault and Battery, § 16. In Wood v. McKeever, 1935, 141 Kan. 323, 41 P.2d 989, 991, involving a shooting affray, the Supreme Court of Kansas said: ‘The case of McCulloch v. Goodrich, 105 Kan. 1, 181 P. 556, 6 A.L.R. 386, and earlier cases support the rule that persons consenting to and engaging in a mutual combat are liable reciprocally for injuries they may inflict on each other. Such was formerly the general rule of law, but present day legal opinion has largely discarded it. Restatement, Torts, § 60, comment and illustrations.’ (Emphasis added). The foregoing was conceded in the opinion to be unnecessary to the decision because the case was not one of mutual combat but, coming as it does from the same court that decided McNeil v. Mullin, it indicates that today Kansas would follow the Restatement. See Kansas Ann. to the Restatement of Torts, Journal of the Kansas Bar Assn., August 1935–May, 1936, pp. 181, 182. McCulloch v. Goodrich, supra, involved a fight in anger between two women and the court affirmed a judgment for the plaintiff who was injured, on the authority of McNeil v. Mullin. Hence when the Kansas court in Wood v. McKeever discards the rule of McCulloch v. Goodrich ‘and earlier cases' it takes in, necessarily the McNeil case. For these reasons Teeters v. Frost cannot be followed in this state with any degree of confidence as to its correctness.

Appellants claim that the majority rule was adopted by our Supreme Court in Churchill v. Baumann, 95 Cal. 541, 30 P. 770, 771. The court in that case cites the maxim volenti non fit injuria, and section 3515, Civil Code (‘He who consents to an act is not wronged by it’), and then quotes Cooley as follows: ‘Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to. A man cannot complain of a nuisance, the erection of which he concurred in or countenanced. He is not injured by a negligence which is partly chargeable to his own fault. * * * But in case of a breach of the peace it is different. The state is wronged by this, and forbids it on public grounds' (citing Cooley on Torts, 2d Ed., 187 inter alia). This is a fair statement of the majority rule, stress being laid therein on the interest of the state, as a third party. The Churchill case was an action for diversion of water, where the plaintiff had participated with the defendant in maintaining and repairing the dam which was included in the project. All the court decided was that the plaintiff had consented to what the defendant had done, and was therefore precluded from recovery. No breach of the peace was involved, and we agree with respondents' criticism that it is difficult to explain why that part of the quotation from Cooley dealing with a breach of the peace was included in the opinion. That case is in no respect comparable with this and no case at all similar to this has been cited by appellants where our Supreme Court has applied the majority rule.

This brings us to a consideration of the minority rule. The Restatement of Torts was not published definitively until 1934. Tentative drafts, however, were widely circulated while the compilation was in progress. Respondents rely on the case of Hart v. Geysel, 159 Wash. 632, 294 P. 570. That case was decided a couple of months after Teeters v. Frost, and (doubtless because of the short interval between the two decisions) does not mention the latter case where, it might be observed, the draft of the Restatement apparently was not brought to the court's attention.

Hart v. Geysel was an action brought by the administrator of a contestant killed in an unlawful prize fight, against the other contestant and other persons. The defendants' demurrers were sustained and a judgment of dismissal entered. In affirming the judgment the court discussed the majority and minority rules as they appeared in the tentative draft of the Restatement, and while declining to follow either rule, the result reached was said by the court to be supported by the draft of the Restatement, and it was. The reasons given in the American Law Institute's treatise for adopting the minority, as against the majority, rule, are to be found in that opinion at 294 P. at page 572. We believe Hart v. Geysel reached the correct result even though the court did not flatly declare itself as following the minority rule.

In 1934 the minority rule found its way into section 60 of the Restatement of the Law of Torts, reading as follows:

‘Assent to Invasion Constituting Crime. Except as stated in section 61, an assent which satisfies the rules stated in sections 50 to 59 prevents an invasion from being tortious and, therefore, actionable, although the invasion assented to constitutes a crime.’ The subjoined comment reads: ‘* * * The assent of the person whose interest is invaded does not affect the criminal character of the other's conduct although it does affect the tortious character thereof except as stated in section 61. Thus, while the actor may be subjected to punishment for the crime, he is not civilly liable to the person assenting to the criminal invasion.’

The subjoined illustration (which happens to epitomize this case) reads as follows: ‘1. A and B engage in a boxing match which is illegal because the required license has not been obtained. Each is guilty of a breach of the peace, but neither is liable to the other.’

Section 60 of the Restatement speaks of ‘an assent which satisfies the rules stated in sections 50 to 59.’ Those ten sections deal with various aspects of assent e. g. whether actual or apparent; by and to whom given; mistake as to harmful character, or as to authority; assent given under duress; assent by a person incapable of giving it. Section 53, dealing with ‘assent to Particular Invasion,’ reads as follows: ‘To constitute a consent, the assent must be to the invasion itself and not merely to the act which causes it.’ The following illustration is then given: ‘If two persons engage in a boxing match, neither of them assents to receiving any particular blow, since each hopes to avoid his adversary's blows by dodging, sidestepping or blocking. However, he does sufficiently express a willingness that the other shall try to hit him, and the expression of such willingness is a sufficient assent to those blows which he is unable to avoid, since while he may avoid some blows, he is substantially certain to receive others.’

Section 61, mentioned as an exception, does not destroy or weaken the bearing of section 60 on the present problem, for, as one of its illustrations shows, that section is designed for cases such as statutory rape where the law throws its protection around the female even though she assents. The other party in such case is held civilly liable. The appellants' argument that section 61 was designed to protect participants in unlicensed bouts is without merit.

The Restatement was compiled with great deliberation and only after careful and searching exploration of all the case law extant and of the treatises of eminent text writers and commentators. As we have seen, tentative drafts were widely circulated several years before the text assumed final form. There was every opportunity to compare and thresh out the divergent rules on any given topic, including, of course, the majority and minority rules under discussion in this very case. There was unlimited opportunity to analyze the views and texts of such recognized authorities as Judge Cooley, quoted above and relied on by appellants. With this wealth of material from all sources, the minority rule was finally selected and adopted, based, as it is, on two ‘first principles,’ (a) ‘that one who has sufficiently expressed his willingness to suffer a particular invasion has no right to complain * * *,’ and (b) ‘that no one shall profit by his own wrongdoing.’ See 294 P. at page 572. The majority rule is an exception to both of these principles while the minority rule is in consonance with them. Idem.

We are satisfied that the rule of the Restatement is the correct rule and the one which should be followed in this state in cases such as that now before the court.

That rule ‘prevents an invasion from being tortious and, therefore, actionable.’ Let it be conceded for the purposes of the discussion that the Craft Show was a party to the invasion because it induced it. If assent rules out the tortious character of the acts themselves, it would seem to follow that nobody identified with the invasion can be held liable whatever his or their criminal responsibility or moral culpability might be. In short, if appellants cannot maintain a tort action against the other contestant they cannot maintain one against the promoter.

The judgment is affirmed.

I dissent. The defendant and respondent for its own gain promoted unlicensed prize fights. It thus knowingly violated penal provisions of the law. Penal Code, sec. 412; Business and Professions Code, sec. 18780. The only question is whether in so doing it rendered itself civilly liable to a contestant who received physical injuries in such a fight. The majority opinion answers this question in the negative, sole reliance being placed on the minority rule of assumption of risk of injury by one voluntarily engaging in a fight or combat, which rule has been adopted by the Restatement of the Law of Torts.

The majority rule, which has an ancient history in our law, is well stated in Cooley on Torts, 4th Ed., p. 327:

‘Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to. * * *

‘But in case of a breach of the peace it is different. The state is wronged by this, and forbids it on public grounds. If men fight, the state will punish them. If one is injured, the law will not listen to an excuse based on a breach of the law. There are three parties here, one being the state, which, for its own good, does not suffer the others to deal on a basis of contract with the public peace. The rule of law is therefore clear and unquestionable, that consent to an assault is no justification.’

This accords with the overwhelming weight of authority. See cases collected in notes 5 and 6, 6 C.J.S., Assault and Battery, § 16, page 806; and in notes 31 and 32, 5 C.J. 630. We are asked to turn our backs on these authorities which admittedly far outnumber those expressing the minority rule. While I have the greatest respect for the Restatement I cannot in this instance follow it. I believe the rule of Cooley and the majority of our courts to be sound as a matter of basic public policy. The state has not only a normol but also a material interest in the wounding of its citizens. If they are disabled they and their families may become charges on the state, and the degree in which the state takes care of the wants of the disabled is progressing. I can see no reason why a promoter who knowingly flouts the law for selfish gain and wilfully induces minors and others, who may be physically unprepared, to engage in unlawful violent combat, which he must know may result in their physical injury, should escape civil liability. The only decided case on the precise question agrees with this view. Teeters v. Frost, 145 Okl. 273, 292 P. 356.

Even if we accept the minority rule it does not follow that the promoter must escape liability for injury to the contestants. His is the duty to procure the license, not theirs. The law is for their protection, not his. Particularly in view of the strong public policy involved it seems clear that the gullible or youthful contestants who could be induced to run the risk of serious physical injury for five dollars apiece are not in pari delicto with the promoter. Hedlund v. Sutter Medical Service Co., 51 Cal.App.2d 327, 332–334, 124 P.2d 878; 6 Cal.Jur. 157.

It is suggested that, by analogy to the cases holding that the driving of an automobile without a license does not render the unlicensed driver liable for injuries to a third person, the lack of a license here should not render the promoter liable to the injured contestant. The cases are not analogous; the true principle applicable here being stated in Turner v. Whittel, 2 Cal.App.2d 585, 589, 38 P.2d 835, 837:

‘It is the rule that not only the principal actor or actual assailant, but all others who aid, abet, counsel, or encourage the wrongdoer, are equally liable with him to the injured party.’

The judgment should be reversed.

GOODELL, Justice.

NOURSE, P. J., concurs.

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