Evans v. Waite

53 N.W. 445, 83 Wis. 286, 1892 Wisc. LEXIS 206

• Court: Wisconsin Supreme Court
• Decided: October 25, 1892
• Status: Published

Opinion

Lyon, C. J.

In Shay v. Thompson, 59 Wis. 540, it was held that if two persons, by mutual consent, in anger fight together, each is liable to the other for actual damages. The fighting being unlawful, the consent of either party is no bar to the action. The authorities upon which the decision is based, are cited in the opinion. The rule of that case applies here. It was unlawful for the defendant to be armed with a revolver when the plaintiff was injured, and hence he is liable for any injury inflicted by him with such weapon. It is immaterial that the plaintiff was consenting to the defendant being so armed and to his use of the revolver. Such is the rule of Shay v. Thompson, 59 Wis. 540. The only effect of such consent was to confine the recovery to compensatory damages, and it was so restricted.

The question of negligence is also immaterial. True, the complaint charges that the defendant was negligent, but it also contains a sufficient statement of a cause of action based upon the fact that the defendant was unlawfully armed with the revolver With which he wounded the plaintiff. Were there any defect in the complaint in that view of the case, it was amendable, for the whole transantion was fully proved on the trial without objection. This brings the case within the rule which allows the pleading to be amended to correspond with the proofs, or permits a variance between the pleadings and proofs to be disregarded. We fail to find any error disclosed in the record.

By the Court.— The judgment of the circuit court is affirmed.