dissenting. I am unable to concur in the decision of the majority of the court in this ease. The policy of accident insurance provided that it did not cover any case “when the accident or disability results wholly or partly, directly or indirectly, from voluntary exposure to unnecessary danger.” The evidence showed that there had been some discussion about a boy with a cart on the sidewalk in front of the door of the insured. Shortly after this one Zuber came upon the porch, and inquired what the insured was going to do about the groceries he destroyed, to which the insured replied that he was not going to do anything, but offered to explain if Zuber would come in. Zuber said: “I am not coming in; if there is any law in the land, I am going to make you pay for those groceries, because you are the dirtiest rascal in all Oakhurst.” Zuber then started down the steps, and the insured called to him to wait a minute, and followed him about twenty-five feet, carrying a pistol with him. Zuber was walking pretty fast until then, when he stopped. The insured walked up to him and slapped or struck him. A fight ensued, during the progress of which the insured had a pistol and Zuber had a heavy stick or piece of scantling about two by four inches in size. There was evidence introduced by the plaintiff tending to show that the insured retreated and Zuber followed, and as Zuber reached to get the heavy stick or piece of scant-ling, the insured began firing at him with the pistol which he had carried with him, that Zuber struck at the insured with the scant-ling, knocking him down, and continuing to strike him until death ensued. On behalf of the defendant there was some testimony tending to show, that, when the insured went up to Zuber, he called the latter a “low-lived scoundrel,” that Zuber replied in kind, and that the insured stooped, and, rising, made a lunge at Zuber, and got his hands around Zuber’s throat, knocking him backwards; whereupon they clinched and struggled out into the street. The question is whether, under the facts, it can be held that the insurance company was liable under the provision of the portion of the policy in regard to accident insurance which contained a clause exempting it from liability for an accident which “results wholly or partly, directly or indirectly, from voluntary exposure to unnecessary danger?”
*341After using the offensive language, Zuber had started to leave, walking rapidly. The insured, carrying a pistol, pursued him, caused him to stop by calling to him, overtook him, and struck or slapped him. Surely it can not be said that this conduct was involuntary, or was necessary, within the meaning of the contract of accident insurance. Nor can it be said that what transpired during the progress of the fight thus brought on did not wholly or partially, directly or indirectly, result from the danger thus voluntarily incurred.
In Gresham v. Equitable Accident Insurance Co., 87 Ga. 497, the clause of the policy under consideration excepted from the risk death or injury caused by fighting. In the opinion Mr. Chief Justice Bleckley said: “Nor is it material that it [the homicide] was not down on the bill, but was wholly unexpected by one or both of the actors. Barely, if ever, can the incidents or the result of a personal encounter be foreseen. A deadly weapon may make its appearance at the last moment, and a homicide be the result, although the fight intended and begun was one with ‘fist and skull’ only. To fight at all is dangerous. When the combative passions are aroused and get a taste of gratification, what momentum they will acquire, and to what extremes it will carry them in their lust for more, is always uncertain.” And again: “With or without malice, in the technical sense of criminal law, the homicide was caused by the fight, as causation is understood and regarded in the law of contracts. The fight occasioned it, for the fight produced the shooting as a direct and immediate consequence. Who can doubt that the shooting grew out of the fight—sprang from it directly and immediately ? Had there been no fight, there would have been no shooting and no killing.”
In Supreme Lodge Knights of Pythias v. Crenshaw, 129 Ga. 195 (58 S. E. 628, 13 L. R. A. (N. S.) 258, 121 Am. St. R. 216, 12 Ann. Cas. 307), the clause of the policy of insurance under consideration was, that “if death is caused or superinduced at the hands of justice, or in violation of or attempt to violate any criminal law,” the insurer would not be liable for the full amount of the policy. It was held that the fact that the insured was slain by a husband, either while he was attempting to have sexual intercourse with the wife of the latter, or immediately after the act of sexual intercourse was completed, did not free the insurance com*342pany under the clause quoted. In discussing the case and referring to the case of Gresham v. Equitable Accident Ins. Co., supra, Presiding Justice Cobb said: “Fighting is an act which, in its nature and essence, is calculated to bring on injury or death. Fighting under any circumstances may be attended with disastrous consequences.”
If the insured in the ease at bar had not voluntarily entered into the conflict, but had simply resisted an attack upon himself which he had not brought on, or had merely defended his person or property, the case might be different. But, under the evidence, the insured did act voluntarily in following Zuber with a pistol, striking him, and thus entering into a fight with him. While the voluntary assumption of a risk involves a conscious assumption, this does not mean that the person who' assumes the risk of the fight must anticipate exactly the consequences which result from it. In order to prevent liability on the part of the insurance company under the clause above quoted, the insured did not have to anticipate whether he would have an eye put out, or a limb broken, or be killed; and if he guessed that one of these things would happen, and another actually happened, his mistaken anticipation would not render the company liable. When he followed Zuber with .a pistol, struck him, and entered into a fight with him, and in the course of the fight was killed, it can not be successfully contended that the company would be liable merely because he did not anticipate the exact nature and character of the injury which might result from the combat. Nor do I think that the testimony of the wife of the insured that he had a pistol in his pocket, and that he was a contractor and was in the habit of carrying a pistol on paydays, when his life was in danger, affects the question. He was armed, had a pistol in his pocket and went to a fight armed. That he may have thought his adversary in more danger than himself does not answer the condition of the contract. Under this clause of the policy the question is, not whether the insured may have been justified, or may have been guilty of a crime, but whether he voluntarily incurred an unnecessary danger from which death directly or indirectly resulted. Whether or not he was committing a crime is not the determining factor under the clause now being considered. Accordingly, the provision of the Penal Code (1910), § 103, that, on the trial of an indictment for an assault, or an assault and bat*343tery, the defendant may give in evidence any opprobrious words or abusive language used by the person assaulted or beaten, and that such words or language may or may not amount to a justification, according to the nature and extent of the battery, as the jury may determine, does not fix any test to determine whether a danger assumed in committing an assault and battery is voluntary and unnecessary within the meaning of the clause of the policy under discussion. Many things may not be criminal which would yet relieve the insurance company from liability. It is not unlawful for a person insured to walk under a dangerous scaffold, or beside a wall from which bricks are falling, but if he voluntarily and unnecessarily assumes the risk of doing so, he can not recover under a policy of this character. The question of malice and of justification of an assault, and the doctrine of reasonable doubt, all enter into the trial of a criminal ease. They play no part in determining whether an insured person voluntarily assumes an unnecessary risk, except in so far as all the circumstances may throw light upon the case. The fact that the law may not punish a man for a voluntary battery leading to a fight does not show that to engage in it is not dangerous. Authorities holding that injuries resulting from a fight may be classified as accidental do not throw light upon the application of a clause excepting certain risks, such as that under consideration.
I am authorized to state that Chief Justice Fish concurs in this dissent.