FLOWERS v. CAMPBELL he "threw the first punch." He also concedes both that the jury at his criminal trial necessarily found that his use of force was 725 P.2d 1295 (Or. Ct. App. 1986) not justified and that he is collaterally estopped from relitigating ROSSMAN, Judge. that issue. See Rosbak v. Leathers, 277 Or. 207, 560 P.2d 275 (1977). He contends, however, that the dispositive issue in this civil action is whether defendant responded to his own admitted Plaintiff brought this assault and battery action to recover dam- aggression with excessive force. He contends that that issue was ages for injuries allegedly sustained in a skirmish with defendant not litigated at his criminal trial. Campbell (defendant), who was, at the time, an employee of Under the doctrine of collateral estoppel, a party to an defendant Montgomery Ward & Company. Plaintiff alleges action may be prevented from relitigating issues that were actu- that defendant used excessive force to repel his own aggressive ally decided and necessary to the judgment in a previous action. behavior, for which plaintiff was convicted of assault in the fourth State Farm v. Century Home, 275 Or. 97, 550 P.2d 1185 (1976); degree and harassment. The trial court dismissed the action Babler v. Fletcher, 257 Or. 1, 474 P.2d 329 (1970). Plaintiff was after ruling, on defendant's motion for a directed verdict, that all convicted in the criminal action of assault and harassment. The material issues of fact were decided against plaintiff at his crimi- victim's use of more force than was justified to repel the attacker's nal trial and that he was precluded from relitigating those issues. criminal acts is not a defense to either of those crimes. It follows We reverse. that defendant's response to plaintiff's actions could not have been The violence erupted after plaintiff accused defendant an issue that was necessarily decided in plaintiff's criminal trial. of charging him $12.99 for a lock that had been advertised for Accordingly, because an aggressor may recover in an action for $9.97.' Plaintiff admits that he became involved in a verbal battery if he proves that the defendant used more force than was exchange with defendant immediately before the fight and that justified in repelling the aggression, Linkbart v. Savely, 190 Or. 484, 497, 227 P.2d 187 (1951), the trial court erred in holding 1. Plaintiff was 62 years old at fight time; defendant was 33. Plaintiff that plaintiff was precluded from litigating all issues "essential" to allegedly sustained a broken arm and a detached retina. Defendant's jaw was his recovery by reason of the judgment entered in his criminal trial. broken. Reversed and remanded