Forte v. Schiebe

SHINN, P. J.

This is an appeal by defendant from a judgment on verdict awarding plaintiff $3,250 compensatory and $3,000 exemplary damages for assault and battery.

Plaintiff and defendant are law enforcement officers. Plaintiff is Supervising Liquor Enforcement Officer, Alcoholic Beverage Control Act, Southern California; he had been a chief petty officer in the United States Navy for 20 years and an employe of the federal government in the days of prohibition. Defendant is a crier in the United States District Court, having previously been in the office of the United States Marshal. The parties had known each other since 1928. At the time of the events that led to the present litigation neither was engaged in the performance of official duties.

The parties lived opposite each other in San Pedro. For a

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long time they had been on unfriendly terms. Plaintiff testified that defendant had threatened him frequently, using toward him foul and insulting language and on several occasions had shoved him and poked him in the ribs with an elbow while they were leaving a Pacific Electric station. Defendant testified that plaintiff had threatened to kill him and his family, had thrown a rock through a window of a house of defendant’s relative, had come across the street on three occasions uttering threats and using bad language until he had been taken by the collar by his, plaintiff’s, wife and led back home. Each denied in toto all accusations of ungentlemanly conduct upon his part, claiming to have acted only defensively at all times. As we shall see, the trial produced some tall lying.

The undisputed facts of the alleged assault were that on a Sunday morning plaintiff was traversing an alley behind defendant’s residence; defendant was in the rear, in or near bis garage. Lucas, defendant’s brother-in-law, was in his own yard nearby. There was an altercation characterized by the use of foul language and a physical encounter in which plaintiff received injuries to his head. At this point agreement among the witnesses as to the progress of events ceased and the problem of the jurors in the realm of the credibility of witnesses commenced. Plaintiff testified that he was unarmed and was leading a Pomeranian on a leash; defendant ordered him out of the alley and without provocation struck him violently about the left cheek with a shovel. Defendant testified that plaintiff had telephoned him twice early that morning and threatened to come over and bash in defendant’s skull; Lucas was in the adjoining yard and called to him that plaintiff was coming; plaintiff entered the garage and struck him with a club; he shoved plaintiff out with his shoulder, plaintiff reentered the garage twice more and may have fallen against an incinerator in the scuffle. Lucas testified that plaintiff came running down the alley carrying a club and that he warned defendant; plaintiff entered the garage. Lucas did not testify whether he saw blows struck. A neighbor of defendant’s, Mrs. Blake, from her window saw Schiebe strike Forte with a shovel. Her testimony fully corroborated that of plaintiff. Another neighbor, Mrs. Hansen, a witness for defendant, testified she heard loud swearing, saw plaintiff enter defendant’s garage, but was concerned that her small son finish his breakfast and did not follow further developments. Plaintiff suffered substantial injuries.