Turner v. Whittel

THE COURT.

An action to recover damages for personal injuries. Plaintiff alleged that she was assaulted and beaten by individuals in the employ of defendant Whittel, who was present and maliciously incited and abetted the acts complained of. A jury returned a verdict in plaintiff’s favor for $5,063. Upon a motion for a new trial the judgment was, with plaintiff’s consent, reduced to $3,000, whereupon the motion was denied.

Defendant, who has appealed from the judgment, contends that the evidence was insufficient to support the ver

[587]

diet;

that the damages assessed were excessive and appear to have been awarded under the influence of passion and prejudice.

The alleged assault occurred on May 4, 1930, in an apartment in San Francisco. Several persons were present. One witness, Mrs. Jenkins, testified that she was in possession of the apartment and that the others, including the defendant, were her guests. Among these were a piano player and singer. Plaintiff testified that the defendant told her that the apartment was his, and that Mrs. Jenkins, the singer and the piano player were in his employ. Plaintiff further testified that she herself was employed by the defendant on May 3, 1930, as a hostess and his companion; further, that he paid her $50 in cash, and later she received a check for the same amount signed by the witness Jenkins, who had been told by defendant in plaintiff’s presence to send it. According to the plaintiff she remained in the apartment for the better part of two days, the defendant and the witness Jenkins being also present. A number of persons came and went during that time, and it appears that the entertainers mentioned remained for the greater portion of the time. It is clear from all the testimony that intoxicating liquors were served freely, and that plaintiff with the others imbibed to some extent. Plaintiff testified that during the evening of May 4, 1930, Mrs. Jenkins assaulted the piano player and the singer with a whip, the defendant bejng present, following which she struck the plaintiff severafi%lows; that these assaults were incited by the defendant, his statement with respect to the plaintiff being that he wanted her to ‘‘show fear”. His demeanor at the time, according to the plaintiff, was, as she described it, that of one “in a delirium” who apparently took pleasure in witnessing the occurrence. Plaintiff gained possession of the whip and threw it beyond Mrs. Jenkins’ reach, whereupon the defendant ordered the singer to recover it, which she did, and Mrs. Jenkins again struck the plaintiff several blows, and defendant encouraged Mrs. Jenkins to continue the assault. Plaintiff again obtained possession of the whip, and the singer, being ordered to do so by the defendant, forcibly took it from her and in so doing injured plaintiff’s arm and back. A physician who was called shortly thereafter testified that plaintiff sustained a wrenched shoulder and sprained liga