Simpson v. Wilmer

SPENCE, J.

Plaintiff sought damages for personal injuries which he claimed were sustained when defendants ejected him from a meeting of the Salvation Army on March 19, 1942. Following a trial by jury, judgment in the sum of $6,000 was entered in favor of plaintiff and against defendants. Defendants moved for a new trial and the trial court granted said motion “on the ground that damages allowed by the jury are excessive.” Plaintiff appeals from the order granting the new trial.

This action apparently represents but one phase of the general controversy between plaintiff and defendants arising out of the discharge of plaintiff from the Salvation Army in 1940. Plaintiff testified that he had not been gainfully employed since October, 1940, but had spent his time in pursuing his claimed rights against the Salvation Army. He further testified that “Continuously and almost as a daily occurrence since that time I have picketed the Salvation Army and its meetings and have displayed in public throughout the City and County of San Francisco various signs and placards concerning the'Salvation Army.”

Prior to March 19, 1942, plaintiff had' been requested by defendants to remain away from the meetings held in the hall from which he was ejected. When he appeared in the meeting hall that evening, he was requested by defendants to leave but he refused to do so. He was ejected by defendants from the meeting hall at about 7:45 p. m. He immediately went to a saloon where he had left a banner which he had used for the purpose of picketing and thereafter he picketed the meeting until it closed at about 10:30 or 11 p. m.

Plaintiff’s testimony was in conflict with that of all other witnesses regarding the manner in which plaintiff was ejected from the hall but it is undisputed that plaintiff was not harmed sufficiently to prevent him from picketing the meeting place for several hours. Plaintiff was not examined by a doctor until two days later and he has not sought or had any treatment at any time for his alleged injuries. There was no testimony concerning any special damages. The testimony offered by plaintiff showed that he had sustained certain bruises but the only consequential injury claimed was a

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hernia. The expert testimony was in direct conflict as to whether the hernia was caused by any act of defendants. Plaintiff testified that he had worn a truss since consulting the doctor two days after being ejected and that he had had no pain while wearing the truss. The undisputed evidence showed that the entire cost of repairing the hernia, whatever may have been its cause, would not have exceeded $300 and that plaintiff was in excellent physical condition to undergo the operation.