Oppenheimer v. Deutchman

THE COURT.

Plaintiff appeals from an adverse judgment pursuant to verdict in an action brought by him for alleged assault and battery. The first amended complaint sought to include two other defendants in addition to Julius Deutchman. They were excluded by order of the trial court which was affirmed on a prior appeal of this case (104 Cal.App.2d 165 [230 P.2d 873]) leaving the defendant above named as the only person against whom relief was sought at the trial.

The question for determination by the jury was whether defendant on a date and at a place specified in the amended complaint “violently assaulted, beat and scratched the plaintiff, causing plaintiff to bleed profusely from cuts in and about the mouth, lips and gums, and the said defendant called plaintiff a vile, abusive and profane name.”

At the trial plaintiff was the only witness who testified concerning the alleged wrongful acts of defendant Julius Deutchman. He stated that at 2:10 p. m., on November 23, 1949, he went to the office of defendant to serve papers on him, that defendant called him an offensive name, struck him in the face and threw him out. Plaintiff left and went back to his office. His employer sent him to the office of the

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city attorney and pursuant to the latter’s suggestion, photographs were taken of plaintiff’s face. Later that afternoon plaintiff went to the receiving hospital, arriving there at 5:24 p. m. In the meantime he had received no medical attention. At the hospital the record shows: “Diagnosis: Abrasion, right lower lip. Excoriations, right side neck. Treatment: cleanse.”

The original complaint in this case was filed on December 12, 1949. Plaintiff and defendant both appeared at the office of the city attorney at 11 a. m. the next day, December 13, 1949. At that time plaintiff stated that defendant Julius Deutchman was not the man who had assaulted him. The office record of the city attorney discloses that plaintiff ‘ ‘ claims defendant is not, underlined three times, the person who committed assault and battery upon him.” The deputy city attorney testified, in response to a question by plaintiff, that at the city attorney’s office plaintiff “immediately stated that this prospective defendant was not the right man, that he was not the man who assaulted you.” Plaintiff testified at the trial that he told the deputy city attorney, at the latter’s office, that defendant Julius Deutchman who was then present in the room, was not the man who had assaulted him.