Volkering v. Allen

DORAN, J.

This is an appeal from a judgment in an assault and battery action, awarding respondent compensatory damages in the sum of $5,000, and exemplary damages of $1,000. . The appellant complains that the trial judge committed error in refusing to grant a continuance, in giving certain jury instructions, and on the ground that the award of damages is excessive.

The record discloses that the plaintiff, defendant, and another couple, had been dining, drinking and dancing at the Paris Inn from about 9:30 p. m. until about 12 or 12:30 a. m. on November 8, 1947. The party then proceeded to a parking lot preparatory to returning home, where the appellant “started to get fast or fresh” with the respondent. When

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the respondent attempted to get out of the car to escape appellant’s advances, the latter “picked up the (respondent’s) bag and started beating on me with it ... on the head and back. ’ ’

After beating Miss Volkering with the handbag Allen “threw my bag and it landed on the pavement but it hit me . . . back of the ear.” Respondent then “ran to call Mary and she was opening the door (of the other car) and I went to get in the car and at that time Mr. Allen (appellant) grabbed me from behind and pushed me forward and as I fell into the car I broke my arm. ’ ’ Sam Richardson, driver of the other ear then “started around and started punching” at appellant and the latter “stepped into his car and drove away.” According to the respondent’s testimony, appellant subsequently “said he was very sorry that it happened to me and to not worry about anything because he would take care of my bills, ’ ’ but that appellant never paid any of the expenses.

In respect to appellant’s intoxication at the time of the assault, Allen testified, “I paid for about six or eight rounds (of whiskey and mixed drinks).” Both Miss Volkering and Mary Van Skuyk gave testimony that “every time drinks were ordered Mr. Allen would drink mine and Mr. Richardson’s and Mary’s”; that appellant “drank practically all that came to the table,” and that “he was pretty drunk”; that the other three were all sober. Appellant denied being intoxicated and testified that respondent and Mr. Richardson were “trying to rob me,” whereupon appellant gave Miss Volkering a push and “she fell backwards into the automobile. ’ ’