Bergevin v. Morger

PEEK, J.

This is an appeal by defendant from a judgment in favor of plaintiff and from the order denying his motion for a new trial. By his complaint, plaintiff alleged that the defendant “wrongfully, unlawfully and violently assaulted” him; that the defendant struck plaintiff, knocking him to the ground, and that while in that position the defendant struck and beat him causing serious injury. He prayed for general damages and special damages for his loss of time from work. The defendant, by his answer, denied the assault and affirmatively alleged that any force used by him was in necessary self defense. At the conclusion of the trial, the jury returned a verdict in favor of plaintiff, assessing compensatory damages in the sum of $2,000 and exemplary damages in the sum of $3,000.

The evidence appears to be somewhat in conflict; that is, plaintiff testified that his injuries were received solely by virtue of his alleged beating at the hands of the defendant,

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whereas the defendant testified that plaintiff’s injuries, if any, were suffered by him when he ran into an olive tree. Specifically the evidence, viewed as it must be in the light most favorable to the judgment, shows that on the afternoon of the alleged assault, plaintiff and one Fernandes, his employee, were filling a water trough located on property then occupied by plaintiff in Madera County. They noticed the defendant walking toward them from a pump located approximately 300 yards distant. Defendant asked plaintiff for the keys in order to shut off the pump, and when the request was refused, defendant became angry and made derogatory remarks concerning Fernandes. Not wanting to argue with defendant, plaintiff started to walk away, but upon hearing his dog growl, he turned, and just as he did so defendant kicked him, knocking him to the ground. Plaintiff ordered Fernandes to call the sheriff’s office and was about to turn his dog loose, but desisted when defendant threatened to shoot the dog. Plaintiff, being nauseated, remained on the ground where he had fallen. Defendant started toward his car but returned and kicked plaintiff three times. Plaintiff remembers nothing thereafter until he regained consciousness in a hospital. Fernandes, when called as a witness by plaintiff, substantially corroborated plaintiff’s version of the altercation. A second witness, Mrs. Rasmussen, testified to being summoned by Fernandes and going to the premises where she found plaintiff face down on the ground, nauseated and in obvious pain. With the aid of Fernandes she carried plaintiff to her car and drove him to the hospital. Plaintiff additionally testified that he had had a recent rectal operation, which fact was known to defendant. The diagnosis of plaintiff’s injuries contained in hospitál records which were introduced into evidence, disclosed contusion to the kidney, rectum, testes and coccyx.