Lopez v. Surchia

WHITE, P. J.

Plaintiff, a minor, brought an action through his guardian

ad litem

to recover damages for personal injuries resulting from an assault by the defendant. The defense to the action was that the assault was committed by defendant in defense of himself, his son, and his home. The trial court, hearing the cause without a jury, gave judgment for the plaintiff for $2,500 damages, from which judgment defendant appeals.

The plaintiff testified that at the time of the incident he was 18 years of age; that he, Robert Ramus and Joe Garcia were looking for Ramus’ “girl friend” and parked their automobile in front of the premises of defendant where the assault took place. Plaintiff and Garcia proceeded up the street about three-quarters of a block from where the car was parked, Ramus remaining in the car. Returning to the car, they observed Ramus fighting with another man on the front lawn of the defendant’s property; that the defendant came out of his house with a gun in his hand and fired two shots, one of them striking the plaintiff. The plain

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tiff testified that he took no part in the fight and at no time entered on the defendant’s property. The testimony of Joe Garcia, called as a witness on behalf of plaintiff, was substantially the same as that of the plaintiff. On examination by the court he stated that the plaintiff was 5 or 6 feet from the two boys who were fighting.

The defendant, Joseph Surchia, testified that he, his wife and his son were in the kitchen when there was a knock at the door. He went to the door and saw a young man (Ramus) who said he was looking for “Jessie,” and defendant told him he had the wrong place; that Ramus said, “No, they tell me she is here, I am coming in if I have to come in by force”; that Ramus then forced his way into the front room of the house, breaking the screen door hook. That upon Ramus’ refusal to leave, defendant’s son tried to eject Ramus by force, and the two of them fought in the front room, out the front door and into the front yard; that plaintiff and Garcia took sides with Ramus in the fight; that all of them were beating his son; that he yelled at them to stop but they would not do so; that defendant had a broken arm and could not defend himself; “I went and got my gun and I went out there and I was yelling and I said, ‘Leave my boy alone, ’ I had the gun. I just intended to scare those boys and I don’t know how it happened, but the first thing I saw the gun went off and I heard the scream and they all ran.” He further testified that the plaintiff was “pounding my boy from the back.” The defendant introduced in evidence a written report which he made to the police department, in which he stated in part: “I shot to protect my son, who was fighting with a Mexican boy. Then another came running up just as I shot and I guess I hit him. I only fired one shot. ...”