Rogers v. Kabakoff

WHITE, J.

Plaintiff instituted this action to recover damages for assault and battery allegedly committed upon him by defendant. The cause was tried before the court sitting without a jury, resulting in a judgment for plaintiff in the sum of $1,500. Defendant appeals.

Narrating the evidence in a light most favorable to plaintiff who prevailed at the trial, the record discloses that defendant parked his automobile in plaintiff’s parking lot in such a way that it occupied portions of two different parking stalls, locked

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the vehicle and left it on the lot all day. Upon the lot plaintiff had posted a sign reading, “Locked cars 500.” When he returned for his automobile defendant handed plaintiff 25 cents for the parking fee, but because the vehicle was locked and was occupying parts of two stalls, plaintiff demanded a fee of $1.00. Defendant, thereupon, entered his automobile and inserted the key in the ignition. Reaching into the automobile, plaintiff removed the key from the ignition, whereupon defendant alighted from his vehicle, and according to plaintiff’s testimony “stood there for a moment—I guess we just looked at each other for a minute—and all at once he hit me. ’ ’ There was evidence that defendant struck plaintiff twice in the face, that after the first blow plaintiff “staggered a little bit,” and following the second blow, “went down backwards, clear to the cement.”

Plaintiff further testified that when he was knocked down “I was kind of out of my head and I jumped up and run around to the other side of the car to get something to protect myself, and after I came back, the man was gone. ’ ’

Defendant filed a cross-complaint for a statutory penalty of $50 for overcharge in violation of an order of the United States Office of Price Administration. Judgment thereon was for plaintiff and cross-defendant.

Plaintiff testified that as a result of the aforesaid altercation, his right cheekbone was fractured, that he was hospitalized for four days, underwent an operation to reduce the aforesaid fracture, and continued to suffer pain from time to time up to the date of trial. The trial court found that the foregoing injuries to plaintiff were occasioned “as a direct and proximate result of defendant’s wrongful, unlawful and malicious assault and beating” of plaintiff.