Boyajian v. Balian

CRAIL, J.

This is an appeal from a judgment in favor of the plaintiffs in an action for damages for assault and battery and for exemplary damages. The plaintiffs had

[176]

called at the apartment of the defendants and while there the defendants ordered the plaintiffs to leave the premises. They left the apartment and had reached as far as the landing outside (assuming as true the evidence of the plaintiffs) when they were attacked by the defendants and badly beaten up from the fists of the defendants.

It is the first contention of the defendants that the plaintiffs are barred from recovering a judgment against the defendants because plaintiffs were trespassers for the reason that the plaintiffs refused to leave on being requested so to do, and that thereupon the defendants evicted them, using no more force than necessary to accomplish their purpose. It is our duty upon appeal, of course, to view the evidence in the light most favorable to the successful party in the trial court. Viewing the evidence in this light, the plaintiffs were not trespassers. The plaintiffs, on being requested to leave, proceeded to do so and were beaten while in the act of leaving, and finally, the force used by the defendants was more than reasonably necessaiy to remove the plaintiffs from the premises. The least that can be said is that there was a substantial conflict in the evidence on each of the above points which the jury resolved in favor of the plaintiffs.

The defendants’ second contention is that there is no evidence whatsoever to justify a judgment against the defendant Sarah Balian. On the contrary, it is shown that she rushed down and got the other defendants, her brothers, to come to the scene of the action, and that during the assault and battery she directed the other defendants in a foreign language, and that in a feminine way she aided and abetted in the assault.

Defendants next contend that the court erred in giving an instruction with reference to exemplary damages. The complaint contained an allegation that by reason of the foregoing assault and battery the plaintiffs were entitled to exemplary damages. The case was tried in the superior court upon the theory that such damages were in issue. The plaintiffs say in their brief and it is undenied that the defendants submitted instructions based upon such an issue. Under the circumstances the defendants cannot be heard on appeal to say that the pleadings were not sufficient to warrant such an instruction.