Sheward v. Magit

VALLÉE, J.

These are appeals from judgments in two actions. They were consolidated for trial below, tried by the court without a jury, are submitted here on one set of briefs, and will be determined in one opinion.

In 18215 Myron Sheward sued Harry Magit to recover dam

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ages for an alleged assault and battery. Judgment was rendered in his favor for $3,525 compensatory, and $1,000 exemplary, damages. Harry Magit appealed.

In 18216 Nathan Magit, son of Harry Magit, sued Myron Sheward to recover damages for an alleged assault and battery. Judgment was rendered in favor of Sheward. Nathan Magit appealed.

Viewed in the light most favorable to respondent, the facts are these.

Sheward and his family, including his son Terry, 8% years old, lived at 1017 North Croft Avenue, Los Angeles. Harry Magit and his family, including his sons Nathan, 11 years old, and Michael, lived diagonally across the street at 1000 North Croft Avenue. The incidents to be related occurred about 7 p.m. on July 21, 1948, on the premises of Sheward. Terry, Nathan, Michael, and other boys were playing a game called “King of the Mountain” on the front lawn. Terry had a fractured arm at the time. The game was very rough;' the children pushed and tackled each other. Sheward was working on his car at the curb in front of the house. Michael began crying, which attracted Sheward’s attention. He saw Nathan strike Terry on the upper arm and shoulder, knocking him down in some bushes away from where the rest of the boys were playing. He told the boys to stop the game. He walked over to Nathan and Terry and said to them, “All right. Let’s break this up. That is enough. This is it.” He pushed the boys aside by putting “both hands out with the palms of the hands upward and pushed them aside.” At the time Nathan was balanced on one knee but did not fall to the ground. He went home.

When Nathan arrived home he was met by his father Harry Magit. He told his father that he had been hit by a man in a green sweater. Harry Magit immediately ran across the street. He was mad. He went up to Sheward, mumbled something, and struck him several times with his (Harry Magit’s) fist on the right cheek bone, causing him great pain in his eye. At the time he was struck, Sheward’s arms were at his sides and his hands were open. He sustained three fractures in the right side of his face, which were repaired by open reduction. The lower eyelid was black and blue. He wore a bandage on his face and head for some time, and suffered severe pain for several weeks. As a result of his injuries Sheward lost about $500 in earnings. His medical expenses were $525.