Dutro v. Castoro

THE COURT.

An action to recover damages for assault and battery made upon the plaintiff by defendant Castoro, an officer of defendant company.

A jury returned a verdict for plaintiff against both defendants in the sum of $1500. Upon motion for a new trial this sum was reduced to $1,000, and a judgment was thereupon entered, from which defendants appeal.

The plaintiff was employed by the company as a tomato picker. In the course of the work an altercation arose between him and Castoro, following which the assault was committed. It was alleged that the assault was malicious and was ratified by the company, and that as a consequence the plaintiff suffered severe injury.

Defendants complain of certain instructions and rulings by the trial court, and urge that the verdict in certain particulars is unsupported.

The jury was instructed in substance that one cannot use a quarrel as an excuse for assaulting another and then plead self-defense; and if the party unlawfully attacked uses more force than necessary to protect himself he in turn commits a battery upon his assailant for.which he will be liable. We are satisfied that these instructions substantially state the law and furnish no ground for reversal. Moreover, self-defense is an affirmative defense, which was not pleaded by the defendant, and the instructions were in the circumstances not prejudicial.

(Marriott

v.

Williams,

152 Cal. 705 [93 Pac. 875, 125 Am. St. Rep. 87].)

The plaintiff alleged a permanent loss of earning power due to the injuries; and the court instructed that the jury might, if they so found, consider the fact as an clement of damage. The evidence sustained the allegation; and it is well settled that such damages may be recovered under a general averment of damage.

(Treadwell

v.

Whittier,

80 Cal. 574, 575 [22 Pac. 266, 13 Am. St. Rep. 175, 5 L. R. A. 498] ;

Castino

v.

Ritzman,

156 Cal. 587 [105 Pac. 739];