Willis v. Perinoni

BURROUGHS, J.,

pro

tem.

In this action plaintiff sued the defendants for the sum of five thousand dollars actual damages alleged to be due him for personal injuries inflicted by said defendants, and also for the sum of five thousand dollars exemplary damages. The cause was tried

[765]

by a jury and a verdict returned in favor of the plaintiff and against both defendants for the sum of five thousand dollars. Defendants have appealed from the judgment entered on said verdict.

In support of his cause of action it is alleged in the amended complaint that on or about the twenty-first day of May, 1926, in the city of Petaluma, county of Sonoma, the defendants wantonly, maliciously, grossly, outrageously and violently assaulted the plaintiff in that the defendant Ida Perinoni did then and there hold the plaintiff while the defendant Romildo Perinoni did then and there, while said Ida Perinoni held the plaintiff, strike him on the head with an iron bar, causing plaintiff’s skull to be fractured and inflicted upon him permanent injuries. The defendants deny the allegations of the complaint and by way of a further defense allege that defendant Ida Perinoni was on the day of the alleged assault the owner of a piece of real property in the city of Petaluma and that the plaintiff forcibly entered upon said real property against her will and without her consent and that she thereupon ordered him to leave said premises which he refused to do, and that he thereupon attacked her, and assaulted her, and struck her with a hammer. That the said defendant Romildo Perinoni witnessed said assault and both the defendants, believing that the life of defendant Ida Perinoni was in danger, and in order to prevent further assault by the plaintiff, forcibly ejected plaintiff from the premises, using only sufficient force necessary for that purpose. In support of the appeal appellants contend that the verdict and judgment against the defendant Ida Perinoni is against law; that the judgment, in so far as it affects the defendant Romildo Perinoni, is excessive. In support of these claims it is contended, first, that there was an entire absence of malice shown by either defendant against the plaintiff; second, that the defendants were resisting a trespasser on the premises of the defendant Ida Perinoni at the time of the alleged assault and used only necessary and sufficient force to eject him therefrom; third, that with respect to the defendant Ida Perinoni there was no evidence of aiding and abetting the assault or a conspiracy between the defendants that the defendant Romildo Perinoni should commit the alleged assault upon plaintiff.