Santos v. Glavan

BISHOP, J.,

pro tem.

We are asked to reverse the judgment in favor of plaintiff in this case because the trial court was wrong in giving credence to certain witnesses, and was mistaken in giving their testimony any weight. Of course, we cannot decide this appeal on any such basis, but must affirm the judgment if there is sufficient evidence to support it. We find the evidence to be ample.

The action is one in two counts, the first for assault and battery; the second for false imprisonment. As an affirmative defense, defendant claimed that the plaintiff was the aggressor in the altercation, and the injuries received by him were the result of defendant’s actions in self-defense. A cross-complaint in harmony with the theory of the affirmative defense is the vehicle for a prayer for $25,000 damages. Plaintiff sought $20,000. The trial court awarded plaintiff $150. A motion for a new trial based on the ground that the damages allotted were excessive, as well as other grounds, was denied. As findings were waived, the determining question is whether or not there is sufficient evidence to support the implied findings upon which the judgment rests.

We have examined the evidence and there is sufficient to warrant the court in holding either that the defendant was the aggressor or that, if he was the victim of a threatened attack, he resisted with greater violence than was justified by the circumstances. Either finding supports

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the judgment. A finding that the damages inflicted amounted to $150 is equally well supported.

The judgment is affirmed. As no appeal lies from an order denying a motion for a new trial, the appeal from the order is dismissed.

Conrey, P. J., and Houser, J., concurred.