Ward v. Demartini

THE COURT.

An action to recover damages for personal injuries alleged to have been maliciously inflicted upon the plaintiff by the defendant. A jury returned a verdict against defendant for six thousand dollars, as compensatory, and one dollar as punitive, damages. A motion for a new

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trial was denied, and defendant has appealed from the judgment.

The grounds of appeal are that the verdict is unsupported; that the court instructed the jury erroneously and also erred in admitting certain testimony; further, that remarks by the trial judge in the presence of the jury were prejudicial to defendant, and that excessive damages, appearing to have been given under the influence of passion or prejudice, were awarded against him.

The plaintiff was employed by the City Garbage Removal Company. Her duties consisted in procuring contracts for the removal of garbage, and in addition she rendered clerical services. The defendant was the secretary of the company, which maintained offices in the Clunie Building in San Francisco. It was testified that on November 10, 1927, an altercation occurred at the office of the company between the defendant and one Guido Braccini, the manager of the concern. Plaintiff, with another .employee, was in an adjoining room when the altercation began. Hearing the noise she opened the door between the rooms and found the defendant beating Braccini with his fists. Braccini was the smaller man, and plaintiff attempted to separate the parties, whereupon the defendant attacked her. He pushed her back and struck her in the left groin with his knee. In addition to pain, the blow caused severe contusions, a paralysis of the femural nerve and a numbness and partial paralysis of the left leg. According to one physician her injuries will probably be permanent. Another testified that she may recover with proper treatment but that her recovery will be slow. The defendant denied that he struck or otherwise injured the plaintiff, and the evidence as to what occurred is conflicting. It was amply sufficient, nevertheless, to support the conclusion that plaintiff was wilfully injured by the defendant in the manner claimed and that her injuries are likely to be permanent.

The court instructed the jury that if the plaintiff went to the assistance of one being assaulted by another, and used no more force than was necessary to prevent the assault, she was acting within her legal right in preventing the commission of a public offense. Defendant claims that there was no evidence that a public offense was being com