Bispo v. Surabian

NOURSE, J.

This is an appeal from a judgment in favor of the plaintiff for assault and battery. The defendant Sumpat Surabian and Jack Surabian, brothers, were living upon an eighty-acre tract of land belonging to them, part of which was planted in melons. About 10 o’clock of the evening of August 27, 1921, they were disturbed by the barking of their dogs on the premises and one of the defendants, Sumpat Surabian, took his automobile and drove to the county road, where he saw a car parked by his ranch. He then returned to the house and told his brother, Jack Surabian, and his cousin, K. Surabian, what he had discovered, and all three returned to the place, where they discovered a Mexican named Cardenas in their melon patch. Cardenas informed them that he had a partner with him. While they were questioning him the plaintiff came up and jumped into his car, the one parked along the highway, and endeavored to drive off. He was unable to do so because one of the defendants had removed the key to the machine. The defendants then questioned the plaintiff as to what he was doing upon their property, but he refused to answer, and after a heated controversy between the parties, the defendant K. Surabian struck the plaintiff over the head with a stick. For the injuries resulting the trial court, sitting without a jury, awarded the plaintiff a judgment in the sum of fifteen hundred dollars, rejecting defendants’ request that the findings designate the amount thereof allowed

[445]

as actual damages and the amount allowed for exemplary-damages.

The appeal is taken under the provisions of section 953a of the Code of Civil Procedure and is based upon four grounds: The insufficiency of the evidexice to justify the findings; that the decision is against law; that the judgment allowed is excessive; and errors in law occurring at the trial. Reliance, however, is placed upon the claim of the insufficiency of the evidence and excessive damages.

[1]

The argument in support of the first point is that there is no evidence of any nature to support the finding that the attack upon the respondent was malicious. There is much reason in the position taken by the appellants in this regard, but it cannot be said that thei'e is not some evidence fi’om which the trial court could draw the inference of malice in support of this finding. Under repeated rulings of the supreme court this is sufficient to prevent this court from granting the appellants any relief.