Martin v. Costa

THOMPSON, J. The defendant has appealed from a judgment of $500 which was rendered against him for personal injuries inflicted upon the plaintiff in an affray.

It is contended the findings and judgment are not supported by the evidence; that the defendant used no more force in the affray than was required in necessary self-defense, and that because the plaintiff’s husband was the aggressor in the affray she is barred from a recovery of judgment, the proceeds of which are community property, in which the husband may not participate on account of his wrong.

There is a serious conflict of evidence. It is difficult to determine the facts of the case, since all of the witnesses who actively engaged in the affray are Portuguese who understand and speak the English language very imperfectly. No interpreter was employed at the trial.

The plaintiff and her husband live on a farm near Gus-tine. They are engaged in the dairy business. Joe Almeida was temporarily living with them and was working for his board and lodging. It appears that Almeida had purchased from the defendant a pair of automobile tires which he had not paid for. At 6 o’clock P. M. on April 1, 1933, the defendant appeared at the home of plaintiff and asked for Almeida, who was then helping Mr. Martin milk the cows. Almeida met him in the front yard and a controversy ensued which resulted in a conflict. During the affray Mr. Martin was called by his children. He told Costa to leave the premises; that he did not want any disturbance [496]at his home. Costa replied, that he would go, but that he would return again that night and that he either wanted Almeida to pay for the tires, or he would take them away. At 8 o’clock that evening, the defendant, accompanied by his brother, who went by the name of Alfonse Bastos, and his nephew, Louis Costa, returned in an automobile to the home of the plaintiff. Bastos went to the door and demanded an interview with Almeida. Mr. Martin went out to the machine which was stationed near the kitchen window. The defendant and his son were not in the machine, but were standing near by. Bastos said to Mr. Martin that he was told of the fight which occurred there at 6 o’clock between Costa and Almeida, and added, “You take a part for Joe Almeida, I want to take a part for my brother.” Mr. Martin told him that he did not see the fight which had occurred previously and that he did not want any trouble there at his home; that Almeida had gone away with a truck. Bastos replied that “if he was home he would get it now”. Martin insisted he did not want any disturbance there on his premises. He testified, “I sent him away, he won’t go.” Mrs. Martin testified in that regard: “He (Martin) said several times for him to go away, he didn’t want any bother, any trouble, and he (Costa) just walked three or four steps toward the car . . . and came back and swear.” Vulgar and opprobrious language was used towards Martin. The evidence does not specifically show that Costa approached Martin in a threatening manner, but the circumstances warrant the inference that he did come back threatening him with bodily harm. From his language and his attitude it may be reasonably inferred that he did threaten to attack Martin. The fact that the three men came together after they had been warned not to return, and that Bastos assumed the part of an aggressor and told Martin he had come there to take the part of his brother, warranted him in believing he was to be assaulted. Mrs. Martin testified: “My husband struck him (Bastos) by the car with the hand, . . . (the other) two come . . . running back there, and they jumped on my husband, all three of them on him, and Mr. Costa socking my husband on the back like hammer and nails and just grab him there.” Mrs. Martin then jumped out of the window and ran to her husband’s assistance. She seized the bib of Costa’s overalls to prevent him from assaulting her husband. She testified