Adams v. Alexander

BARNARD, P. J. This is an action for damages for assault and battery. The plaintiff, who was an osteopathic physician, had for some time been treating the defendant’s father. The defendant had believed that the plaintiff was attempting to influence his father with respect to changing his will and to having the defendant removed as administrator of the estate of his mother, who had recently died.

On April 29, 1943, in response to a call from the nurse the plaintiff called at the home of the defendant’s father. The defendant met him as he approached the house and after a few words struck him a number of times. The plaintiff was 81 years old and it appears that he was rather severely beaten. He bled profusely and had to sit down for half an hour before he was able to return to his home, which was two blocks away. He collapsed when he reached home and was treated by two doctors.

The defendant was arrested on a charge of assault and battery, and after consulting two attorneys a plea of guilty was entered and the defendant paid a fine of $50. Thereafter, and on June 8, 1943, this action was filed. The defendant consulted an attorney who told him nothing could be done until he was served with summons. He successfully evaded service of summons for some months, but service was finally made by publication, based on the ground that the defendant was concealing himself to avoid the service of summons. An answer was then filed pleading self-defense, it being alleged that the plaintiff had “wholly provoked” the attack by attempting to influence the defendant’s father in the respects above noted, and that immediately prior to the attack the plaintiff “made a motion with his hand toward his hip pocket as if to draw a gun” and that the defendant, believing himself in danger, struck the plaintiff.

The action was set for trial on March 27, 1944, at 10 o’clock a. m., it being conceded that both the defendant and his attorney had notice thereof. No appearance was made at the trial by the defendant or his attorney and after waiting twenty-five minutes the judge instructed the clerk to call the defendant’s attorney, who told the clerk that neither of them intended to appear and that the court might hear the action and the case would be left to the judgment of the court. After hearing the plaintiff’s evidence a judgment for $5,125 was entered in favor of the plaintiff on the same day.

[400]Thereafter, the defendant moved, under section 473 of the Code of Civil Procedure, to vacate and set aside the judgment on the grounds of mistake of fact and of law, inadvertence, surprise and excusable neglect of himself and his former attorney, and also moved for a new trial. The court denied the motion for relief under section 473 and took the motion for a new trial under advisement. Later, he decided he would grant a new trial solely on the issue of damages unless the plaintiff: consented to a reduction of the judgment to $3,500. With the plaintiff’s consent, the judgment was reduced to that amount and a new trial was denied. The defendant has appealed from the judgment and from the order denying his motion for relief under section 473.