Helms v. Thomas

WHITE, P. J. Trial of an action for damages for assault and battery resulted in a verdict in favor of plaintiff, awarding the sum of $30,000 general damages and $100 punitive damages against the defendants William C. Thomas and Ed 0 ’Conley. Defendant William C. Thomas prosecutes this appeal from the judgment entered upon the verdict. Appellant contends that the evidence is insufficient to support the verdict and that the damages are excessive.

Appellant operated a business of preparing and delivering ready-mixed concrete. Respondent and defendant O’Conley were in his employ as truck drivers. Respondent testified that about noon on December 20, 1950, at appellant’s establishment, while respondent was watching the water-gauge on his truck, O’Conley came up behind him and said, “What’s this I hear about you getting me blackballed?” to which respondent answered, “I don’t want to talk about it.” Thereupon O’Conley grasped him by the ear and the collar of his shirt, swung him around and hit him a few times, keeping the respondent off balance. Appellant, who was operating the process of delivering to the trucks the mixture of sand, gravel and cement, ran up, seized respondent, and held him while O’Conley struck him several more times, until appellant said, “That is enough, Eddie.” Respondent’s injuries rendered him unconscious; he was taken to a receiving hospital, where he remained for four days; after two or three days at home he was taken to the California Lutheran Hospital, where he remained for approximately three weeks. He suffered a complete and permanent loss of hearing in his right ear and damage to his sense of equilibrium.

Appellant makes an earnest effort to sustain the proposition that the verdict is not supported by the evidence. Inconsistencies in respondent’s testimony and conflicts with the testimony of appellant are pointed out. The appellant testified that he and another employee, Braugher, were merely attempting to separate the combatants. It is urged that the only reasonable inference is in favor of appellant’s version of the occurrence. It is argued that appellant was a businessman, owner and manager of the enterprise, and engaged in operating the complex loading machinery when the fight started. Consider, urges appellant, that there is no evidence [268]that he knew there was a fight until the scuffling began; also the speed with which a number of blows are struck in a heated fight and the impossibility of separating the contestants without some further blows being struck while the separation is being effected; that Thomas had no motive to help 0’Conley when 0’Conley was so obviously having the best of the fight; that in the circumstances, appellant as a businessman would not have interrupted an important loading operation when he had every motive to keep the peace and insure efficient operation of his plant. The only reasonable inference, it is urged, favors appellant’s version of the affair.