Webb v. Rothschild

[245] The opinion of the court was delivered by McEnery, J. The plaintiff brought this suit to recover of the defendant the sum of six thousand and seventeen dollars as damages inflicted upon him by an assault and battery on the 13th day of June, 1894. There was judgment for the plaintiff in the sum of one thousand dollars. The case was tried without the intervention of a jury. The defendant is a clothing merchant on Oanal street. The plaintiff had purchased a vest at defendant’s store for the sum of ninety cents, the price having been reduced from one dollar and twenty-five cents, because of its damaged condition. The plaintiff says, when shown to him the vest was damaged on one side, and that when he left the store, on examination he found the vest damaged on both sides. He, within an hour, returned to the store, and demanded his money on the return of the vest. The defendant requested him to take another vest. He insisted upon his money being returned. It was returned to him. In the act of leaving the store and when near the exit, the defendant called to plaintiff and told him, with an opprobrious epithet, not to come back into his store. The plaintiff replied that he would not “ come back into the darned store any more.” The defendant then put himself in front of the plaintiff and asked him what he said, when he repeated his reply to defendant. Thereupon defendant assaulted him. The testimony shows that the defendant was the aggressor in language and conduct. There was no provocation for the assault, and nothing attending it to justify its violent continuance. The plaintiff was an old man fifty-five years of age, sick, weak and very feeble. The plaintiff is entitled to a judgment. Sheen vs. Poland, 34 An. 1107. The facts in this case, so far as exemplary damages are involved, are almost identical with those in the case cited. We will therefore fix them at five hundred dollars. In both cases the assault was unprovoked, violent, and a wound inflicted. For the special damage inflicted we think one hundred dollars will be full compensation. The judgment is amended so as to reduce the judgment in favor of plaintiff to the sum of six hundred dollars, -plaintiff to pay costs of appeal.