Opinion
March 20, 1961
In an action by an infant to recover damages for assault and battery and by the infant's father to recover damages for medical expenses and loss of services, against a dentist who, during his examination of the infant's teeth, struck the infant when she bit his finger, the plaintiffs appeal from a judgment of the County Court, Dutchess County, dated May 20, 1960, dismissing the complaint on the merits at the end of the whole case, after a jury trial. Judgment reversed on the law and the facts, and a new trial ordered, with costs to abide the event. In our opinion the evidence was sufficient prima facie to establish an assault and battery, committed with the necessary intent. Therefore, the question whether defendant actually had such intent, and the question whether the force he used was warranted or excessive under the circumstances, should have been submitted to the jury for their determination as issues of fact, and should not have been decided by the court as questions of law. Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.