Opinion
No. 21035.
May 12, 1958.
Employee's action against employer for assault. The Civil District Court for the Parish of Orleans, No. 351-350, Division "F", Alexander E. Rainold, J., entered judgment for employer and employee appealed. The Court of Appeal, McBride, J., held that evidence sustained finding of jury that employer did not assault employee during argument.
Affirmed.
Reuter Reuter, New Orleans, for plaintiff and appellant.
Frank C. Gipson and Samuel J. Tennant, Jr., New Orleans, for defendant and appellee.
This is a suit for damages resulting from an assault allegedly committed by defendant upon plaintiff. The defendant denies such assault.
The case was tried by jury below which, by a vote of 11 to 1, returned a verdict in favor of defendant, whereupon the court rendered judgment dismissing the suit. Plaintiff appeals.
The gist of the testimony of Rose Vaughn and her two witnesses, the latter being passers-by, is that she was knocked down and then severely kicked and beaten by Joe King on the sidewalk outside his barroom.
Defendant and his witnesses give a divergent version of the affair. Rose Vaughn, who was in the employ of Joe King, had several drinks with Dolores Williams before the alleged beating, and the defense witnesses all say she was drunk. It is not disputed by anyone, not even by plaintiff herself, that she poured Dolores Williams a double drink of whisky, whereupon Joe King accused Rose of giving his whisky away and demanded to know of her who was going to pay for it. An argument ensued and much profanity emanated from Rose Vaughn who stumbled over a mop bucket. Joe King says he took hold of Rose Vaughn's arm and attempted to eject her from the premises, and when they reached the door, Rose pulled him resulting in both falling through the doorway. King denies he administered any beating or that he assaulted plaintiff, and claims it was plaintiff who assaulted him. Dolores Williams, the beneficiary of the double drink of whisky, told of Rose Vaughn's fall over the bucket, but she states she then left the scene. Lena Lamothe, who lives in an adjoining room, came into the bar upon hearing the argument and saw Joe King endeavoring to lead Rose Vaughn out of the place. She gives corroboration to defendant's statement that Rose Vaughn pulled him and they both fell at the doorway. According to her, Joe King struck no blows or kicked plaintiff.
We simply do not believe that Joe King beat Rose Vaughn as related by plaintiff and her witnesses or that he otherwise assaulted her. The record reveals that she is an able-bodied Negro woman 41 years old weighing 135 pounds, while on the other hand, defendant is a slightly-built Chinese who is badly crippled by an arthritic back. We could not doubt that plaintiff would have well taken care of herself had she become engaged in physical combat with King. The defense theory that King and the woman fell upon reaching the doorway receives substantial support from the testimony of one of plaintiff's witnesses, Julia Bailey, who stated Rose Vaughn told her she fell to the ground when King was attempting to put her out of the bar.
[1, 2] We would be warranted in reversing the judgment in this case, which involves solely a question of the veracity of the two sets of witnesses, only if manifest error exists. We perceive no error in the findings of the jury; on the contrary, the verdict and the judgment are apparently fully justified by the weight of the evidence.
For these reasons, the judgment appealed from is affirmed.
Affirmed.
JANVIER, J., absent.