Michalak v. Tomkiewicz

<p>Abstract of the Decision.</p> <p>1. Assault and battery, § 14*—when evidence sufficient to support verdict. In an action oí trespass to recover for an alleged assault upon plaintiff by defendant, evidence examined and held to support a finding that defendant assaulted plaintiff without provocation and to warrant an award of exemplary damages.</p> <p>2. Assault and battery, § 17*—when instruction as to consideration of defendant’s pecuniary circumstances proper. In an action of trespass to recover damages for an alleged assault, evidence introduced by plaintiff as to defendant’s pecuniary circumstances was sufficient to warrant an instruction to the jury that in assessing exemplary damages they had the right to take into consideration defendant’s pecuniary circumstances.</p> <p>3. Appeal and error, § 1406*—when amount of verdict not ground for reversal. Even though the damages awarded in an action of trespass for assault are excessive, where they are not so excessive as to show prejudice on the part of the jury the amount of the verdict is not ground for reversal.</p> <p>4. Assault and battery, § 22*—where plaintiff’s conduct ground for mitigation of damages. In an action of trespass for an alleged assault where the plaintiff’s conduct while not sufficient to warrant or excuse the assault was not entirely decorous and not entirely free from censure, it should be considered in mitigation of the damages.</p> <p>5. Damages, § 246*—when remittitur proper on appeal. In an action of trespass for assault where the Appellate Court finds that the amount of damages allowed is excessive, it will require the plaintiff to remit the excess from the judgment as a condition of affirmance.</p>