281 Mass. 244

December 8, 1932 - December 9, 1932

Norfolk County

Present: Rugg, C.J., Crosby, Pierce, Field, & Lummus, JJ.

Assault and Battery.

At the trial of an action of tort for assault and battery, a finding for the plaintiff was warranted on conflicting evidence as to the commission of the assault and battery, including unequivocal testimony that the plaintiff was injured when the defendant intentionally kicked open, or otherwise forcibly pushed, the door of his automobile against the plaintiff.

TORT. Writ in the District Court of Western Norfolk dated October 29, 1931.

The action was heard in the District Court by Saunders, J., who found for the plaintiff in the sum of $1,250, and reported the action to the Appellate Division for the Southern District. The report was ordered dismissed and the defendant appealed.

J. E. Norris, for the defendant.

J. T. Doherty, (L. P. Doherty with him,) for the plaintiff.

BY THE COURT. The questions of law sought to be raised on this record are whether there was evidence to support the allegation that the defendant committed an assault and battery upon the plaintiff and whether ear trouble resulted. There was testimony direct and unequivocal to the effect that the plaintiff was severely injured in one ear and otherwise by being struck intentionally by the defendant with the door of his automobile. Whether the defendan "kicked" open or otherwise forcibly pushed the door against the plaintiff is an inconsequential detail. The evidence, which need not be narrated or summarized, was conflicting, but its weight and credibility were wholly for the trial judge and it abundantly justified the finding in favor of the plaintiff.

Order dismissing report affirmed.