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10/23/68 JAMES A. FALLERS v. ROBERT P. DI EMEDIO

October 23, 1968

JAMES A. FALLERS, JR.
v.
ROBERT P. DI EMEDIO



The opinion of the court was delivered by: Bifferato

VINCENT A. BIFFERATO, Associate Judge

UNREPORTED OPINION

This letter is the Court's decision in the above matter tried before the Court without a jury on October 9, 1968.

This action was commenced by Plaintiff for damages caused by an alleged assault and battery committed by defendant.

The Court finds the facts to be as follows:

On April 16, 1966, defendant and a companion named Windsor were on their way to a bar. Each was driving separate cars. As they approached the bar, they stopped their cars in front of a fire station with the intention of parking there. A fireman by the name of Schmidt told defendant and Windsor to move the cars. Defendant moved his car farther down the block and returned to the front of the fire station to aid Windsor who could not start his car. Schmidt offered to help push the car away because it was blocking the fire station door. Windsor and Schmidt began to argue. Defendant approached the parties intending to calm down Windsor; plaintiff, also a fireman, approached Windsor and Schmidt. Defendant saw plaintiff raise his arms; and believing plaintiff was going to strike Windsor or himself, defendant struck plaintiff in the nose with his fist. The blow broke plaintiff's nose. Defendant does not deny he struck the blow.

Plaintiff, because of the broken nose incurred medical expenses in the amount of $121.90 and missed sixteen (16) days of work, at a wage loss of $249.44.

No expert medical testimony was offered at the trial. Plaintiff and his wife testified as to the effects suffered by plaintiff due to the broken nose. This testimony indicated that plaintiff suffered discomfort sleeping for approximately three nights, had difficulty in drinking, and gagged on one occasion because of bandages. Plaintiff claims that the injury has caused a sinus problem, but no causal relationship was established between the broken nose and a sinus problem. There was no testimony as to any permanent physical ailment.

The Court is satisfied that plaintiff has by a preponderance of the evidence proven that defendant is liable for the injury. There has been no testimony offered to justify defendant for striking plaintiff. The mere fact that plaintiff raised his arm is no indication of an assault or threat of any violence by plaintiff. Defendant's act was unprovoked and without justification. The Court awards plaintiff the sum of $900 as compensatory damages.

The plaintiff also seeks punitive damages claiming that defendant's act was wilful and malicious.

The Court agrees that defendant acted in a wilful and wanton manner entitling plaintiff to punitive damages.

In awarding punitive damages the Court relies on Reynolds v. Willis, 209 A.2d 760 (1965) and Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944). These cases hold that punitive damages may be recovered not by way of recompense to an injured plaintiff, but as punishment to the tortfeasor when his act was committed wilfully or wantonly, and that these damages must not be disproportionate to the award of compensatory damages. The Hughes case (supra) further states that all surrounding circumstances must be considered in determining the amount of punitive damages.

The Court, in following the Hughes case, has considered the income of defendant of $110 a week as he has testified, the number of children defendant has, the involvement of plaintiff in the argument between Windsor and Schmidt, the intent of defendant in hitting plaintiff, and the manner in which the blow was struck. The Court believes the assault and battery was committed with sufficient force to break plaintiff's nose but the ...


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