Chambers v. Montgomery

• Court: Pennsylvania Supreme Court
• Writing for the Court: Author: O'brien
• Citation: Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (Pa. 1963)
• Decision Date: 04 June 1963
• Parties: Joseph CHAMBERS v. Charles MONTGOMERY, Appellant, and Mary Montgomery, his wife.

192 A.2d 355

411 Pa. 339

Joseph CHAMBERS v. Charles MONTGOMERY, Appellant, and Mary Montgomery, his wife.

Supreme Court of Pennsylvania.

June 4, 1963.

Frank M. Jakobowski, White & Williams, Philadelphia, for appellant.

Steven E. Halpern, Philadelphia, for appellee.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.

O'BRIEN Justice.

On September 16, 1956, an altercation occurred on the lawn of the home of John Walsh, brother of Mary Montgomery. This altercation resulted in a serious injury to Joseph Chambers and he instituted an action in trespass against Charles and Mary Montgomery, Husband and wife, alleging that they had committed an assault and battery against him, causing serious personal injuries. A jury trial resulted in a verdict for Mrs. Montgomery and for Chambers against Mr Montgomery, in the amount of $6,500.00, being $4,000.00 compensatory damages and $2,500.00 punitive damages.

Montgomery moved for judgment n.o.v. or a new trial and, upon the refusal of his motions by the court en banc, judgment was entered on the verdict of the jury against him. This appeal followed.

In considering a motion for judgment n. o. v., the evidence together with all reasonable inferences therefrom, are considered in the light most favorable to the verdict winner. However, in considering the action of the lower court in granting or refusing a new trial, an appellate court will affirm, unless there has been a clear abuse of discretion, or an error of law which controlled the outcome of the case or the decision of the lower court. Ishco v. Bailey, 403 Pa. 281, 169 A.2d 38 (1961); Staszak v. Seibel, 401 Pa. 494, 165 A.2d 1 (1960); Super v. West Penn Power Company, 392 Pa. 159, 140 A.2d 20 (1958); Muroski v Hnath, 392 Pa. 233, 139 A.2d 902 (1958).

In view of these well known and oft stated standards of review, the court below properly refused to enter judgment n. o. v Appellant contends that he did not commit as assault and battery on appellee with the intention of inflicting bodily harm and that even if he did strike appellee, he was justified in doing so. The evidence, viewed in the light most favorable to the verdict winning appellee, discloses the following state of facts, as aptly summarized in the opinion of the court below.

'The incident occurred on September 16, 1956, between 9:00 and 9:30 o'clock P.M. on the premises of defendant's brother-in-law, John Walsh, at 701 Surrey Lane, Glenolden, Delaware County, Pennsylvania. It followed a meeting that evening which had been set by John Walsh at his home with the parents of certain 10 or 11 year old children who had been in an altercation with Walsh's minor son. During the course of the evening, Mrs. Edward Tyrell became engaged in a heated argument with John Walsh over the involvement of her son, and was thereupon asked by Walsh to leave. On her return home she reported the conversation to her husband who was there with Joseph Chambers, the plaintiff, and his two sons, Jack Chambers, 21 years of age, and Edward Chambers, 16 years of age.

'Edward Tyrell, unnoticed by his wife, proceeded to Walsh's home and called him outside. Shortly thereafter, Mrs. Tyrell noted her husband's absence and was concerned about him. She asked Jack Chambers, plaintiff's son, to go after Mr. Tyrell and being him home. Shortly after Jack Chambers left, the plaintiff, Joseph Chambers, followed. When plaintiff arrived at the Walsh house he saw Tyrell lying on the ground unconscious and his son, Jack Chambers, and Walsh engaged in a fight on the lawn. As plaintiff bent over the pair on the ground to ask them to break, defendant, Charles Montgomery, struck him from behind, knocking him off balance and caused him to spin around. Whereupon the defendant struck a second and more severe blow which caused the plaintiff to completely lose his balance and slip and fall down an embankment, breaking his hip.'

Needless to say, appellant's version of the incident was directly contrary to that of appellee. The jury, after a proper charge, chose to accept appellee's version and there was ample evidence supporting that acceptance. Such being the case, a verdict against appellant was proper, and not arbitrary and capricious, as contended by him.

Appellant's motion for new trial alleges as error the affirmance by the trial court of appellee's points for charge no. 1 and no. 2, and its refusal of appellant's point no. 3. None of these rulings was error.

Appellee's first point is as follows:

'1. If the jury believes that the defendant or defendants intentionally struck the plaintiff from behind as described by the plaintiff and his witnesses, plaintiff is entitled to damages for the resultant injury.'

Appellant complains that this point allowed the jury to find for appellee without reference to any justification for the assault, merely by finding an intentional striking. Without more, we would agree with appellant's contention. The fact is, however, that although the trial court affirmed the point, it was not read to the jury as such. A reading of the entire charge indicates that the trial court carefully instructed the jury on liability and made it perfectly clear that the jury should find for defendants if they found the attack to be justified or privileged.

Appellee's second point is as follows:

'2. If the jury believes the testimony of plaintiff and plaintiff's witnesses that the defendant, Charles Montgomery, remained silent in the face of an accusation that he had struck plaintiff, you may infer that his silence constituted an admission of that act.'

The familiar rule that 'silence gives consent' is applicable in civil as well as criminal proceedings. Henry, Pennsylvania Evidence, sec. 92. Here, the jury could properly find, from the evidence, that appellant remained silent in the face of an accusation and in circumstances requiring a reply, and therefrom infer the truth of the accusation. Appellant argues that the evidence...