Lopez v. Surchia
| Citation | 112 Cal.App.2d 314,246 P.2d 111 |
| Parties | LOPEZ et al. v. SURCHIA. Civ. 18897. |
| Decision Date | 21 July 1952 |
| Court | California Court of Appeals Court of Appeals |
Nicholas Ferrara, Los Angeles, for appellant.
David C. Marcus, Los Angeles, for respondent.
Plaintiff, a minor, brought an action through his guardian ad litem to recover damages for personal injuries resulting from an assault by the defendant. The defense to the action was that the assault was committed by defendant in defense of himself, his son, and his home. The trial court, hearing the cause without a jury, gave judgment for the plaintiff for $2,500 damages, from which judgment defendant appeals.
The plaintiff testified that at the time of the incident he was 18 years of age; that he, Robert Ramus and Joe Garcia were looking for Ramus' 'girl friend' and parked their automobile in front of the premises of defendant where the assault took place. Plaintiff and Garcia proceeded up the street about three-quarters of a block from where the car was parked, Ramus remaining in the car. Returning to the car, they observed Ramus fighting with another man on the front lawn of the defendant's property; that the defendant came out of his house with a gun in his hand and fired two shots, one of them striking the plaintiff. The plaintiff testified that he took no part in the fight and at no time entered on the defendant's property. The testimony of Joe Garcia, called as a witness on behalf of plaintiff, was substantially the same as that of the plaintiff. On examination by the court he stated that the plaintiff was five or six feet from the two boys who were fighting.
The defendant, Joseph Surchia, testified that he, his wife and his son were in the kitchen when there was a knock at the door. He went to the door and saw a young man (Ramus) who said he was looking for 'Jessie', and defendant told him he had the wrong place; that Ramus said, 'No, they tell me she is here, I am coming in if I have to come in by force'; that Ramus then forced his way into the front room of the house, breaking the screen door hook. That upon Ramus' refusal to leave, defendant's son tried to eject Ramus by force, and the two of them fought in the front room, out the front door and into the front yard; that plaintiff and Garcia took sides with Ramus in the fight; that all of them were beating his son; that he yelled at them to stop but they would not do so; that defendant had a broken arm and could not defend himself; He further testified that the plaintiff was 'pounding my boy from the back.' The defendant introduced in evidence a written report which he made to the police department, in which he stated in part: * * *.'
The defendant's testimony was corroborated by that of his wife and his son.
The trial court found that the defendant committed an assault upon the plaintiff; that plaintiff did not assault defendant or his son or attempt to break into defendant's dwelling; that the assault was not committed in defense of defendant, his son, or the peaceable possession of his dwelling; and that 'the use of the gun by defendant was unlawful and excessive under the circumstances, and without due regard or care for others.'
Appellant urges that there was no proof of an assault, for the reason that there was no proof of intent to commit any injury to the person of plaintiff; that the gun was not aimed at plaintiff or anyone else and the shooting was accidental. Further, appellant contends that 'even if there was proof of an assault and battery, it was privileged, because defendant acted in lawful self-defense,' the circumstances justifying the defendant in using the force he actually exercised in the defense of his family and his home. Further, it is argued, the evidence does not disclose any wilful act on the part of defendant, but at most negligence. Finally, that the findings are inconsistent and contradictory, it is urged, because the court in effect found that plaintiff was an innocent bystander, and that defendant used excessive force; that a finding that he used excessive force 'would imply that defendant was entitled to use some force'...
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People v. Morrow
...be implied from the commission of wrongful acts evidencing wanton, wilful or reckless disregard for human safety. (Lopez v. Surchia, 112 Cal.App.2d 314, 318, 246 P.2d 111; Lowry v. Standard Oil Co., 63 Cal.App.2d 1, 7, 146 P.2d 57.) Thus, the minimal intent requirement of the crime for whic......
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...by the original conduct of the tortfeasor. (See Tate v. Canonica (1960) 180 Cal.App.2d 898, 906, 5 Cal.Rptr. 28; Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318, 246 P.2d 111; Ray Wong v. Earle C. Anthony, Inc. (1926) 199 Cal. 15, 18, 247 P. 894; §§ 435B, 870; 6 Witkin, Summary of Cal.Law, ......
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Austin B. v. Escondido Union School Dist.
...be instructed that to be liable for battery, a defendant must intend to harm or offend the victim. Relying on Lopez v. Surchia (1952) 112 Cal.App.2d 314, 246 P.2d 111 (Lopez), plaintiffs assert that intent to harm is not an element of battery in this case because the touching was unlawful a......
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Gomez v. Acquistapace
...law recognizes that "every person is presumed to intend the natural and probable consequences of his acts." (Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318, 246 P.2d 111.) Thus, a person who acts willfully may be said to intend " ' "those consequences which (a) represent the very purpose f......
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...and even used the terms interchangeably. See, e.g., McLean v. Colf, 179 Cal. 237, 176 P. 169 (1918); see also Lopez v. Surchia, 112 Cal. App. 2d 314, 318, 246 P. 2d 111, 113 (1952); Estrada v. Orwitz, 75 Cal. App. 2d 54, 170 P.2d 43 (1946); Griswold v. Hollywood Turf Club, 106 Cal. App. 2d ......