Oppenheimer v. Deutchman

• Decision Date: 30 July 1953
• Citation: 119 Cal.App.2d 450,259 P.2d 457
• Court: California Court of Appeals Court of Appeals
• Parties: OPPENHEIMER v. DEUTCHMAN et al. Civ. 19576.

Page 457

259 P.2d 457

119 Cal.App.2d 450

OPPENHEIMER v. DEUTCHMAN et al.

Civ. 19576.

District Court of Appeal, Second District, Division 1, California.

July 30, 1953.

Hearing Denied Sept. 24, 1953.

John G. Oppenheimer, in pro. per.

Edward M. Raskin, Los Angeles, for respondent.

PER CURIAM.

Plaintiff appeals from an adverse judgment pursuant to verdict in an action brought by him for alleged assault and battery. The first amended complaint sought to include two other defendants in addition to Julius Deutchman. They were excluded by order of the trial court which was affirmed on a prior appeal of this case, 104 Cal.App.2d 165, 230 P.2d 873, leaving the defendant above named as the only person against whom relief was sought at the trial.

The question for determination by the jury was whether defendant on a date and at a place specified in the amended complaint 'violently assaulted, beat and scratched the plaintiff, causing plaintiff to bleed profusely from cuts in and about the mouth, lips and gums, and the said defendant called plaintiff a vile, abusive and profane name.'

At the trial plaintiff was the only witness who testified concerning the alleged wrongful acts of defendant Julius Deutchman. He stated that at 2:10 p. m., on November 23, 1949, he went to the office of defendant to serve papers on him, that defendant called him an offensive name, struck him in the face and threw him out. Plaintiff left and went back to his office. His employer sent him to the office of the City Attorney and pursuant to the latter's suggestion, photographs were taken of plaintiff's face. Later that afternoon plaintiff went to the receiving hospital, arriving there at 5:24 p. m. In the meantime he had received no medical attention. At the hospital the record shows: 'Diagnosis: Abrasion, right lower lip. Excoriations, right side neck. Treatment: cleanse.'

The original complaint in this case was filed on December 12, 1949. Plaintiff and defendant both appeared at the office of the city attorney at 11:00 a. m. the next day, December 13, 1949. At that time plaintiff stated that defendant Julius Deutchman was not the man who had assaulted him. The office record of the city attorney discloses that plaintiff 'claims defendant is not, underlined three times, the person who committed assault and battery upon him.' The deputy city attorney testified, in response to a question by plaintiff, that at the city attorney's office plaintiff 'immediately stated that this prospective defendant was not the right man, that he was not the man who assaulted you.' Plaintiff testified at the trial that he told the deputy city attorney, at the latter's office, that defendant Julius Deutchman who was then present in the room, was not the man who had assaulted him.

Defendant, when he was called as a witness, testified that he had been ill and was not at his office at the time the alleged assault was supposed to have occurred. Hospital records confirmed his testimony as to serious illness prior to the date in question.

The jury had before it unsupported testimony of plaintiff that defendant had assaulted him. No corroboration of any kind supported his declaration at the trial that defendant had committed the acts of which complaint was made. As against plaintiff's testimony at the trial was evidence, above outlined, that completely impeached and discredited plaintiff. The latter had appeared in the office of the city attorney, a public official charged with enforcement of the law. Plaintiff had instigated the hearing which had required the presence of defendant. At that time plaintiff was in a position of distinct advantage, not only fully protected but afforded an opportunity to accuse defendant of any wrongful conduct against him. Thereupon, plaintiff made the statements above set out, exculpating defendant. After hearing plaintiff's testimony and hearing the evidence which discredited and impeached plaintiff, the jury reasonably concluded that plaintiff was not entitled to money damages from a defendant who, as far as credible evidence disclosed, had done no wrong to plaintiff.

Defendant in his answer, in addition to denying plaintiff's allegation of an assault and battery, set out separate affirmative defenses of self defense and removal of plaintiff in defense of defendant's property and to preserve the peace. At the time of the trial there was only the one defendant, Julius Deutchman and, as pointed out by plaintiff, defendant's testimony that he was not at the scene when the alleged offense took place would be inconsistent with a pleading that he was defending himself or preserving the peace. It seems not unreasonable that defendant's counsel foresaw that plaintiff might claim that some agent of defendant Julius Deutchman had done the deed although the named defendant was not personally present. This theory of defense finds some justification in plaintiff's own pleadings. In the original complaint it is alleged that another person--one Victor Deutchman--and not Julius Deutchman--was the one who made the assault, and that Victor and another defendant Jack Morgan 'were partners, agents, servants or employees of the defendant Julius Deutchman * * * and were acting in the scope of their employment and under the authority' of Julius Deutchman and that their acts were ratified by the latter. It was not until he filed his first amended complaint that plaintiff charged Julius Deutchman with having committed the assault. Plaintiff's allegations as to the other two defendants Victor Deutchman and Jack Morgan in his amended complaint were legally so unsubstantial that the case as to them was ended by the order which was affirmed on appeal, as above indicated. This inconsistency in the special defenses did not...