William M. Kahanowitz, Greensburg, Joseph Bonidy, New Kensington, for appellant.
Vincent R. Smith, George W. Lamproplos and Cassidy & Lamproplos, Greensburg, for appellee.
Before Hirt, Acting P. J., and Reno, Dithrich, Ross and Arnold, JJ.
[ 168 Pa. Super. Page 285]
Appellant, George C. Mawhinney, brought this action in trespass to recover damages for personal injuries suffered during a fist fight with defendant, D. H. Holtzhauer. The jury awarded plaintiff $188, the exact amount of his medical bills. His motion for a new trial, on the ground of inadequacy of damages, was refused by the learned trial judge, the refusal was affirmed by the court en banc, and he appealed to this Court.
On the afternoon of April 26, 1947, plaintiff was raking a flower bed in the yard adjoining his home in New Kensington, when defendant drove by in his truck. Words were exchanged between them, an altercation occurred and blows followed, resulting in plaintiff's injuries. There is a direct conflict in the testimony of the parties as to who struck the first blow, each claiming the other did. The parties agree that after the first blows (whoever struck them), plaintiff went to a neighbor's yard, and a neighbor Illig tried to persuade both parties to stop fighting. The neighbors gathered round and the parties continued to curse each other. Then, again, the versions differ. Plaintiff claims he 'turned around to look down toward my home when Holtzhauer smashed my nose', whereas defendant avers, '* * * he came up with his hand back of him. * * * When he came up with his hand drawn back, I left him have it in the nose.' Then, the parties agree, defendant went back to his truck and drove away.
Appellant contends that the verdict was inadequate because he was reimbursed only to the extent of actual money outlay and was awarded nothing for pain and suffering.
During a colloquy with reference to points for jury instruction, plaintiff's counsel advanced the contention that, conceding that plaintiff struck the first blow and then ran away from defendant, when defendant followed
[ 168 Pa. Super. Page 286]
him and struck him, after the passage of a few minutes, the sequence of events was broken and two separate encounters occurred. He reasoned that since the blow on the nose for which plaintiff was primarily claiming damages occurred during the second encounter, defendant therein was liable as the aggressor. The court below overruled this contention and charged: '* * * the jury is justified in concluding under all the testimony that this constitutes one affray rather than two separate fights.' Plaintiff took no exception to this instruction nor did he assign it as error in his motion for a new trial. Hence, on appeal, it is not properly before us for consideration, and we need not discuss it. Dugan v. McGara's, Inc., 344 Pa. 460, 25 A.2d 718; Stevens v. Frank, 151 Pa. Super 222, 30 A.2d 161; Keane v. City of Philadelphia, 360 Pa. 384, 61 A.2d 834.
The conflicts as to who struck the first blow, and whether when defendant struck plaintiff on the nose he was the aggressor or was merely anticipating an attack by plaintiff, were questions of fact for the jury. Plaintiff's two witnesses testified only as to the termination of the fight. Defendant's witness, Mrs. Beighley, who saw the incident from the beginning, corroborated defendant's version: that defendant 'began to get out of the truck' at plaintiff's invitation and 'had one foot on the ground' when he was struck in the stomach by plaintiff, and that plaintiff then struck a second blow -- in the face -- and ran to the Singleton home. As to the final blow, plaintiff's witness, Singleton testified that it occurred 'out of a clear sky'. Mrs. Beighley, on the other hand, on interrogation by the court, stated that it occurred as ...