Appeal, No. 258, Jan. T., 1962, from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1961, No. 3891, in case of Joseph Chambers v. Charles Montgomery and Mary Montgomery, his wife. Judgment, as reduced, affirmed.
Frank M. Jakobowski, with him White & Williams, for appellants.
Steven E. Halpern, with him Samuel Kagle, for appellee.
Before Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE O'BRIEN
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 of 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, being $4,000 compensatory damages and $2,500 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. Ischo 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 ...