Lato v. Rianna ( 1932 )

FROST, J.

Heard on plaintiff’s motion for new trial on damages only, after verdict for plaintiff in sum of $5.

This is an action of trespass for assault and battery.

Tbe plaintiff testified that as a result of a disagreement over an electric lighting bill, tbe defendant assaulted him and struck him over tbe right shoulder with a heavy stick.

Tbe record from tbe outpatient department of tbe Rhode Island Hospital showed that plaintiff was treated there three times; that the X-ray showed a dislocation of tbe bead of the right humerus and that a sling bad been applied. Tbe plaintiff claimed to have been unable to engage in bis customary work of peddling for a period of four weeks and to have lost thereby profits of $50 to $75 per week. Discrediting tbe latter testimony to some extent, it seems reasonable to suppose that there must have been some loss of earning power. Since tbe jury found the defendant guilty of assault and battery, it should have compensated the plaintiff in damages. Tbe uncontradicted testimony is that plaintiff received a dislocation of tbe right humerus. This being so, tbe Court thinks the damages given were clearly inadequate.

For plaintiff: DePasquale & Terrano. For defendant: Pettine, Godfrey & Cambio.

While the plaintiff has asked for a new trial on damages only, the Court may in its discretion order a new trial generally (Clark vs. N. Y., N. H. & H. R. R. Co., 33 R. I. 83 at 103), and this it does.

A new trial is granted, the same to be on all issues.