Rex v. Blomberg

PER CURIAM.

This is an appeal from a district court affirmation of a decision of the magistrate’s division following trial denying plaintiff-appellant Rex damages for personal injury received in a tavern brawl. We affirm.

The sole question for resolution is whether defendant-respondent William Blomberg, in striking Rex, used greater force than was reasonably necessary. Although the evidence is sharply conflicting, it can be viewed as supporting the findings of the the magistrate that after the initial stages of the brawl, the participants, including Rex and the wife of Blomberg, had been separated and thereafter, although Rex was totally unprovoked, she again attacked Mrs. Blomberg, who had recently undergone breast surgery. Blomberg then immediately struck Rex one blow, which he claimed was blindly struck in defense of his wife. The magistrate was at liberty to accept Blomberg’s version.

The magistrate found that under all the circumstances Blomberg did not use force greater than reasonably appeared to be necessary. That finding is supported by the evidence and will not be reversed upon appeal.

Affirmed. Costs to respondents.