Klinberg v. Grisaffi

WESTERFIELD, J.

From a judgment denying plaintiff damages for an alleged assault and battery, he prosecutes this appeal.

Defendant admits the assault but contends that plaintiff was the aggressor.

The evidence is somewhat conflicting, but, at best, it can not be said to preponderate in plaintiff’s favor. We find that plaintiff, either malicioulsly or playfully (there is testimony both ways) tripped defendant, by suddenly inserting his foot between defendant’s legs, causing him to fall violently to the ground, angering him, with the result that he struck plaintiff on the ear. Defendant denies contact with plaintiff’s ear, insisting that it was the jaw, and not the ear, he struck. We believe defendant to be mistaken in this regard, but we make no distinction between the two localities. If plaintiff tripped defendant in play or “in fun” as it is sometimes expressed, we can not approve of-his sense of humor and must conclude that he was at fault in starting the trouble. As the aggressor he can not recover. Puatacci vs. Palermo, 3 La. App. 465.