
    No. 3734.
    (Court of Appeal, Parish of Orleans.)
    FRANK MANCUSO, For Use, etc., vs., JOSEPH DUTHU.
    Appeal from Civil District Court, Division “E.”
    George Montgomery find H. M. Ansley, for Plaintiff and Ap-pellee.
    Jas. T. Nix, for Defendant and Appellant.
    Questions of fact only are involved -herein.
   MOO'RE, J.

In a former suit -between the parties hereto and founded on the same cause of action as is here presented, the defendant successfully prosecuted an appeal, from a judgment against him, to this court.

The condition of the record at that time did not exhibit a case made out with legal certainty; and, indicating in what particulars the proof was lacking, we reversed the judgment and dismissed the cause as of non-suit.

(Frank Mancuso, for the use of, etc., vs. J. Duthu, 1 Court of Appeal, Rep., p. 81,)

A second suit was thereupon instituted, and from a judgment against him in the sum of $200.00, the defendant appeals.

The .record now presents a different condition, and the proof, previously lacking, is now ample to sustain the judgment.

The testimony of the boy who was injured as well'as that of his two comrades at the time of the accident, none of whom testified in the first case, conclusively establish the fact that the defendant threw the brick at, or towards, the plaintiff's son and that it struck the boy in the head, inflicting a severe and painful wound, which confined the boy to his bed for some twelve or fifteen days.

The attending physician testifies that the wound was a severe one and that the boy had “a pretty high temperature for a few days.”

June 13th, 1905.

Rehearing refused, June 28th, 1905.

The amount of damages awarded by the trial judge is not excessive, as is urged by the appellant, nor, on the other hand, is it inadequate as urged by the appellee, who joined in the appeal and prayed for an increase. The judgment does exact justice between the parties and it is affirmed.  