
    [L. A. No. 4698.
    Department Two.
    February 25, 1919.]
    EARL A. HOLCOMB, Respondent, v. OTTO BREITKREUTZ, Appellant.
    
       Appeal—Conflict of Testimony—Noninterference With Verdict.—Appellate courts will not interfere with a verdict where the testimony is conflicting and may impose a penalty for a frivolous appeal, where the only contention of appellant is that the evidence preponderates in his favor.
    APPEAL from a judgment of the Superior Court of Los Angeles County. Chas. Monroe, Judge. Affirmed.
    The facts are stated in the opinion of the court.
    John Munro and Fay R. Robertson for Appellant.
    T. C. Gould and Frank Stewart for Respondent.
   WILBUR, J.

Plaintiff recovered judgment against the defendant for $825 for assault and battery. Defendant appeals.

Appellant’s first point is thus stated: “While the defendant fully realizes that ordinarily appellate courts will not interfere with a judgment or verdict where the testimony in the case is conflicting, yet it would appear to appellant that the record in this case discloses that the preponderance of evidence was in his favor.” Counsel thus correctly states the rule, that this court will not interfere with the verdict where the testimony is conflicting. The second point is that the verdict is excessive. Plaintiff claimed five thousand dollars punitive and five thousand dollars actual damages. The damages were not excessive. The appeal is frivolous.

Judgment is affirmed, with one hundred dollars damages to the plaintiff for a frivolous Appeal.

Lennon, J., and Melvin, J., concurred.  