
    Omer Poirier vs. Joseph Courtemanche
    No. 71417
    April 24, 1928.
   SUMNER, J.

Plaintiff brougnt suit to recover damages caused by an assault made by the defendant upon him. The jury returned a verdict for the plaintiff in the sum of $500 and defendant has filed his motion for a new trial on the usual grounds.

The defendant because of some real or fancied grievance made an unprovoked and unpremeditated assault upon the plaintiff. Afterwards a criminal complaint was brought against defendant and he was adjudged guilty and fined $50'.

The defendant sought out the plaintiff in the mill and attacked him as he was standing at a loom. He struck him several times — one witness testified to four — and knocked him against a loom. One of the ears of the plaintiff was split open, two ribs were broken and his jaw was swollen. Plaintiff lost only half a day from his work but said that he paid $40 to a fellow employee who helped him with his heavy work for a period of five or six weeks, as he was not able to do any lifting for a long time. The broken ribs were strapped for a period of three weeks.

Defendant introduced the testimony of Dr. McLaughlin, who said that a fracture of the bone could only be established by the use of the X-ray and in this ease no X-ray was taken. However, before the invention of the X-ray, surgeons established their diagnoses without it, and in this case the Court is unable to say that the diagnosis of the surgeon employed is incorrect. If the defence had any question they could themselves have had an X-ray taken to determine whether there had actually been a fracture.

For plaintiff: John R. Higgins.

'For defendant: Greene, Kennedy & Greene.

The monetary loss of the plaintiff was apparently in the vicinity of $93, consisting of a doctor’s bill of $50, $40 paid for assistance in his work, and $3.24 for the time he lost in the mill.

The balance of the verdict must have been assessed for pain and suffering and punitive damages.

The defendant was a fellow worker with the plaintiff and apparently not possessed of any large means. Although the Court thinks that the plaintiff is entitled to punitive damages, it feels that the sum of $400 would be amply sufficient to meet his claim, including punitive damages.

Accordingly, the Court grants the motion of the defendant for a new trial unless the plaintiff shall, in writing, within three days from the filing of this rescript remit all of the verdict in excess of $400.  