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May 17, 1961

Andrew KISSADAY, Plaintiff,
Frank ALBANESE, Edra Haulage, Inc., Raphael Mana and Edward De Roia, doing business under the firm name and style of Edra Haulage Company, Defendants

The opinion of the court was delivered by: BYERS

This is an assault case in which the plaintiff seeks recovery for bodily injuries said to have resulted therefrom. He has sued the individual, Frank Albanese, whom he seeks to hold liable, and the latter's corporate employer, Edra Haulage, Inc.

The theory upon which he relies as to the latter, is that the assault was committed in furtherance and discharge of his employer's business, within the purview of certain cases later to be referred to, and therefore the employer should be held according to the principles of respondeat superior.

The facts as to the assault are not in substantial controversy. The place is agreed to have been the loading platform of American Stores, in Kearney, New Jersey. The date was January 19, 1956, the time being between 8:00 and 10:00 a.m. Diversity jurisdiction is based on plaintiff's New Jersey residence and citizenship, while that of Albanese and his employer are of New York.

 Plaintiff and Albanese were driving motor trucks in the course of the employment of each, and reached the premises of American Stores at around or shortly after 7:00 o'clock on this morning.

 By some process, plaintiff seems to have appropriated a position in the line of trucks, in advance of that of Albanese, who had arrived earlier. This led to a verbal altercation that came to a head on the loading platform; the man in charge there was Paul Best, who was a witness. Seemingly the dispute between the two drivers as to whether plaintiff had indeed backed his truck to the platform out of turn, was resolved by the checker, in favor of the plaintiff's retaining the position which he had gained. This led to the further interchange of heated, profane and indecent remarks which were calculated to evoke physical reprisal, and that occurred. Both men used their fists but without inflicting more than casual injury.

 It is not that of which plaintiff complains. He says that during the brawl, Albanese kicked him in the groin and harmed him so severely that he fell to the platform in great pain, and that he suffered so acutely that he lay upon the platform ten or fifteen minutes, unable to move, during which time no one offered him any help or assistance.

 His testimony as to this result is contradicted by Albanese, Smith, a truck driver who was an eye witness to the altercation prior to the brawl, and to the fact that both men had their hands up and each made a pass at the other, but Smith saw no blow struck. He did not see Albanese kick plaintiff, nor did he see the latter fall to or lie upon the platform. He said that there were from eighteen to twenty-three men on the platform at the time. It is significant that none of these was called as a witness.

 Best testified that he recalled the altercation, and saw these two men engaged in a struggle, and went over to them, called upon them to stop, and separated them, that neither fell, and both walked away along or across the platform. Specifically that he did not see plaintiff lying on the platform although he kept them both under observation for about five minutes.

 It is plaintiff's testimony that after resting for a time, he proceeded to unload his truck, and later drove it to his employer's place in Jersey City. He complained of his pain, knocked off during the afternoon, and drove his own car to his home in Elizabeth.

 This testimony is related in some detail in order to reach a fair conclusion as to the actual nature and extent of the plaintiff's injuries resulting from this episode.

 If he had complained, for instance, of a black eye, his assent to such a consequence by entering into the fracas, might stand in the way of recovery. Re-Statement Torts, Sec. 60. However he cannot be deemed to have consented to the infliction of such an injury as he here asserts. A discussion of such matters in 6 Am.Law Reports Ann., at page 388 et seq. is informative.

 Therefore it is necessary to inquire whether the credible testimony sustains his assertions. Plaintiff says that he reported his condition to his wife on arrival at his home, and exhibited the affected area to her, and that the groin was black and blue and swollen, as was his left testicle. That his wife provided an ice-pack which was applied to the affected parts. (The wife was not called as a witness.) He said that he did not return to work for a period of ten days. That he first called a doctor two days after the happening, which would be January 21, 1956.

 Dr. O'Grady testified that he first saw the plaintiff on January 26, or five days later than as stated by the plaintiff. He found the left testicle to be bruised and swollen to four times its natural size. He next saw him on a date not disclosed in February, and found the said swelling to have been reduced to two and one-half times natural size. He advised therapy and that the plaintiff wear a jock-strap.

 He next saw the plaintiff in St. Barnabas Hospital on May 17, where he performed an operation to correct a bilateral inguinal hernia, and the ...

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