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District Court of Appeal, First District, Division 2, California.


Civ. 15054.

Decided: January 29, 1953

Aaron Vinkler, San Francisco, for appellant. F. W. Tenney, Heller, Ehrman, White & McAuliffe, San Francisco, for respondents.

Plaintiff sued for damages for personal injuries alleged to have resulted from an assault committed by the defendant, who was a foreman of Roos Bros., plaintiff's employer. The injury was alleged to have resulted from a blow struck by the foreman somewhere on the back of the plaintiff.

The case was tried before the court sitting without a jury and resulted in a judgment for defendant on findings that it was untrue that the defendant struck the plaintiff on the back or otherwise, and that it was untrue that because of any acts of the defendant the plaintiff was disabled by an injury to her spine or otherwise.

The facts are not complicated. The foreman and other witnesses who saw the incident testified that he patted plaintiff on the shoulder and told her not to talk so much. It is also undisputed that on more than one occasion prior to the incident the plaintiff had been injured by a fall or strain, and it was a fair inference for the court to draw that whatever her suffering at the time the complaint was filed, it was caused by these prior incidents and not by any act of the defendant.

The evidence fully supports the findings.

Judgment affirmed.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.