{
  "id": 2970017,
  "name": "Charles A. Michalak, Defendant in Error, v. C. J. Tomkiewicz, Plaintiff in Error",
  "name_abbreviation": "Michalak v. Tomkiewicz",
  "decision_date": "1916-05-12",
  "docket_number": "Gen. No. 21,103",
  "first_page": "405",
  "last_page": "407",
  "citations": [
    {
      "type": "official",
      "cite": "199 Ill. App. 405"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 278,
    "char_count": 4892,
    "ocr_confidence": 0.531,
    "sha256": "ed38d15c90cad143b671df670b20f23fd0ce8c5dfa49192e78cc14713060e451",
    "simhash": "1:ca3e18c11c818575",
    "word_count": 796
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  "last_updated": "2023-07-14T15:51:30.955611+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Charles A. Michalak, Defendant in Error, v. C. J. Tomkiewicz, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Pam\ndelivered the opinion of the court.\n2. Assault and battery, \u00a7 17 \u2014when instruction as to consideration of defendant\u2019s pecuniary circumstances proper. In an action of trespass to recover damages for an alleged assault, evidence introduced by plaintiff as to defendant\u2019s pecuniary circumstances was sufficient to warrant an instruction to the jury that in assessing exemplary damages they had the right to take into consideration defendant\u2019s pecuniary circumstances.\n3. Appeal and error, \u00a7 1406*\u2014when amount of verdict not ground for reversal. Even though the damages awarded in an action of trespass for assault are excessive, where they are not so excessive as to show prejudice on the part of the jury the amount of the verdict is not ground for reversal.\n4. Assault and battery, \u00a7 22*\u2014where plaintiff\u2019s conduct ground for mitigation of damages. In an action of trespass for an alleged assault where the plaintiff\u2019s conduct while not sufficient to warrant or excuse the assault was not entirely decorous and not entirely free from censure, it should be considered in mitigation of the damages.\n5. Damages, \u00a7 246*\u2014when remittitur proper on appeal. In an action of trespass for assault where the Appellate Court finds that the amount of damages allowed is excessive, it will require the plaintiff to remit the excess from the judgment as a condition of affirmance.",
        "type": "majority",
        "author": "Mr. Presiding Justice Pam"
      }
    ],
    "attorneys": [
      "Otto H. Beutler and Beach & Beach, for plaintiff in error.",
      "Charles W. Lamborn, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Charles A. Michalak, Defendant in Error, v. C. J. Tomkiewicz, Plaintiff in Error.\nGen. No. 21,103.\n(Not to he reported in full.)\nError to the Circuit Court of Cook county; the Hon. Richard S. Tuthiix, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.\nAffirmed on remittitur; otherwise reversed and remanded.\nOpinion filed May 12, 1916.\nStatement of the Case.\nAction of trespass by Charles A. Michalak, plaintiff, against C. J. Tomkiewicz, defendant, for damages for an alleged assault made upon plaintiff by defendant. Upon a trial of the cause the jury returned a verdict for five hundred dollars and to reverse a judgment on this verdict, defendant prosecutes this writ of error.\nDefendant contended that the court erred in giving on behalf of the plaintiff, instructions Nos. 2 and 3, the subject-matter of which was the question of damages; and further contended that the verdict, under the facts and circumstances, showed that the jury allowed the plaintiff exemplary or vindictive damages, when none should have been allowed, and therefore the damages were excessive.\n. The evidence showed that at the time of the assault defendant was the owner of a drug store, and had in his employ the plaintiff, who entered his service as an apprentice. Plaintiff, In the course of his employment, had occasion to sell postage stamps, which were usually kept in a drawer not under lock and key. The money for the sale of stamps was placed in the drawer. On previous occasions there had been shortages in the stamp drawer, which led to disputes between plaintiff and defendant. On the day of the assault, a similar discussion had arisen between them, and the plaintiff was summarily discharged. Defendant contended that as the testimony was conflicting, the jury should have been \u201ccorrectly instructed as to the rule of damages applicable to the case.\u201d\nAbstract of the Decision.\n1. Assault and battery, \u00a7 14 \u2014when evidence sufficient to support verdict. In an action o\u00ed trespass to recover for an alleged assault upon plaintiff by defendant, evidence examined and held to support a finding that defendant assaulted plaintiff without provocation and to warrant an award of exemplary damages.\nDefendant also complained of instruction No. 3, wherein the jury were told that in assessing punitive or exemplary damages, they had the right to take into consideration the pecuniary circumstances of the defendant. He contended that this instruction should not have been given, because there was no evidence offered by plaintiff with reference to the pecuniary condition of the defendant. Plaintiff testified that defendant was the owner of a drug store where he (plaintiff) had been employed; and that defendant was president of the Polish National Daily. Defendant testified that he operated and owned a drug store; that he had been in the drug business for twenty years, and further stated that he was in the newspaper business, and that he was president of the Polish National Publishing Company. He contended, however, that this is not such evidence as would warrant a conclusion as to his pecuniary condition. Defendant finally contended that the damages allowed were excessive.\nOtto H. Beutler and Beach & Beach, for plaintiff in error.\nCharles W. Lamborn, for defendant in error.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0405-01",
  "first_page_order": 427,
  "last_page_order": 429
}