Price, Gaulkin and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D. Gaulkin, J.A.D. (dissenting).
This case grows out of a dispute over the parking of plaintiff-decedent's vehicle in a private parking lot. The suit is against three corporate defendants (herein considered as one and referred to as the defendant).
The facts, which are not disputed, are that on March 23, 1956, Ferdinand R. Lavezzo, an officer of defendant, left defendant's building to go to the bank to pick up the payroll. He was accompanied by John Ottino, an employee of defendant, who was acting as a guard on the trip to the bank. Ottino who was rather small in stature, and was 66 years of age, was employed as a maintenance and general utility man by defendants. One of his duties was to keep defendant's loading platform and private parking lot clear of vehicles that had no right to park there.
As the two men went to defendant's parking lot to get a car, they noticed a vehicle parked in front of defendant's loading platform despite "No Parking" signs. The vehicle had a card inserted under its windshield wiper indicating that it belonged to Central Food Market which was located across the street. Lavezzo went over to the market and spoke to John Schisano, the owner of the market, and told him to move the vehicle. Lavezzo and Ottino then proceeded to the bank and picked up the payroll. Upon their return they found that Schisano had moved his vehicle from in front of the loading platform and had parked it in defendant's private parking lot in the very spot that had been vacated to go to the bank. Lavezzo again went over to the market and spoke to Schisano who was standing on the
sidewalk and told him to get his car out of the lot. Lavezzo stood in the gutter a few feet away from Schisano and was separated from him by a two-foot high snowbank which was at the curb. Some discussion took place with Schisano saying that he had no place to park, and Lavezzo telling him that it was his problem and not Lavezzo's. This "bickering" went on for a few minutes at which point Ottino, who had been waiting on the other side of the street, crossed over to where Lavezzo was standing and asked Lavezzo if he wanted the car towed away. Lavezzo replied in the negative. Schisano, however, became very excited and said "What are you trying to do, give me a hard time?" and came over the snowbank towards Ottino with his arms raised above his head and bent and his fists clenched. As he reached Ottino, Ottino punched him in the jaw and knocked him down. Lavezzo was unable to say whether the arms of Schisano had moved at all towards Ottino before the punch was struck. Ottino did not fend off any blow. Schisano got up immediately and commented on what he would have done if Ottino were a younger man. This ended the incident and the parties left. Schisano died the next morning at about 4 A.M. from a heart attack. He was 42 years of age at the time of his death.
Plaintiff, the widow of Schisano, filed this suit against defendant as the employer of Ottino, charging that Ottino, while acting within the scope of his employment, had wrongfully struck her husband and caused his death. She charged that Ottino struck her husband with the consent, permission, and at the instruction of Lavezzo. She also charged that defendant knew or should have known of the vicious nature and disposition of Ottino. She sued as general administratrix for pain and suffering and expenses, and as administratrix ad prosequendum under the "Wrongful Death Act." Ottino was not joined as a party defendant, he having died prior to the commencement of suit. Defendant denied any wrongdoing on its part and, inter alia , pleaded that Ottino was acting in self-defense.
At the trial the causal relationship between the blow struck and Schisano's subsequent death was one of the issues which was submitted to the jury. On this question the jury "Unanimously agreed that the blow aggravated and led to the heart attack and the death of Mr. Schisano." For the purposes of this appeal defendant does not dispute the jury's finding of causation.
At the conclusion of the trial the jury rendered a verdict in favor of plaintiff for $35,000 in the death action, and $2,500 on the count for pain and suffering. This latter award was reduced to $750 by the court on a motion to set aside the verdict. Defendant appeals the entire judgment.
The only known eyewitness to the altercation between Ottino and Schisano, and the only person who testified as to what actually happened was Ferdinand R. Lavezzo. His deposition was read in evidence by plaintiff as part of her case, and he also testified on behalf of the defendant. The substance of his story has been heretofore detailed. However, he also testified that Ottino had not been in any prior fights or altercations and that he had not given Ottino any instructions to strike Schisano. The basic issues in the case therefore as developed by the testimony were whether or not Ottino's striking of the decedent was in the course of Ottino's employment, and in any event was justified under the circumstances.
The trial judge, on motions for dismissal made by defendant's counsel at the conclusion of plaintiff's case and at the end of the entire case, held that jury questions were presented as to both issues and he submitted them to the jury under instructions which defendant has not challenged on this appeal. The jury's verdict, special in form, was that Ottino was acting in behalf of defendant when he struck Schisano and that he was not justified in striking the blow. The verdict on causation and the amount of the verdict then followed.
It is the position of defendant on this appeal that on the testimony of Mr. Lavezzo, it being the only evidence as to
the incident between Schisano and Ottino, the trial judge should have ruled as a matter of law that Ottino was justified in punching Schisano, and further that the altercation was a personal dispute ...