Bash v. New York Life Insurance

It was error to instruct the jury that punitive damages might be allowed if it were found that the acts complained of were committed with the defendant’s express or implied authority. There is no evidence in the record of such authority concerning the assault alleged to have been committed on September 10, 1940, which is the assault principally relied on to sustain the verdict. It is, therefore, unnecessary to consider, at this time, the other questions presented on this appeal.

The judgment should be reversed and a new trial ordered with costs to the appellant to abide the event.

Present • — ■ Martin, P. J., Townley, Glennon, Untermyer and Dore, J.; Dore, J., concurs in result in memorandum.

I agree there was no evidence to support the charge concerning punitive damages, but in addition I consider there was no evidence to support any claim for assault by the doctors who merely conducted routine examinations, and that on the whole the jury’s verdict is against the weight of the credible evidence. Accordingly I vote to reverse and to dismiss the second and third causes of action and to grant a new trial only as to the claimed assault alleged in the first cause of action.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.