Lingren

The plaintiffs sued the defendant for damages caused by an alleged malicious unlawful assault and recovered a judgment for $250. Being dissatisfied with the amount thereof, the plaintiffs appealed, under section 953a of the Code of Civil Procedure. In their brief the appellants make only one point—the award was insufficient. In making this point they claim they should have been awarded exemplary damages. [1] We think it may be said that the judgment of the trial court included exemplary damages and that the contention of thé appellants is not well founded.

The appellants, in their complaint, pleaded an unlawful assault by the respondent upon Mrs. Lingren and they pleaded that such assault was oppressive and malicious. The trial court found on all of the issues in favor of the appellants and fixed the damages in the sum of $250. The evidence was quite evenly balanced on the questions (1) as to whether the assault was made by Mr. Nicholas or Mrs. Lingren, (2) as to the injury, if any, caused to Mrs. Lingren, and (3) as to her expenses incurred by reason of such injuries. It is clear that after the assault Mrs. Lingren became sick and disabled; but it is not at all clear that such…