COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59853 PAUL KORDICH : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION EDWIN FINKEL : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT FEBRUARY 6, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Parma Municipal Court Case No. 88 CVE 1791 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Robert S. Belovich Joseph S. Vala 5638 Ridge Road P.O. Box 609263 Parma, Ohio 44129 4499 Broadview Road Cleveland, Ohio 441O9 - 1 - ANN McMANAMON, P.J.: This case stems from a fight in a Parma, Ohio tavern. In its aftermath, Paul Kordich sued Edwin Finkel for battery in Parma Municipal Court. His opponent counterclaimed, also alleging battery. A jury found for both Kordich and Finkel, but only awarded damages to Kordich. Finkel brings this timely appeal raising three assignments of error,/1\ which challenge the weight of the evidence and the failure of the jury to award him damages. Our review of the record compels affirmance. Kordich arrived at Winners Tavern around midnight on January 27, 1988 with a co-worker, Ron Cubic. Kordich planned to meet Matt Pokrandt, a bartender there. Upon arriving, Kordich noticed Finkel, who was accompanied by his wife, with Pokrandt and Jim Radwan, a friend of Finkel's. Kordich bought a round of drinks for everyone. Kordich testified he and Finkel discussed money Finkel owed him. The conversation escalated into an argument. Kordich averred he went to the restroom with Finkel following. Once inside, Finkel shoved Kordich from behind. Upon leaving the restroom, Finkel allegedly confronted Kordich at the bar and made a "motion with his hands" purportedly to strike him. Kordich raised his left hand to block the blow. Kordich walked away but the two men continued to exchange menacing glares. At that point, according to Kordich, Finkel /1\ See Appendix. - 2 - picked up a beer bottle and threw it at Kordich from a distance of fifteen feet. The bottle struck Kordich in the forehead and shattered. Thereafter, Kordich confronted Finkel and grabbed him, but was in turn grabbed by the throat by Radwan who threw Kordich against a nearby bowling machine. Kordich left the bar with Cubic, made a police report, and went to a hospital for treatment. He received stitches for lacerations to his forehead and, as a result of the fight, missed three days' work. Ron Cubic and Dennis Soroczak testified on Kordich's behalf. Cubic stated that, throughout the evening, Kordich and Finkel exchanged words as well as shoves. According to Cubic, when the two men went into the restroom, it was Finkel who entered first. Cubic added that, although he did not actually see the bottle thrown, he heard it shatter, and, "It appeared that something had just came out of [Finkel's] arm." Soroczak told the court he tended bar that evening, having replaced Pokrandt. He, too, heard the bottle shatter, saw Kordich holding his head and Finkel standing in front of him. Edwin Finkel gave a different version of the brawl. He confirmed that he and Kordich argued over money. When the two men got up to go to the restroom, Finkel said he entered first and, although they continued to argue, he denied any physical contact occurred. When they returned to the bar, Finkel said he walked away but that Kordich "sucker punched" him in the face, breaking his nose. The two separated, but minutes later, Finkel claimed he - 3 - went to shake Kordich's hand and was struck again. Finkel did not remember throwing a bottle at Kordich. James Radwan was Finkel's sole witness and he corroborated Finkel's version of the events. He observed the two men engaged in a discussion for fifteen or twenty minutes, and thereupon saw Finkel enter the restroom followed by Kordich. Radwan told the jury he afterwards positioned himself between the two men, facing Kordich with his back to Finkel and said "Okay. That's enough." Just then, Radwan saw a beer bottle "lobbed" over his right shoulder striking Kordich on the head. He admitted grabbing Kordich and shoving him against the bowling machine but only after Kordich struck Finkel the second time. On cross-examination, Radwan admitted that once he and Finkel left the bar, Finkel told him "he couldn't remember" throwing the beer bottle, but added "he couldn't understand why he did it." The jury awarded Kordich $2,900 in compensatory damages, $1,000 in punitive damages, and $2,200 in attorney's fees. Finkel, inter alia, sought compensatory damages for alleged surgery on his nose and lost wages. Although the jury also found in Finkel's favor, he was awarded no damages. - 4 - In his first and third assignments of error, Finkel argues the verdict was against the weight of the evidence. Since both assignments are related, we will address them jointly. In reviewing a challenge to the manifest weight of the evidence a reviewing court will not disturb a judgment supported by some competent, credible evidence going to all the essential elements of a case. C.E. Morris Co v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, syllabus. There is a presumption that the findings of the trier-of-fact are correct. Seasons Coal Co v. Cleveland (1984), 10 Ohio St. 3d 77, 80. The rationale for giving deference to the findings of the trial court is "that the [trier of fact] is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Id. The weight given to evidence and credibility of witnesses are to be determined by the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of syllabus. Finkel argues the essential elements of battery are lacking since there was no evidence that he threw the bottle, or alternatively, that he acted with the requisite intent. An individual is liable to another for battery if: "(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and - 5 - "(b) a harmful contact with the person of the other directly or indirectly results." Restatement of the Law 2d, Torts (1965), 25, Section 13. It is immaterial that the person is not inspired by any personal hostility toward the other person, a desire to injure him, or any intent in bringing about the resulting harm. Id. at comment C. In the present case there is competent, credible evidence supporting the jury's verdict of battery in favor of Kordich. It is undisputed that Kordich was struck in the forehead by a bottle and required medical treatment as a result. Kordich testified Finkel deliberately threw the bottle at him. Although Cubic and Soroczak did not actually see Finkel throw the bottle, Cubic stated it was clear Finkel had just thrown something, while Soroczak observed Finkel standing directly in front of Kordich after he had been struck. Finkel's witness, Jim Radwan, stated that while his back was to Finkel, the bottle was "lobbed" over his right shoulder seemingly coming from Finkel's direction. Finally, Finkel told the court that, after the incident, "Matt [Pokrandt] and Jim [Radwan]" told Finkel he threw the bottle. Accordingly, we find sufficient evidence to show Finkel struck Kordich with the bottle. As to intent, all of the witnesses testified that the two men argued at some point throughout the evening. The record shows that both used profanity and shoved each other. We conclude that, - 6 - based upon the evidence adduced at trial, a jury could reasonably find that Finkel intended to and did hit Kordich with the bottle. Accordingly, the jury's verdict for Kordich is supported by the evidence. The first and third assignments of error are overruled. In his second assignment, Finkel posits the jury erred in finding in favor of his counterclaim for battery, but failing to award any damages. In an action for assault and battery it is not error for a jury to "find the issues *** in favor of the plaintiff, and assess the amount due to the plaintiff from the defendant *** at the sum of ($0) none dollars." Muckus v. Ruggles (1956), 165 Ohio St. 540, syllabus. Finkel testified he had surgery performed on his nose six months after the incident as a result of punch from Kordich. He "did not remember" seeking medical treatment on that particular evening. He also offered no documentary evidence, medical bills or otherwise, to support his claim for damages. Thus, we conclude the jury did not err in not failing to award Finkel damages on his claim. The second assignment of error is not well-taken and the judgment of the trial court is affirmed. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, J. AND KRUPANSKY, J., CONCUR. PRESIDING JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - 8 - APPENDIX Appellant's assignments of error are: I "A verdict for battery cannot be sustained where the necessary element of intent is not supported by the weight of the evidence." II "It is error to return a verdict for battery, yet fail to award actual compensatory damages, even where evidence of actual damages is in evidence." III "The judgment of the jury is against the manifest weight of the evidence." .