Appeal from Superior Court, Maricopa County; Thomas J. Croaff, Judge.
Paul M. Roca, of Phoenix, for appellant.
Hays & Webster, of Phoenix, for appellees.
Udall, Superior Judge. Udall, Stanford, Phelps, and De Concini, JJ., concur. Chief Justice LaPrade being ill, Hon. Don T. Udall, Judge, Superior Court, Navajo County, was called to sit in his stead.
Udall, Superior Judge.
[68 Ariz. 336] In this case Myrtle Marion Jupin sued A. J. Reah to recover damages for personal injuries received by the plaintiff as a result of an alleged assault and battery inflicted on her by the defendant. A trial before a jury, resulted in a verdict giving plaintiff judgment for compensatory and punitive damages from which defendant appeals.
It is alleged in the complaint that the "defendant, without provocation or cause, did, maliciously and with the intention of striking and doing physical harm to the plaintiff, Myrtle Marion Jupin, and with
the further intention of aggravating a physical and nervous condition of the said plaintiff, which said condition was known to the defendant, assault and strike said plaintiff with bodily blows: specifically, that the said defendant knocked the padlock off its hinge and shoved and pushed the plaintiff, Myrtle Marion Jupin, against the door to force it open and gain an entry into said cabin: that thereafter the said defendant did violently kick the said plaintiff on her knee; that he grabbed and twisted her right arm just below the shoulder, knowing that said plaintiff was suffering from a subdeltoid bursitis in the said region, and hurled the said plaintiff against said door, causing her great physical pain and suffering, anguish and shock; * * *." The complaint concluded with a prayer for both compensatory and punitive damages. The defendant answered by general denial and demanded strict proof.
By the first assignment of error defendant complains of the action of the trial court in instructing the jury on the issue of punitive damages and in support of his complaint alleges that the evidence was wholly insufficient to permit any issue of punitive damages to go to the jury.
There is no question under our law but that malice is a basis for punitive damages in an action for assault and battery. Malice may be express or it may be inferred or implied from the nature of the acts complained of and the surrounding [68 Ariz. 337] circumstances. Let us examine the record to determine if sufficient facts were adduced in evidence to justify the trial court in instructing the jury on the question of punitive damages. The plaintiff testified that the defendant "give my hand a shove and knocked the lock from the hasp and forced me through the door * * * My little dog started out from under the bed, and he (defendant) said, 'I'll get her now.' He made a grab for the dog and caught my leg. Then he kicked my left leg and hurled me against the door with my right arm." On the same subject Dale Edward Smith, one of plaintiff's witnesses, testified as follows: "Then he (defendant) pushed Aunty (plaintiff) in and she went up further into the cabin, and he seen the dog and he swung at the dog and he missed and hit Aunty's leg.
"Q. Did anything else happen? A. Then he kicked her and grabbed her by the right arm and threw her against the door."
While it is true the defendant denied that he knocked the lock off the door; that he shoved plaintiff into the cabin; that he struck her on the leg or threw her against the door jamb, yet where there is a conflict in the evidence, as in this case, it is not the duty of the trial judge to determine which of the witnesses are telling the truth. That is the province of the jury. However, it is the court's responsibility to instruct the jury on all phases of the law applicable to various fact situations developed during the course of the trial, and the court in ...