Glenn Copple and Udall W. Pace of Yuma, for appellant.
Byrne & Green, of Yuma, for appellee.
Phelps, Justice. Udall, C. J., and Stanford, DeConcini, and La Prade, JJ., concur.
[71 Ariz. 240] The facts out of which this legal controversy arose are as follows: On March
7, 1948, Jesus Ramirez, appellant, was seriously injured by being struck by a beer bottle either thrown by or in the hands of one Alfonso Gill. Shortly after dark on that date Ramirez arrived at the store of Saturnino Chavez, appellee herein, located in the Gila Valley in Yuma County. Ramirez was looking for a man by the name of Rodriguez from whom he desired to borrow some money. He was accompanied to Chavez's store by his brother-in-law, Raoul Argomanez, one Esteban Casias and his small son. Ramirez and his associates had drunk at least three bottles of beer each during the afternoon before leaving home and he was sitting at the Chavez bar drinking another bottle with his friend Rodriguez when Chavez entered the store. According to Ramirez the first thing Chavez said to him was that he was going to put him out. There is a great deal of evidence to the effect that Ramirez at the time was using profanity and talking in a loud and threatening manner. The gravamen of his complaint was that some acquaintance of his who was an elderly man had been mistreated recently prior thereto while in the Chavez store. Ramirez denied the use of profanity or that his conversation was loud or threatening but admitted that he and Rodriguez were talking about the mistreatment of the elderly gentleman at the time he was informed that he would be put out. Upon being removed from the store by Chavez which was accomplished by Chavez taking him by the left arm and leading or pulling him out (Ramirez offering no resistance whatever) and while Chavez still had hold of him some 12 or 15 feet from the front door (some witnesses said 12 or 15 paces) one Alfonso Gill came up from behind Chavez and struck Ramirez between the eyes with a beer bottle tearing the left eye out of its socket and necessitating its permanent removal. The other eye was also seriously injured.
Ramirez brought an action in the superior court of Yuma County against Chavez and Gill alleging an unlawful assault and battery upon his person by defendants and further alleging that defendants were at the time acting in concert with each other and asked for damages for the injury sustained. The cause was tried to a jury and a verdict in the sum of $ 4000 was returned in favor of Ramirez and against [71 Ariz. 241] both defendants. Judgment was entered thereon. Thereafter on motion of defendant Chavez the verdict and judgment as to him was ordered set aside by the court and it was further ordered that judgment be entered, notwithstanding the verdict, in favor of Chavez. From this order and judgment plaintiff Ramirez appeals to this court. No appeal was taken by defendant Gill.
Ramirez presents two assignments of error, as follows:
1. The court erred in granting the motion of appellee Saturnino L. Chavez to set aside the judgment entered upon the verdict as to him upon the grounds (a) that the order is contrary to the law and the facts; (b) that plaintiff's evidence supported the verdict; (c) that there was substantial evidence (1) that Chavez and Gill were joint tort-feasors, (2) that Chavez and Gill were acting in concert with each other in committing the unlawful assault, (3) that Chavez actually participated in wrongfully causing appellant's injury, (4) that Chavez aided and abetted Gill in committing the unlawful assault and battery; (d) that there is evidence that the wrongful and tortious acts of Chavez concurred with the wrongful and tortious acts of Gill resulting in the injuries to appellant Ramirez.
2. The court erred in ordering judgment entered in favor of appellee notwithstanding the verdict for the same reasons set up in assignment No. 1.
We will discuss together the grounds upon which the assignments are based. It is not disputed anywhere in the record that the serious injuries sustained by Ramirez were inflicted by Alfonso Gill either by striking him with a beer bottle held in his hand or by throwing it at Ramirez while only a few feet away. As stated above, Gill did not appeal from the judgment of the trial court against him. Therefore the sole ...