[77 Ariz. 396] V. L. Hash and Virginia Hash, Phoenix, for appellant.
Moore & Romley, by Anthony T. Deddens, Phoenix, for appellee.
This is an appeal by plaintiff-appellant Charles Picow from a judgment entered after an instructed verdict in favor of defendant-appellee, Clarence E. 'Teak' Baldwin, and from a denial of plaintiff's motion for a new trial. We shall refer to these parties as plaintiff and defendant.
Plaintiff's complaint stated a claim for relief for an assault alleged to have been committed upon him by defendants Baldwin, John Doe, and Richard Roe. The fictitious defendants were subsequently identified as Jack B. Bradshaw and Bud E. Linderman, but were never served with summons nor did they make any appearance in the case. However, their depositions were taken and admitted in evidence as a part of defendant's case, though for some undisclosed reason
the depositions are not part of the record before us.
Plaintiff's theory of his case is well stated in paragraph III of his complaint, which reads:
'That on or about the 11th day of April, 1950, at the hour of 11:45 P.M. of said day plaintiff entered into the bar and cafe of the defendant Teak Baldwin, and at the said time and place and without any lawful excuse, the defendants John Doe and Richard Roe and the said Teak Baldwin, violently assaulted plaintiff; that the defendant Teak Baldwin cursed plaintiff and thereatened plaintiff, and shoved plaintiff, and hit plaintiff in the face and threw him out of the door. That thereupon the defendants John Doe and Richard Roe, acting as the agents of the defendant Teak Baldwin, and under the direction and command of the defendant[77 Ariz. 397] Teak Baldwin, assaulted plaintiff, striking him about the head and face, and knocking him to the ground, kicking him in the stomach and about the body, and inflicted on plaintiff serious and painful injuries which caused plaintiff to become unconscious. That plaintiff begged the said defendants to desist from their attack upon plaintiff, and plaintiff finally escaped from the defendants.'
When the court sustained objections by defendant to certain statements of the plaintiff, counsel for the latter made the following statement:
'Mr. Hash: When a man begins an assault, as we will show Baldwin did on the man, and evicts him from the premises, it makes no difference who joins in it, it is his assault, and he is bound by it because he owes a duty to protect his patrons.'
The trial court pointed out this would change the whole theory of the case, and counsel then indicated an amendment would be made. The following conditions were imposed:
'The Court: If you desire to make that amendment and change the whole theory of the case, I will permit it on the condition that this jury be dismissed and the costs of the witnesses, the defendant's witnesses, be taxed against the plaintiff.'
No amendment was offered, and the case proceeded to trial with plaintiff standing upon the original complaint.
Basically, plaintiff contends he had made a prima facie case of liability on the part of defendant and that it was therefore error to grant the motion for directed verdict. In determining whether plaintiff had made out a case for the jury, we must view the facts most favorably to him. Mackey v. Blakely Oil Inc., 77 Ariz. 169, 268 P.2d 674; Jeune v. Del E. Webb Constr. Co., 76 Ariz. 418, 265 P.2d 1076; McClinton v. Rice, 76 Ariz. 358, 265 P.2d 425; Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201.
The evidence shows plaintiff is an artist and in April, 1950, earned his livelihood by drawing the likeness of restaurant patrons and selling them to the subject. He carried on this work at several places, including the 'Steak House' and 'Gilded Cage' night clubs located on North Central Avenue in Phoenix, which were at that time owned by defendant. A few days prior to April 11, 1950, plaintiff had been requested by defendant to take a vacation or go to Palm Springs, California, to work because he had sketched all the regular customers at the night clubs. However, plaintiff did not do so, and entered the 'Gilded Cage' between 10:30 and 11:30 p. m. on the night in question for the avowed purpose of wishing defendant a happy birthday. According to plaintiff, defendant received his greeting [77 Ariz. 398] with several curses, arose from his seat at a booth, grabbed plaintiff by the arm, and ...