[82 Ariz. 146] Byrne & Byrne, Prescott, Jerry Geisler, Beverly Hills, Cal., W. Francis Wilson, Phoenix, for appellants.
Christensen & Anderson, Flagstaff, for appellee.
LA PRADE, Justice.
Appeal from a judgment awarding compensatory and punitive damages in favor of plaintiff-appellee against defendants-appellants, for assault and battery.
Plaintiff's complaint charged both defendants, husband and wife, with a malicious assault and battery upon him at a time when he was a business visitor and invitee upon the premises of defendants. The effect of the allegation was that defendants were joint tort feasors. Defendants denied that they or either of them were guilty of the claimed assault; denied the invitee allegation and alleged that plaintiff was a trespasser. Defendants further alleged that plaintiff was the aggressor in the altercation that ensued, and admitted that Buck Rodgers struck plaintiff in claimed self-defense-'and in so doing did not use more force than was reasonably necessary under the circumstances to protect himself from injury * * *.'
Plaintiff's evidence was to the effect that about 9:30 p. m. on the date in question he, together with his brother and sister and her husband, stopped at defendants' combination trading post, store, restaurant and gas station, located on U. S. Highway 89, approximately fifty miles north of Flagstaff, Arizona, on the Navajo Indian Reservation. This establishment was admittedly owned by defendants, and operated by them and their children as a community property enterprise. The purpose of the stop was to take on gasoline, eat lunch and use the rest rooms. They parked their car adjacent to the gas pumps and were met by defendants' sons. A member of plaintiff's party inquired as to the whereabouts of the rest room and was informed that the rest rooms were locked up for the asserted reason that water had to be hauled thirty miles. Upon further inquiry as to what should be done in a case like that, defendants' son told them to 'go out there anywhere or around the building'. Plaintiff testified that he went around the building to a darkened area some thirty feet therefrom, and proceeded to urinate, at which [82 Ariz. 147] time Buck Rodgers opened the back door, turned a flashlight on the plaintiff, and told him to 'get going out of there.' Rodgers then walked toward the plaintiff, keeping the flashlight on him, and again demanded that he 'get going'. Plaintiff insisted that he was going to finish what he was doing, at which time Rodgers hit him in the mouth with the flashlight, and followed up by hitting him on the head with a rock. During these assaults plaintiff attempted to shield his head with his arms to protect his skull, soft from a prior brain tumor operation. Buck Rodgers' wife, codefendant, then appeared on the scene with a board with which she bludgeoned the plaintiff. As the struggle continued Rodgers' son handed him a sharp rock with which Rodgers struck plaintiff on the arm, tearing his flesh to so great an extent that tne bone was exposed. When the beating ended plaintiff had sustained severe bodily injuries and was staggering, badly battered and bleeding profusely. In addition to the torn arm plaintiff's injuries included a crush would over his lfet temple, a fourinch vertical laceration on his head, and a brain concussion. At the trial one year after the assault a medical expert expressed the opinion that permanent brain damage had resulted. Notwithstanding the gravity of plaintiff's injuries and the fact that medical facilities were some fifty miles distant, the defendants refused, even when begged, to lend first aid assistance. Instead, appellants insisted that the trading post was
not a first aid station, and ultimately directed plaintiff's party to leave at gun point.
Buck Rodgers testified that his attention was called to the presence and conduct of plaintiff by his daughter who had observed the plaintiff relieving himself behind the building, in a well-lighted area visible to his cabin guests and his family; that he requested plaintiff to cease his offensive conduct and leave the premises; that plaintiff initiated the altercation by striking and kicking him, and that he acted solely in self-defense. Mrs. Rodgers denied that she struck plaintiff with a board or in any manner participated in the episode, and explained her presence as that of an innocent bystander. The testimony of the defendants was corroborated by their grown children, a daughter and two sons.
The cause was tried to a jury which returned a verdict in favor of the plaintiff. Judgment was entered against the defendants, Buck Rodgers and Betty Zane Rodgers, fixing compensatory damages at $15,000 and a like amount for punitive damages. From the judgment entered on the verdict and denial of a motion for new trial, this appeal was taken.
Appellants have presented eight assignments of error in their endeavor to secure a reversal of the judgment. Appropriate consideration will be given to each.
[82 Ariz. 148] Under assignment of error No. 1 appellants assert that the trial court erred by refusing to submit separate forms of verdict to the jury, contending that this deprived the jury of its prerogative of finding in favor of one joint tort feasor and against the other. We believe that this assignment is well taken in view of the issues presented by the pleadings and evidence. Plaintiff charged the defendants as joint tort feasors, which allegations were denied by each of the defendants. In addition to this pleaded defense, defendants injected into the trial, as a defense, the right of Buck Rodgers to use such force as was reasonably necessary to eject the plaintiff from the premises to prevent him from indecently exposing himself, if the jury so found. At the instance of defendants' counsel the court instructed the jury on this defense, its applications and limitations. Defendant Betty Rodgers, in addition to her written denial, substantiated this denial by her oral testimony. On this issue made by her she was entitled to have submitted to the jury a form of verdict finding in her favor if the jury concluded that she did not personally assault plaintiff, as alleged, or aid or abet her husband if they concluded that her husband assaulted plaintiff. MacDonald v. Perry,32 Ariz. 39, 46, 255 P. 494; Ramirez v. Chavez,71 Ariz. 239, 226 P.2d 143. The joint and several judgment entered against her has the ...