Flieger v. Reeb

• Decision Date: 08 June 1978
• Docket Number: No. 2,CA-CIV,2
• Citation: 120 Ariz. 31,583 P.2d 1351
• Parties: Jo FLIEGER, Appellant, v. Harold H. REEB, Appellee-Cross-Appellant, v. Jo FLIEGER and Gussie Flieger, husband and wife, Cross-Appellees. 2573.
• Court: Arizona Court of Appeals

Page 1351

583 P.2d 1351

120 Ariz. 31

Jo FLIEGER, Appellant, v. Harold H. REEB, Appellee-Cross-Appellant, v. Jo FLIEGER and Gussie Flieger, husband and wife, Cross-Appellees.

No. 2 CA-CIV 2573.

Court of Appeals of Arizona, Division 2.

June 8, 1978.

Rehearing Denied July 18, 1978.

Review Denied Sept. 7, 1978.

J. Lavell Harper, Casa Grande, for appellant and cross-appellees

Ash, Reeb & Addington by Fred J. Ash and Cecil P. Ash, Mesa, for appellee-cross-appellant.

OPINION

HATHAWAY, Judge.

This appeal arises from an action for damages brought by Harold H. Reeb, appellee, for an alleged assault upon him with a 30-30 rifle by appellant, Jo Flieger. A jury verdict for appellee in the sum of $2,000 compensatory and $20,000 punitive damages, was remitted to $1,000 compensatory and $10,000 punitive damages upon appellant's motion. Appellee's acceptance of the remittitur is deemed revoked by the appeal. 16 A.R.S., Rules of Civil Procedure, Rule 59(i)(2).

Appellant raises evidentiary and instruction questions on appeal and challenges the jury verdict as resulting from passion and prejudice. On cross-appeal, appellee challenges the remittitur and the dismissal of Gussie Flieger, and thus the community of Gussie and Jo Flieger, husband and wife.

This action arose out of an incident which occurred at a corral, known in the vicinity as the OK corral, located on property where the Fliegers were living and which was the subject of a sale by them to Tony Ash, half-brother of appellee Reeb. Hard feelings had developed between the parties and controversy arose concerning the cattle count in connection with the ranch sale. Jo Flieger asked a range detective and his assistant to come and to have Ash come to look at cattle which Flieger was holding in the corral to determine whether or not they had previously been accounted for in the count. Flieger requested that the persons coming to the ranch bring no guns. Nevertheless, allegedly because of previous threats made by Flieger, Ash and Reeb brought pistols. Reeb's pistol was strapped on when he arrived.

Flieger came to the corral unarmed. Seeing that Reeb was armed, he asked him to take his pistol off. The range detective also asked him to disarm, but Reeb declined, explaining that Flieger had previously made threats. Flieger got into his Jeep and drove up the hill to his house. Reeb and Ash opened the corral gate and drove the cattle out into the field toward the range. Ash strapped on his pistol.

While Reeb was away from the corral and moving the cattle, Flieger returned in his Jeep and got out with a .44 pistol strapped on and a 30-30 rifle in his hands. He cocked the rifle, putting a live cartridge into the chamber, put the weapon to his shoulder and aimed it at Reeb about 25 feet away. Ash pulled his pistol, cocked and aimed it at Flieger and yelled, "If you pull that trigger, you are a dead man." The deputy shouted, "Don't do it, Jo!"

Deputy Kent cautiously walked into the line of fire between Flieger and Reeb. Deputy Scott took Reeb's pistol and holster and Deputy Kent took the rifle from Flieger. Ash gave his pistol to the deputies after Flieger delivered his.

Appellant first contends on appeal that the trial court erroneously admitted on rebuttal a taped conversation between appellant and appellee's brother. The taped conversation was admitted for impeachment of appellant's testimony and appellant was forewarned of its existence and potential use through its listing on appellee's pretrial statement as an exhibit. Admission of the tape during appellee's rebuttal testimony instead of during his case in chief was not a clear abuse of the trial court's discretion. Finding no manifest abuse of discretion or prejudice, we will not intercede. Jansen v. Lichwa, 13 Ariz.App. 168, 474 P.2d 1020 (1970).

Appellant also complains that he was prejudiced by the admission of evidence that was illegally obtained. Reference is made to the testimony of Mr. Chittendon, a private investigator for Reeb, who posed as a newspaper writer and visited with the Fliegers in March and April of 1974, some nine months prior to the filing of this lawsuit. Appellant contends the evidence was obtained by fraud in that Chittendon misrepresented that he was a newspaper man, and was in violation of DR 7-104 of the Code of Professional Responsibility. Rule 29(a), Rules of the Supreme Court.

"DR 7-104. Communicating with One of Adverse Interest

(A) During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so."

This disciplinary rule is inapplicable because the Fliegers were not parties to this action until January 27, 1975, when the complaint was filed. The record does not indicate that appellee or his counsel had knowledge that the Fliegers were represented by counsel at the time. Appellant has cited no authority condemning the use of a private investigator in the manner Chittendon was employed.

Both parties challenge the judgment on appeal for reasons we later discuss. At the outset, we note that the remittitur was granted for the following reasons:

"The Court is of the opinion that the damages awarded were the result of passion and prejudice; that the plaintiff to some extent provoked the incident and that the Court may have committed error in the giving of a repetitious instruction . . ."

If the record discloses that the jury verdict was the result of passion and prejudice, as the trial court determined, a new trial should have been granted, Stallcup v. Rathbun, 76 Ariz. 63, 258 P.2d 821 (1953), and a remittitur should not have been allowed. Miller v. Condon, 66 Ariz. 34, 182 P.2d 105 (1947); Perazzo v. Ortega, 32 Ariz. 154, 256 P. 503 (1927); Perazzo v. Ortega, 29 Ariz. 334, 241 P. 518 (1925). If, however, the case was properly submitted to the jury, the verdict will not be deemed the result of passion and prejudice if within the range of credible evidence. Hardy v. Southern Pacific Employees Association, Inc., 10 Ariz.App. 464, 459 P.2d 743 (1969).

The trial court inadvertently read a second punitive damages instruction submitted by appellee. No complaint is made that the instruction is an inaccurate statement of the law, rather appellant complains that reading both instructions over-emphasized punitive damages. Upon appellant's motion to remit the judgment to $500 compensatory and $2,000 punitive damages or grant a new trial, the trial court remitted the judgment to $1,000 compensatory damages and $10,000 punitive damages and granted appellant 20 days to accept the order of remittitur or a new trial with respect to damages only would be granted. Appellee accepted the remittitur, but this appeal and cross-appeal followed.

The first instruction on punitive damages was:

"You are further instructed that, in addition to any actual or compensatory damages, if you find that there were any, you may award exemplary damages to the plaintiff or the counter-defendant, if you find that the wrongful acts, if any, causing such actual damages were committed in a wanton, wilful, or reckless manner, or in case you find such acts were committed wantonly, recklessly, and without due regard to the rights of the parties, or if you find that wrongful acts of the parties, or either one of them, causing such damages were from any bad motive or so recklessly done so as to imply a disregard for the obligations and rights of plaintiff."

The second instruction was:

"Punitive damages are, as you will readily understand from the wrong itself, those which punish, punish one for his unlawful act, and are not only intended to punish the wrongdoer, but...