Glenn v. Chenowth

• Decision Date: 16 January 1951
• Docket Number: No. 5241,5241
• Citation: 226 P.2d 165,71 Ariz. 271
• Parties: GLENN et al. v. CHENOWTH.
• Court: Arizona Supreme Court

Page 165

226 P.2d 165

71 Ariz. 271

GLENN et al. v. CHENOWTH.

No. 5241.

Supreme Court of Arizona.

Decided Jan. 16, 1951.

Marks & Polley, Bisbee, for appellants.

I. B. Tomlinson, Bisbee, for appellee.

DE CONCINI, Justice.

Amos Chenowth, plaintiff, brought an action against Joe Glenn and Fred Darnell alleging that Darnell made an unlawful, wanton attack and assault upon plaintiff; that while he was defending himself against Darnell, Glenn made an unprovoked assault on plaintiff from the rear by striking plaintiff's head with his fists. Chenowth alleged $5,000 damages. Upon a trial by jury he was awarded judgment of $500 against each defendant.

The circumstances giving rise to this lawsuit were as follows: All three participants are cowboys. They were attending a rodeo in Douglas on April 4, 1948 as contestants. Chenowth and one Sanders were partners in a team-tying event. Chenowth roped the head of the animal; Sanders missed his first loop at the heels but caught the second loop and stretched the animal prone. Chenowth dismounted and in tying the animal's feet used an unusual type knot. The field judge declared the knot illegal. Darnell who was acting as arena director passed final judgment and upheld the field judge's decision. However the fact that it was an illegal knot made no difference in the possibility of their winning any prize money because they had consumed too much time when the first loop was missed and for that reason were outclassed.

As they were leaving the field Chenowth rode alongside Darnell and called him a ___ ___ liar in reference to an asserted previous statement made by Darnell to Chenowth that it was okay to use that type of a knot. After the rodeo events were over they met at the cattle barns to examine the rule book on this question. When the argument as to the knot's illegality was settled, Darnell took Chenowth by the arm and demanded an apology or in the alternative, ordered him to take off his glasses. Chenowth handed his glasses to a bystander and 'squared off' for a fight. The evidence is not clear as to who hit the first blow. Suffice it to say that from the time Chenowth removed his glasses they were both ready, willing and able to fight. While they were fighting over a space of about 20 to 30 feet, Darnell back Chenowth towards the front bumper of a car. It was at this stage of the fight that Glenn appeared. The evidence is conflicting as to his part in the fight. A few minutes later a deputy sheriff interceded and stopped the fight.

The defendants Glenn and Darnell appeal and assign 10 errors of the trial court.

Defendants' assignments of error 3 and 5 go to plaintiff's requested instructions 5 and 6 respectively as follows:

'5. You are further instructed there is, ordinarily, no duty to retreat when attacked especially where immediate action seems necessary.

'6. You are further instructed that all persons participating in an unlawful or unjustified assault or an unlawful and unjustified assault and battery are jointly and severally liable in damages to the person assaulted.'

Defendants contend that instruction No. 5 has no application to the facts in this case and is merely an abstract statement of law. This instruction is taken word for word from 6 C.J.S., Assault and Battery, § 18, Self Defense, pg. 813. While it is a correct statement of the law it has no application here because neither party relied on self defense. Abstract propositions of law even though correct are not favored in Arizona. Butane Corp. v. Kirby, 66 Ariz. 272, 187 P.2d 325.

The instruction was susceptible of conveying the impression to the jury that the trial judge may possibly have thought that Chenowth had been attacked by Darnell. While the numerical weight of the evidence is that Darnell struck the first blow, there is no evidence that he took Chenowth by surprise. The evidence was that Chenowth handed his glasses to Keyes, both parties were 'squared off' and in sparring positions and that they hit each other's fists before the first blows connected. The jury may have believed that the instruction was calculated to impress them that it was the judge's opinion that Darnell was the attacker. The giving of such an instruction constituted error.

Chenowth's testimony on cross-examination in part is as follows:

'Q. What did you do then? A. I took off my glasses and handed them to a man and he hit me.

'Q. You didn't have your hands up or anything? A. When he throwed my----

'Q. At what stage did you throw the first blow? A. I throwed the first blows.

'Q. Did these all take effect? A. I wouldn't swear to that.

'Q. You might have missed some of them? A. That's right.' (Emphasis supplied.)

Chenowth's answer underlined above indicates that he was asking a question. However we did not hear the inflection of his voice. If there was any doubt as to what he meant, that was for the jury to decide without an instruction which might indicate the trial judge's opinion.

Defendants contend that instruction No. 6, supra, is faulty in several respects: a) It is an abstract statement of law. b) It eliminates the necessity of the jury finding a concert of of action between Darnell and Glenn.

The instruction is taken from the first two sentences of 6 C.J.S., Assault and Battery, § 27b, pg. 831. But the third sentence of that section reads as follows: 'There can be no joint liability, however, unless there is concert of action between those who are charged jointly, * * *.' In this case Chenowth...