Elfers v. . Woolley

Haight, J. This action was brought to recover the damages sustained by reason of an assault and battery committed by the defendant upon the person of the plaintiff. Upon the trial the plaintiff testified that the night before the assault the defendant sent for him and had a conversation with him. He was then asked for the conversation. This was objected to by the defendant. The objection was overruled and the witness answered, “He said here, old man, I want you to give up the lease. I will pay you for what you have done and a few dollars besides. You shall give up the store. The Chinaman wants the store. You are a poor man. The Chinaman is rich.” It is now contended that this evidence was improperly received, and for that reason that the judgment should be reversed. After the evidence was objected to the plaintiff’s counsel made a statement to the effect that he proposed to show malice, and the court stated that it might be material on that point. The evidence had but a slight bearing upon the question at issue. The most that can be claimed for it is that it showed the foundation or commencement of the quarrel which resulted in the assault complained of. It is true the complaint does not, in terms, allege that the assault was made with malice. It' does, however, allege facts from which malice may be inferred. It alleges that the assault was made without any cause or provocation, and that it was made with great force and violence. The rule is well settled in this state that in an action for an assault and battery all the circumstances immediately connected with the transaction tending to exhibit *296 and explain the motive of the defendant is competent for the purpose of showing whether he acted maliciously or in an honest belief that he was justified in what he did. ( Voltz v. Blackmar, 64 N. Y. 440.) We are, therefore, of the opinion that the evidence was competent. After the charge of the court had been made to the jury, the defendant’s counsel asked the court to charge that there is no method by which the defendant could compel the plaintiff to submit to a medical examination. The court replied: “ I believe orders have been made in such cases that the plaintiff should submit to a medical examination. I have not examined the question of law, and I do not think it necessary to charge expressly on that, but such orders have been made by the courts, and certainly I cannot say that you could not have done it if you had made the attempt.” The defendant excepted to the refusal of the court to charge as requested. We do not understand that there is any provision of the statute requiring a party to submit to a medical examination before trial, but we do not think the refusal of the court to charge upon the subject calls for a reversal of the judgment. The court frankly stated that it had not examined the question, and did not undertake to state whether such an examination could be compelled. The request called for the court to charge an abstract proposition of law that was not involved in the case or necessary for its determination. The defendant, npon the trial, had called out the fact that the plaintiff was asked to submit to'a medical examination and that he refused. This much was before the jury, with such inference to be drawn from it as was proper. The question as to whether the defendant could have compelled such examination was of no consequence, and did not have any proper bearing upon the determination of the facts involved. The defendant’s counsel further asked the court to charge the jury that they have a right to infer from that fact that the examination would not disclose any fact favorable to the plaintiff. We understand this request to refer to a medical examination of the plaintiff. The court replied to the effect *297 that the jury might give it such weight as they think it ought to have, etc. The defendant ought not to complain on account of this charge, for it was as favorable to him as he was entitled to have. We are, consequently, of the opinion that no error was committed upon the trial, and that the judgment should be affirmed, with costs.