
    Daniel D. Dunkle, Respondent, v. Charles A. McAllister, Appellant.
    
      Physician—what testimony of a plaintiff suing for an assault does not entitle the defendant to examine the plaintiff’s physician.
    
    In an action to recover damages for an assault and battery, in which an issue ■ arises as to whether the injuries received by the plaintiff were caused by a rifle bullet or by a blow from the rifle, the fact that the plaintiff tells the character of the injury does not operate as a waiver of the provisions of section 834 of the Code of Civil Procedure and entitle the defendant to call the physician who attended the plaintiff to testify, against his objection, that the injuries were the result, not of a gunshot wound, but of a blow.
    Appeal by the defendant, Charles A. McAllister, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 23d day of May, 1901, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    The action is in the nature of assault and battery. The plaintiff claimed that defendant shot him with a rifle. The plaintiff received a serious injury, but defendant claimed it was the result of a blow with the rifle and not from shooting.
    
      Charles A. Stone and A. M. Mills, for the appellant.
    
      Henry M. Eldredge, for the respondent.
   Kellogg, J.:

The case, so far as determining the amount of damages suffered and whether or not the injury was inflicted by the defendant in self-defense, is peculiarly one for a jury. There is not in the record anything upon which the court on this appeal can predicate passion or prejudice on the part of the jury. It may he true that the verdict is unusually large- for a case of this character, hut the circumstances as narrated by the plaintiffs witnesses are unusual and the injury considerable. The case cannot, therefore, be properly reversed on the ground that the verdict is excessive or on the ground that it is against the weight of evidence.

The appellant raises a single question of law on the exclusion of the evidence of the plaintiff’s physicians, who were produced by defendant to prove that in their opinion, formed from an examination of the wound, while attending plaintiff as a patient, the wound was not a gun-shot wound, but the result of a blow. I think this was material testimony and bore directly upon the question of punitive damages within the discretion of a jury. This evidence being objected to by plaintiff was excluded under section 834 of the Code of Civil Procedure. In this I do not think the court erred. No court, I believe, has yet gone so far as to hold that it is a waiver of this right to enjoin secrecy in an attending physician, when all that can be said is that" the patient himself became a witness and told the character of the injury he was suffering from. That appears to be all the plaintiff did in this case. The nearest reported case to this in its facts is Treanor v. Manhattan Ry. Co. (28 Abb. N. C. 47), but the case was condemned by the Court of Appeals in Morris v. Railway Co. (148 N. Y. 93). All the plaintiff says on his direct examination in this case, having reference to any physician, is, Dr. Yedder came and put plasters on,” and it was not sought by defendant to deny this statement by the testimony of the physicians.

This judgment should be affirmed, with costs.

All concurred, except Smith, J., not sitting.

Judgment and order unanimously affirmed, with costs.  