Troplowitz

This appeal is by the plaintiff from a judgment based upon a verdict in his favor for damages in the sum of one dollar in an action for damages for an alleged assault and battery.

The evidence in the case showed that the parties to the affray met in Lick Alley, between Post and Sutter Streets, in the city of San Francisco, and, after a few words, came to blows. The evidence is in conflict as to which of the parties struck the first blow, but the evidence also shows without substantial conflict that the defendant struck the plaintiff in the face, knocking out three of his natural teeth which had theretofore supported other artificial teeth, necessitating considerable dental work and requiring him thereafter to wear a plate; and that he also suffered the consequent physical pain and mental anguish resulting from his compulsion to the wearing of a set of false teeth for the rest of his natural life.

Upon the trial of the ease the plaintiff requested the following instruction: “The court further instructs the jury that in this ease if it believes from the evidence that the defendant committed the assault alleged in plaintiff’s complaint, the jury cannot consider any alleged…