Haberman v. Gasser
104 Wis. 98
Wis.
1899
Check Treatment
WiNsnow, J.

A motion for nonsuit was made in this case on the ground that the evidence showed that the plaintiff had elected to rescind the contract for the purchase of the meat and receive back the consideration paid, and had thereby waived any other remedy. This motion was properly overruled, for a plain reason. If any contract was rescinded, it was a contract with the husband. The plaintiff, in purchasing family supplies, was acting as agent of her husband; and hence any contract made by her was in legal effect her husband’s contract, and the rescission thereof could not affect her right to damages in a tort action.

The remaining exceptions relate to the charge of the court. *101The defendant requested the following instructions, which were refused: “ (1) This is a civil action brought to recover damages for an alleged injury which the plaintiff claims to have suffered on account of eating diseased and unwholesome meat purchased from the defendant. (2) The gist of the action is the selling of the diseased or unwholesome meat as good and wholesome, and the injury resulting from the eating of the same.” These instructions were appropriate statements, and it would have been error to refuse them had they not been covered by the general charge; but examination of the charge shows that they were substantially covered thereby, and henceit was not error to refuse them.

The court charged that it was an offense, under the statutes, for a person to sell unwholesome meat, knowing, or having good reason to believe, it to be unwholesome. Stats. 1898, sec. 4601y. This was a correct statement of the law, but it is claimed that it was erroneous, because no such question was involved in this action, and that it was prejudicial, because tending to put the defendant in the attitude of a criminal. There is certainly force in the argument, and we should have been better pleased had the instruction not been given. However, we cannot regard it as distinctly prejudicial. Doubtless the court would have called attention to the fact that the present action was not a criminal action, had a request to that effect been made. If the verdict gave evidence of the influence of passion or prejudice, the question would become a serious one.

Certain instructions as to the burden of proof and the preponderance of the evidence were asked by the plaintiff and refused. As they were, in substance, covered by the general charge, however, it becomes unnecessary to state them at length.

We think, however, that there was error committed in that part of the charge as to exemplary damages, which necessitates reversal of,the judgment. The court charged *102that it was the privilege of the jury, in this case, to award to the plaintiff exemplary damages, and then defined exemplary damages as being damages by way of punishment or example, which, in a certain class of cases, within which this case comes, the jury may award to the plaintiff, in their discretion, in addition to compensatory damages. By this instruction the jury must have understood that the court had decided, as matter of law, that this particular case was one ■calling for the imposition of exemplary damages in their discretion. It is entirely clear that the question whether exemplary damages ought to be awarded at all in this case was one for the jury, under proper instructions. The jury should have been told the conditions under which they would be authorized to give exemplary damages, namely, that such damages were only to be awarded in case the act complained of was malicious or vindictive, or evinced such gross or criminal negligence and disregard of the rights of others as in law was equivalent to malice. Pickett v. Crook, 20 Wis. 358.

By the Court.— Judgment reversed, and action remanded for a new trial, with the option to the plaintiff to remit the' amount of exemplary damages awarded at any time within thirty days after the record is remitted to the trial court, in which case judgment is to be entered for the plaintiff for the compensatory damages awarded by the verdict.