Ogodziski v. Gara

173 Wis. 380 | Wis. | 1921

Vinje, J.

The principal questions raised by the appeal herein are also raised in the case of the husband against the same defendants {ante, p. 371, 181 N. W. 227), and their treatment in that case by the Chief Justice will be considered applicable to this case.

Since the jury in this case found punitory damages it will become necessary to consider defendants’ claim that it was error to receive testimony as to their wealth. We have recently had occasion to hold that in the case of two or more defendants the reception of such testimony is error on the ground that evidence as to the financial ability of one affects the amount of punitory damages assessed against all, and hence, since each one is liable for the whole judgment, he may be unjustly mulcted in damages because of the-wealth of a codefendant, though he himself may be a poor man. See McAllister v. Kimberly-Clark Co. 169 Wis. 473, 476, 173 N. W. 216, and cases cited. We see no reason to change the rule there adopted. The reception of such testimony was prejudicial error.

Since there must be a new trial in this case also for reasons stated m the case of the'husband, we deem it proper to briefly refer to some errors- in the charge to the jury to the end that they may not recur in -the next trial if one be had.The Court instructed the jury-: “She is entitled to recover such damages as will compensate for the physical pain and mental suffering she has endured in the past and which she may have to endure in the future.” This should have been, which she is reasonably certain to endure in the future. The expression “you must be satisfied to a reasonable extent" should have been, you must be satisfied to a reasonable certainty. The charge “she is entitled to damages for the indignity,” referring-'to punitory--damages, should-have been, you- may assess damages -for the indignity, etc.; arid the expression, “the amount of such damages (punitory) is governed by the wealth of the party” should have been, the wealth of the party is an element to be considered in assessing punitory damages. It is not necessary to determine whether or not the errors here briefly alluded to are prejudicial.- The prejudicial error as to the burden of proof is in this case also as well as in the husband’s case, and that together with others herein treated require a reversal of the judgment.

By the Court. — Judgment reversed, and cause remanded for a new trial.