Ogodziski v. Gara

• Decision Date: 08 February 1921
• Citation: 181 N.W. 231,173 Wis. 380
• Parties: OGODZISKI v. GARA ET AL.
• Court: Wisconsin Supreme Court

173 Wis. 380

181 N.W. 231

OGODZISKI

v.GARA ET AL.

Supreme Court of Wisconsin.

Feb. 8, 1921.

Appeal from Trempealeau County Court; Hans A. Anderson, Judge.

Action by Mary Ogodziski against Andrew W. Gara and others. From judgment for plaintiff, defendants appeal. Reversed, and cause remanded for new trial.

Action to recover damages for an alleged assault growing out of the same acts complained of in the case of the husband, Adam Ogodziski, against the same defendants, decided herewith. In this case the jury returned a verdict assessing plaintiff's compensatory damages at $4,000 and her punitory damages at $4,000. From a judgment for the above sums and costs entered in favor of the plaintiff, the defendants appealed.John Kulig, of Independence, Ole J. Eggum, of Whitehall, and Jesse E. Higbee, of La Crosse, for appellants.

Cowie & Hale, of La Crosse, and John A. Markham, of Independence, for respondent.

VINJE, J.

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

[1] 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. 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.

[2][3][4] Since there must be a new trial in this case also for reasons stated in 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...