Grisim v. Milwaukee City Railway Co.

Cassoday, J. Exception is taken to the sufficiency of the special verdict, but as we have concluded to reverse the judgment on other grounds, and different questions may be submitted upon a new trial, it is unnecessary to consider here such alleged insufficiency. The plaintiff was the first Avitness sworn and' examined on the trial. After she had given a summary of the occurrence, she was asked by her counsel, on her direct examination, this question: “Well, go back to where you got on the car. Will you please re-, late now what occurred from the time you stopped the cat, or signaled the car to get on, and what occurred,— how this accident happened? ” To that question the defendant’s counsel objected to what occurred when she got onto the car, as immaterial and irrelevant, and submitted that it cut no figure in the case. The plaintiff’s counsel thereupon stated: “ I submit it does, because I intend to shotv just what I stated in my opening.” The objection was thereupon overruled by the court, and the defendant excepted. We are constrained to hold that such ruling was erroneous. The manifest purpose of the question was to prove malice on the part of the defendant’s driver or employee. The answer of the witness did tend to prove such malice, and [22] such proof naturally tended to enhance the damages found. It will be observed that the plaintiff was only seeking to recover compensatory damages. The court, in effect, charged the jury that the plaintiff’s recovery must be limited to such damages. The motive of the defendant’s driver or employee, therefore, was not in issue, but entirely immaterial. Even in an action to recover exem plary damages from a corporation by reason of injury caused by the malicious conduct of its employees, it is necessary, in addition to such malice, to prove that the same was ratified by the corporation. The only possible theory for admitting such evidence in a case like this is where the evidence showing malice constitutes a part of the res gestae. Declarations are only admissible as a part of the res gestee when they are contemporaneous with the transaction which is the subject of the action, and which they serve to characterize. Sorenson v. Dundas, 42 Wis. 642; Felt v. Amidon, 43 Wis. 467; Prideaux v. Mineral Point, 43 Wis. 513; Nash v. Hoxie, 59 Wis. 384; Goff v. Stoughton State Bank, 78 Wis. 111. The transaction in the case at bar, which constitutes the subject of the action, is the alleged negligence of the defendant’s driver or employee which caused the injury. That transaction did not commence until after the ringing of the first bell, and that was after the car had reached Sixteenth avenue. It certainly did not commence at Third avenue, before the plaintiff got upon the car. True, the contract of carriage was made when the plaintiff got upon the car at Third avenue. But a conversation at the time of making a contract cannot be regarded as a part of the transaction constituting the subsequent breach of it. Besides, this is not an action on contract, but in tort. By the Gowrt.— The judgment of the superior court is reversed, and the cause is remanded for a new trial.