The first instruction given to the jury at appellee’s request upon the trial below assumes the existence of facts which should have been left to the 'jury, and is in conflict with the twenty-eighth section of the practice act. Whether this was a case for exemplary damages was a question for the jury and not for the court. The jury may have understood this instruction as determining this question for them.
For this error the judgment must be reversed and the cause remanded for a new trial.
If the motion for new trial had been presented in the court below, as directed by that court, there is little doubt that the relief now granted here would have been given in that court, and the expense and delay of this appeal would have been avoided. Because of this neglect, the appellant will not be allowed his costs in this court or in the court below.
The court below is instructed to tax the costs, which have been made by appellant in that court, to him.
Reversed.