Page:North Dakota Reports (vol. 48).pdf/147



Appeal from the District Court of Ransom County, Graham, J.

Reversed and remanded for a new trial.

Kvello & Adams and Ray W. Craig, for appellants.

“Where exemplary or punitive damages are sought in an action for false imprisonment, proof of good motives may go in mitigation. * * * Where more than actual damages are claimed, defendant may show that he acted prudently, wisely or in good faith. III Elliott, Evidence, § 2109; note 54 A. D. 270; Livingston v. Burroughs, 33 Mich. 511.

The damages awarded against all three defendants were excessive, and appear to have been given under passion or prejudice. Wagoner v. Bodal, 37 N. D. 594; Reid v. Ehr, 36 N. D. 552; Waterman v. Soo Ry. 26 N. D. 540; Carpenter v. Dickey, 26 N. D. 176.

Curtis & Remington, C. G. Bangert, and E. T. Burke, for respondents.

, J. This is an appeal by the defendants Underwood and Harper from an order denying a motion for a new trial made on behalf of all the defendants Underwood, Harper, and Moran. The action is one to recover damages for false imprisonment. The plaintiff recovered a judgment of $4,000 and costs. The facts are as follows:

The plaintiff, for some time prior to June 27, 1919, had been the owner of a certain dwelling house in the city of Enderlin. The house was rented to the defendant Harper, who appears to have been a tenant from month to month. In the spring of 1919, the plaintiff and her husband, C. B. Mason, were desirous of obtaining possession of the property for the purpose of making their home there. A notice to vacate was served upon Harper, but he refused to give up possession, whereupon an action in forcible entry and detainer was started in justice court before C. H. Potter, justice of the peace. This case was tried before the justice and a jury on May 28, 1919. The jury rendered a verdict for the defendant Harper, but it seems that upon the announcement of the verdict one of the jurymen stated in substance that his agreement thereto was conditional, whereupon the justice ordered a new trial. The action remained pending, but was not again tried. On June 16th a written stipulation