(dissenting). The evidence tended to show that plaintiff was a resident of the town of Henry, in Codington county; that on August 17, 19x4, her husband was arrested upon the charge of unlawfully engaging in the business of selling intoxicating liquors; that a quantity of beer was taken from their home by the sheriff at the'time of the arrest; that in the evening of that day defendant, a resident of Henry, telephoned the sheriff at Watertown and asked if the sheriff got a little black grip at Gamble's containing whiskey; that the sheriff replied in .the negative, and told defendant to get Mr. Ring, the deputy sheriff at Henry, “and go up and see if you can get it”; that defendant said, “You have got a warrant, ain’t you?” that the sheriff replied that he had a warrant for John Gamble, but had no search warrant; that Deputy Ring had no search warrant; that Ring went to the Gamble house with defendant at defendant’s request; thalt they were refused admission- to the ho-us-e by plaintiff, who thereupon locked the door; that defendant thereupon broke in the door and entered the house; that plaintiff threw a spittoon at him; that defendant ordered Ring to arrest and handcuff plaintiff; that the deputy attempted ■to arrest her, and she struck him wilbh a tobacco box; that defendant and Ring finally overpowered her and dragged her ■out of -the house, with her little daughter screaming and crying behind her; that defendant went back in the house and got the grip; that defendant and Ring ‘then dragged and forcibly book her through the streets of Henry to the police station, where they confined her until defendant telephoned to the state’s attorney; that defendant returned -after about 15 minutes and told plaintiff she could go -home if she would behave; that she went ■home in bad physical condition, her anus and body being bruised and! lame for several days thereafter; and that she incurred and paid a physician’s bill- of $13.50. Plaintiff -testified:
*605“After -that night I could: not sleep. The least noise or any one coming in or rapping on the -door in the daytime, I just fly all to pieces and get to trembling. I -have never seen a night’s rest since that time. * * * Sometimes I do not eat a ¡thing for three or four days. Before that I could eat and take some rest, and since that time there has 'been no rest for me. * * * I have gone out very little since then. Any one that would be taken and degraded before the public, I think she should have some proof that it was deserved. If I am degraded that low, I do not want to associate with people and degrade them. I have only gone out since -then where I had particular business.”
One of the most sacred rights safeguarded in our Constitution is:
“The right of- the people to be secure in their persons, bouses, papers and effects, against unreasonable searches and seizures shall not -be violated!.” Const, art. 6, § ii.
The forcible entry by defendant into plaintiff’s house, without a search warrant, and his treatment of plaintiff, certainly amounted to a flagrant violation of that constitutional right.
There is positively nothing in the record to show passion o-r prejudice by the jury, unless such can he inferred -by the size of the verdict. In considering the question of compensatory damages solely, this court, in Davis v. Holy Terror Mining Co., 20 S. D. 399, 107 N. W. 374, said:
“Within- the limits of compensation for proximate detriment the amount recoverable must depend upon the circumstances of each peculiar case, and is left to the good sense and discretion of the jury. In making the estimate the jury should take into consideration the age and condition in life of the plaintiff, the physical injury inflicted, the bodily pain- and mental anguish endured, all -expenses incurred in the ¡treatment of the case, and any and -all damages which it may appear from the evidence have resulted or will result from the injury. Whether the injury is temporary or permanent, and whether a capacity to earn money has been reduced by the accident, may also be taken into consideration. 13 Cyc. 137. And when the amount has been so-ascertained it must stand-, though1 the court might, as a juror, have awarded a different sum. But the estimate must express the honest judgment of fair-m-inded men, and -if the recovery is *606so excessive as to clearly indicate that it was given under the influence of passion or prejudice, a new trial should be granted in order that the estimation may be made by a competent tribunal. * * * It must also be presumed that the jurors were free from passion and prejudice unless there is sufficient difference between the verdict and the amount of recovery warranted by the evidence to compel the conclusion that the 'action of the jury was influenced by improper motives.”
If this cause presented simply the question of compensatory damages, it is certain that we should be obliged to infer passion or prejudice of the jury because of the size oif the verdict, but this cause also presents the question of exemplary or punitive damages in addition to those compensatory.
Section 2292, C. C., provides:
“In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant.”
Upon the former appeal this court said:
“But the complaint alleges that the wrongful acts complained of were done maliciously, and the action is undoubtedly one :n which exemplary or punitive damages may be awarded by the jury.”
Upon the trial the court properly instructed the jury in relation to' exemplary damages. If the jurors believed the evidence on the part of the plaintiff, they were warranted in concluding that defendant was “guilty of oppression or malice,” and in adding to the amount of compensatory damages such sum as in their proper discretion would inflict adequate punishment upon defendant. The evidence, properly admitted under the claim for exemplary damages, tended to show that defendant was worth between $160,000 and $200,000. In view of the evidence in this particlular case, can it be said, solely because of the amount' of the verdict, that compensatory and exemplary damages aggreagting $21,0x3.50 were given by reason of the passion or prejudice of the jury? I do not think so. The jury had a large discretion in determining the amount of compensatory damages. 8 R. C. L. 673. It also had a large discretion in determining *607what sum by way of exemplary damages would amount to proper punishment of’ defendant. 8 R. C. L. 680. In Bogue v. Gunderson, 30 S. D. 1, 137 N. W. 595, Ann. Cas. 1915B, 126, this court said:
“One of the statutory grounds for granting a new trial is ‘excessive damages, appearing to .have been given under the influence of passion or prejudice.’ Rev. Code Civ. Proc. § 301. Great latitude is allowed in this -class -of cases. One purpose of exemplary damages is to de'ter the person against whom they are awarded from repeating the offense and! others from committing it. An amount sufficient to' serve this purpose in one instance might be wholly inadequate in another. Each action must be governed by its -own peculiar facts. The social standing of the parties, the place where the assault occurs, the character of the persons present, the provocation, if any — all the circumstances— are to be considered. The question is not whether the trial court cr this -court, as triers -of fact, would have awarded a less amount. Unless the verdict is so large as to clearly indicate that it must have been given under the influence of passion or prejudice, it should stand.”
It has been held that the amount of exemplary damages must bear a reasonable relation to the amount of actual damages recovered. It has also been held that the exemplary damages must bear some relation to the injury and the -cause thereof. It has also been "held that the amount -of exemplary damages must be proportioned 'to the injury intended rather than that done. Under the first rule it is observed in Sutherland on Damages (4th Ed.) p. 1312, that where punitive damages have been eight times the actual damages recovered, the verdicts have been set aside. In this -case there was no division of the verdict between the two kinds of damages-, but if there, had been, and the compensatory damages had been fixed, for instance, at $3,000, I do not believe that under either rule we would be warranted in holding that such verdict -showed passion or prejudice of the jury, nor a verdict for exemplary damages' for 'the difference between that sum and the amount recovered. In Union Mill Co. v. Prenzler, 100 Iowa, 540, 69 N. W. 876, a verdict -of $170.06 compensatory dam?o-es and $^,000 exemplary damasres for wrongful attachment -of property was'sustained, and in that opinion the court said that *608a verdict for exemplary damages- will not be set aside as excessive except in extreme cases. In the recent case of Eller v. Lord, 36 S. D. 377, 154 N. W. 816, we declined to set aside a verdict of $25,000 as excessive. I 'do not believe the present case to be an extreme case. After most thoughtful consideration of this .appeal and the enormity of defendant’s offense, I am unable to conclude that the jury exceeded that “flexible limit of judgment” which is committed to it in cases of this kind. Consequently I 'am unable to conclude that the trial court acted within its proper discretion in setting aside the verdict, even conceding that the question was one addressed to. the discretion of the trial court, and therefore subject to the same rule as in the case of insufficiency of the evidence, viz; That the action of the trial court will not be disturbed except for abuse of discretion.
I therefore think that the order granting a new trial should be reversed.
SMITH, J., concurs in the dis-sent.