(dissenting.) It is to be regretted that a sense of judicial obligation requires another dissenting opinion in this case. Our majority Brethren say:
“There were no facts proven that would establish actual damages in any large sum. It follows that the judgment should be reversed unless the trial court rightfully submitted to the jury the question of punitive damages. That the trial court erred in so doing is clear. The record before us contains no evidence sufficient to sustain a finding that defendant acted maliciously.”
It is conceded that the facts proven are sufficient to establish actual damages, though in the opinion of our Associates such actual damages should not be large. Actual damages sufficient to sustain punitive damages are conceded. The reversal rests wholly upon the assertion that the facts in evidence are not sufficient to sustain an award of punitive damages, and specifically, that it is insufficient to show that the defendant acted maliciously. Because of this assertion, a dissenting opinion demands a somewhat full statement of facts as found by the jury in arriving at its verdict.
Plaintiff was a married woman, living with her husband and a daughter 14 years of age in a dwelling house owned by plaintiff in the town of Henry, Codington county. On August 17, 1914, plaintiff’s husband was arrested by the sheriff of Codington county, at plaintiff’s home, upon a warrant from the municipal court of the city of Watertown, upon a complaint charging the husband with unlawfully selling intoxicating liquors. At the time of the arrest, the sheriff took into his possession a case of beer and a cask of beer found in a shed to the west side of the dwelling house. This was the only intoxicating liquor which the sheriff *253saw or found at the time of the arrest. He locked the beer in the city hall at Henry, to 'be held as evidence, and immediately took the accused ¡before the municipal court at Watertown. Appellant Keyes lived in the town of Henry. About 8 o’clock the evening of the arrest, Keyes called the sheriff on the telephone at Watertown, and asked him what stuff he had got at Gamble’s and asked if he had got a black grip. The sheriff replied that he had not got such a grip. Keyes said “You want to get that; it is full of liquor.” The sheriff then told Keyes to get Mr. Ring, his deputy, and to go up and see if they could get the grip. Keyes said, “you have got a warrant, haven’t you?” and the sheriff replied that he had a warrant for the arrest of Gamble, but did not have a search warrant; that he had arrested Gamble; that he did not want Mr. Ring to go up there and get him into trouble without a search .warrant, but to have Ring go up and see if he could get the grip. Upon cross-examination the sheriff was asked:
“Q. You wanted Ring to run a bluff and see if he could get that? A. Yes, sir.”
That same evening Keyes saw Ring, and told him he had talked with Sheriff Frank Elkins, and that Elkins had told him to go down and see if “we” could get that black grip. Ring told Keyes that he did not whnt to go alone, and said he would have to take Keyes with him, if he could go, as he could not find the town marshal. Ring and Keyes went to the' Gamble house. Ring knocked on the door. Mrs. Gamble opened the door and asked who they were. Ring told her who Keyes was, and that they had come after the black grip; she told them they would hot get it. Keyes said they came for that suit case, and she told him he would not get that suit case because she considered it personal property. 'She then closed the front door, locked it, and sat down on a chair near the door. The men told her if she did not open the door they would burst it ■ open; she refused, and they did burst the door, and when it flew open Keyes stepped in. As he came in she threw! a cuspidor at him; Ring came in behind Keyes. When she hit Keyes he said to Ring, “Arrest her,” and when Ring took hold of her Keyes said, “Handcuff her,” and both took hold of her. They held her by the 'arms by main force; did not strike her, but compelled her to go with them. 'After they got *254outside the house Keyes went back and got the suit case, and carried it in one hand and held her arm with the other; she tried to get away from them, but they were too strong. They took her to the station house several blocks distant. The daughter, Ethel, followed them from the house. Mr. Ring remained with them in the station house, while Mr. Keyes went out. Keyes came back and told her she could go home. S'he and her daughter returned home, and remained during the night. Her husband came back from Watertown the next afternoon, and she told him what had happened. He told, her she had better have a doctor. They had one come, and he prescribed for her injuries. Plaintiff was slightly bruised, was humiliated, and suffered nervous shock. She knew that her husband had sold beer and drank it at their home, but had never sold it herself. 'She had never gone out in society, but had visited a few of her neighbors before this affair. After her arrest she felt humiliated, and did. not go out, though. her neighbors spoke to her as usual when she met them on the street. There was very little conflict in the testimony, and there was competent evidence to establish all the foregoing facts. The rule has long been settled in this state that the verdict of a jury is conclusive as to disputed facts upon a motion for new trial.
The action is for damages for false imprisonment. In this connection it may be,observed that the evidence referred to in the majority opinion as minimizing the injuries h> plaintiff’s feelings through loss of social standing was received, and could be competent only as relating to actual damages, and has no bearing whatever upon the question of punitive damages.
The statute of this state (section 1965, 'Code 19x91) provides that:
“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 iby way of punishing the defendant.”
Under this statute, wrongful acts for which punitive damages may be awarded are divided into three classes: First, acts of oppression, malice presumed; second, fraudulent acts, malice presumed ; third, wrongful acts accompanied by actual malice. Want of actual malice in acts of oppression or fraud is not a ground *255for denial of punitive damages. Other wrongful acts accompanied by malice are sufficient to justify punitive damages. In the first two classes of cases, proof of actual malice, while not essential to sustain a recovery, is competent in enhancement of punitive damages. In the third class of cases the absence of actual malice will defeat a recovery of punitive damages.
The case of Baxter v. Campbell, 17 S. D. 475, 97 N. W. 386, relied upon and referred to in the majority opinion, belongs to the latter class. That -was an action against a physician to recover damages for malpractice, and the evidence discloses no malice, actual or presumed. At the utmost, it disclosed acts constituting gross negligence, but no acts of oppression or fraud, and the wrongful acts alleged were not accompanied by any proof of malice, actual or presumed.
The case of Roberts v. Shaffer, 36 S. D. 551, 156 N. W. 67, is an example of “oppression” which justifies punitive damages. In that case a judgment debtor had claimed exemption under an execution levy, and his right to exemption had been wilfully disregarded by the officers. This court, speaking through Judge Whiting, said:
“When, as in this case, the rights of a debtor become absolute and clear, it does not behoove the creditor or an officer acting for him, to disregard such rights and attempt by unlawful means to deprive -him thereof; and, if such creditor or officer sees fit to willfully disregard such rights and attempts to override and destroy the same, he cannot be heard to complain when a jury of his peers punished his act by the imposition of punitive damages.”
In Bailey v. Walton, 24 S. D. 118, 123 N. W. 701, where the evidence disclosed merely a wrongful seizure and sale of property to satisfy a judgment, and where there was not a scintilla of evidence of actual malice, an instruction, submitting the question of punitive damages, was held proper, and the opinion in that case clearly distinguishes Baxter v. Campbell. The rule announced in Roberts v. Shaffer is sustained by an overwhelming weight of authority. Leavell v. Leavell, 122 Mo. App. 654, 99 S. W. 460; London Guarantee & A. Co. v. Horn, 206 Ill. 493, 69 N. E. 526, 99 Am. St. Rep. 185; Schonwald v. Ragains, 32 Okl. 223, 122 Pac. 203, 39 L. R. A. (N. S.) 834; McFadden v. *256Lane, 71 N. J. Law, 624, 60 Atl. 365; Bowles v. Lowery, 5 Ala. App. 555, 59 South 696; Williams v. Williams, 132 Mo. App. 266, 111 S. W. 837; Southern Ry. Co. v. McEntire, 169 Ala. 43, 53 South. 158; Brennan v. United Hatters, 73 N. J. Law, 729, 65 Atl. 165, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698; McGurk v. Cronenwett, 199 Mass. 457, 85 N. E. 576, 19 L. R. A. (N. S.) 561.
In Hooker v. Smith, 19 Vt. 151, 47 Am. Dec. 679, an action for false imprisonment, the court said:
“It appears, also, that the defendants knew, at the time, that the sheriff was acting under a civil process. .In their plea in bar they describe it particularly, and say that the sheriff requested them to assist him in executing it; and in the replication, the truth of which is admitted by the demurrer, it is stated that the defendants entered the plaintiff’s dwelling house, by forcibly opening the outer door, for the purpose, and with the intent to execute therein the right of execution by arresting his body. With the full knowledge that the sheriff was about to do an illegal act, they united with him in committing it; and we think they must share with him in its consequences. A contrary doctrine would enable a sheriff, under color of a civil process, to add to his own physical power, to accomplish an illegal object, the power of a lawless, but wholly irrresponsible, mob.”
Sheriff Elkins, himself testified that he told Keyes that he had no search, warrant, but only a warrant for the arrest of Gamble. The evidence conclusiyely establishes the fact that neither the sheriff nor his deputy, Ring, had a search warrant or other process authorizing the entry or search of plaintiff’s dwelling house, and the direct evidence of at least three credible witnesses proves that the defendant, Keyes, was fully cognizant of. that fact prior to and at the time he and Ring forced open and entered plaintiff’s home.
The court instructed the jury that the acts of forcibly entering plaintiff’s home without a search warrant, and arresting and restraining her of her liberty, were unlawful.. Instructing the jury as to what constitutes malice, the court quoted the statute in full, and, further, accurately and correctly interpreted the statute as applied to the facts in this case saying:
“Malice which is presumed, or malice in law as distinguished *257from malice in fact, is not personal hate or ill will of one person towards another; it refers to that state of mind which is regardless of the legal rights of a citizen, in a person’s conduct towards that citizen.”
A clearer instruction, or a more typical example of “oppression” cannot be found in the books. The law applicable is concisely stated in ix R. C. R. 821.
“Malice, as used in this connection, does not necessarily mean anger or malevolent or vindictive feeling toward the plaintiff: but a wrongful act without reasonable excuse is malicious within the legal meaning of the term.”
The majority opinion says:
“The trial court, if it submitted a question of punitive damages, should have carefully instructed the jury upon the necessity of its finding whether or not appellant believed that the necessary authority did exist.”
There are two answers to this statement: First, no request for any such instruction was made by appellant; and, second, there is not a scintilla of evidence in the record tending to show that appellant believed that Ring had a search warrant. Appellant himself did not even intimate any such belief in his testimony. The majority opinion says:
“As a matter of exact law, the jury is supposed to pass only upon those issues of fact submitted to it under the instructions of the court. The jury has no right to consider any other issue; and it is these issues, submitted to the jury under the instructions, upon which the verdict becomes conclusive as against the defeated party.”
And the majority opinion apparently insists that this rule ba applied whenever a conflict in the evidence arises in the course of a jury trial. Can it be possible that our majority Associates intend to lay down the rule that the trial court must specifically refer to and submit to the jury each and every conflict in the testimony of witnesses? Such certainly would be tjhe effect of this language as applied in this case. If such be the rule, and it should happen that the trial court should direct the attention of the jury to a single conflict in the evidence, but fail to direct their attention to a dozen others equally important, the verdict of the jury would be conclusive as to the 1, but wholly inconclusive *258as to the other 12. Certainly that cannot be the law in this jurisdiction. There is a broad distinction between issues of fact which arise upon the pleadings, and questions of credibility of witnesses which arise at .a trial, and which are held conclusively determined 'by the findings of the jury. Stripped of legal verbiage, the majority opinion holds that a private citizen and a deputy sheriff, absolutely without legal process or warrant of law, may forcibly enter the dwelling house of a private citizen of the commonwealth, not charged with any crime, forcibly and wrongfully arrest such citizen, carry her to the city station house, detain her there without authority, and turn her loose without preferring a charge of any misconduct, and that such a case is not properly one in which punitive damages may be awarded. If this be the law, not only the legal profession, but many judges of the courts, have much to learn.
We cannot do otherwise than dissent.