(concurring specially). On a pleasant summer day in June, 1919, at the city of Enderlin, the plaintiff and his wife were gently arrested by the chief of police because they insisted on keeping a Si 5 tent Which did not belong to them. The chief took them gently into his automobile, took them to the chief magistrate, and then, for safekeeping, put them in the city jail while he made a complaint and obtained a warrant against them for bad conduct and for obstructing him in the removal of the tent. The chief served the warrant, and in a few hours both parties were brought before the magistrate and were released. She, on her promise to return; he, on a deposit of a.check for $75. On a demurrer the complaint was held bad and they were both discharged. Then, for the arrest and imprisonment, she brought an action to recover $10,000; he, an action for $5,000. The jury awarded her $4,000 against three defendants and awarded him $1,200 against the magistrate and the chief of police. Some people are so liberal with the money of others. In each case the verdict was for about 100 times the actual damages. However, it is said the verdict is not so excessive as to shock the conscience; but, as I think, that can only be true where there is little or no conscience to be shocked. And what shall we say of the excessive damages claimed in the verified complaint, which were known to be untrue, and of the lawyer who subscribed to or verified such complaints? The duty of the lawyer and the courts is to prevent one party from robbing another through the forms and technicalities and the chicanery of the law, and to see that every suit is commenced and conducted in an honorable and professional manner.
By statute every person who suffers detriment from the unlawful act or omission of another may recover from the person at fault a compensation in money, which is called damages. § 7139. In an action for the breach of an obligation not arising from contract, when a defendant has been guilty of oppression, fraud, or malice, the jury may give damages for the sake of example by way of punishing him. § 7145. That is called exemplary or punitory damages. Damages must in all cases be reasonable and not unconscionable or grossly oppressive. § 7183.
Regardless of fine-spun theories, defendant Harper had a perfect right to take the tent without paying $15 as the expense of a lawsuit. He had a right to take it by his drayman under the protection of the chief of *134police. The chief went with the drays and he acted with great kindness and without anger. He told the plaintiffs that the tent belonged to Harper and not to them, and that he would take it or arrest them if they persisted in obstructing him. Yet, they persisted in doing wrong. They deliberately chose to be arrested and to go to jail sooner than to let Harper have his tent. For over three years Harper had been in possession of the tenement house, which was traded to the Masons for a pool room outfit. Harper had paid his rent monthly and was a tenant from year to year. Yet the Masons wrongfully treated Harper as a tenant from month to month. They served on him a notice to quit, and by error of law obtained a judgment for possession. Harper had deposited in the Enderlin Bank $22.50 to pay rent to the night of July 13, 1919, and on entry of the judgment Mason took the $22.50 and refused to refund any part of it. Hence Harper retained the key of the house and did not give up possession, and the Masons broke in through a window and then claimed possession of the house and the tent. The record is long and it abounds with numerous errors:
(1) The court erred by refusing to permit Harper to prove the ownership of the tent. (2) The court erred by refusing to permit proof that Harper had paid rent to the night of July 13th, that Harper held the keys of the house and did not give possession to the Masons. With such proof and such facts Harper, and those who acted for him, had a perfect right to take possession'of the tent. But if the tent did not belong to Harper, then, of course, he had no right to take it, and then he was liable for both actual and punitory damages. So it was clear and manifest error to exclude evidence concerning the ownership of the tent, the payment of rent to July 13th, and the way in which the Masons broke into the house.
Now it is truly said of Mr. Mason that at the time of the trouble he had not long resided in Enderlin. “He had at various times been engaged in the occupations of bartender, oil stock salesman, pool hall keeper, brakeman, and lastly, switchman, and that he had lived in half a dozen or more places since his marriage.” Then it is assumed that by the indignity suffered he must have been grievously affected and thwarted in aspirations to establish himself as a respectable citizen of the community. However, there is good reason for thinking that he deliberately chose the paths of the wrongdoer and that he acted as the bully of the community, threatened the chief magistrate, and undertook by force and intimidation to withhold a tent which did not belong to him, and broke into a tene*135ment which had been occupied by Harper. Wholly different is the testimony regarding Mr. Underwood. For 25 successive years he has been elected and re-elected as the chief magistrate of Enderlin. He-has not been roving about from place to place, from post to pillar, and leaving his character behind him. For aught that appears to the contrary, the word and the conscience of Magistrate Underwood is just as good as any judge of this state, and there is no reason that he should be mulcted in damages to the amount of one cent. There is no testimony that he had anything to do with the arrest. True, the Masons testify that when brought before the magistrate he ordered them taken to jail while he made out the complaint and the warrant for their arrest. This the magistrate does emphatically deny, and it is of no special consequence. His word is fully as good as that of the roving Masons. No honesty is shown by their trying to keep the tent, their keeping the excess rent paid to July 13th, or their breaking into the house, and, as a rule, both truth and honesty go together. A person who is not honest, neither is he truthful. In dealing with Harper, if the Masons had shown a spirit of Christian charity and fairness, they might still be residing in Enderlin. The judgment should be reversed, and the action dismissed.