(specially concurring). This is an action for an alleged false imprisonment of three hours in the city jail at Enderlin. The plaintiff recovered a verdict for over $3,000, though she sustained *247no material injury, and though it does appear that she and her husband wrongfully provoked the imprisonment of which she complains. The court set aside the verdict as excessive and given under the influence of passion and prejudice, and the plaintiff appeals. Manifestly the court was right. The verdict was so grossly excessive that it must have been given under some evil influence. Quite possible the plaintiff cast a spell over the jurors; quite possible her skilful counsel made some passionate, unfair, hypnotic, and prejudicial appeal to the jurors, asking them for smart money, while he posed as a disinterested minister of justice. Quite possible this case was prosecuted for a contingent fee of 50 per cent and that counsel, having a personal interest in the case, should have been joined and made a party plaintiff so the jury might know his motive for demanding smart money. In the conduct of such a case, counsel for defense should not allow professional courtesy to' prejudice the rights of his client. It is hard to conceive of such a verdict in case the action had been properly defended.
The statute is that damages must in all cases be reasonable. In an action such as this, exemplary damages may be given a plaintiff whose conduct has been exemplary, not to one whose conduct has invited and provoked the alleged injury. Thus in an action fox a common assault, the plaintiff should not recover exemplary damages if he had provoked the assault by the use of vile and abusive language or by withholding- or trying to steal the property of the defendant.
With this in-mind, let us consider the conduct of the plaintiff and hex-husband in provoking and causing the arrest. They had purchased a house at Enderlin occupied by one Harper and brought suit to dispossess him. That was in June, and in his absence they had stealthily-taken possession of the house by going in through a back window, and then they had accepted and retained a deposit of rent to July 13th. Then they insisted on retaining a small tent which Harper owned and' had on the premises. They knew well that they did not own the tent and that it belonged to Harper, and still they insisted on retaining it. and refused to let the officer remove it. Such was the conduct which caused the chief of police to arrest them. Such conduct was very far from being exemplary or in any way deserving exemplary damages.
The order appealed from is clearly right and should be affirmed.