191 N.W. 949 | N.D. | 1922
Lead Opinion
This is an appeal from an order granting defendant’s motion for a new trial. The action is one to recover damages for false imprisonment. The plaintiff recovered a verdict in the sum of $3,250. The motion for a new trial was made on the ground, among others, of excessive damages appearing to have been given under the influence of passion or prejudice. The trial court granted the motion on this ground and the plaintiff has appealed.
The rules governing the respective functions of trial and appellate courts in considerations of motions for a new trial on a discretionary ground have been so thoroughly considered by this court that we shall not restate these rules but content ourselves by citing some of the many cases in which the applicable principles have, been stated. See Pengilly v. J. I. Case Threshing Mach. Co. 11 N. D. 249; 91 N. W. 63, 12 Am. Neg. Rep. 619; Aylmer v. Adams, 30 N. D. 514, 153 N. W. 419; State v. Cray, 31 N. D. 67, 153 N. W. 425; Skaar v. Eppeland, 35 N. D. 116, 159 N. W. 707; Blackorby v. Ginther, 34 N. D. 248, 158 N. W. 354; Reid v. Ehr, 36 N. D. 552, 162 N. W. 903; First International Bank v. Davidson, 36 N. D. 1, 161 N. W. 281. Stated generally, the fundamental rule applicable to motions of this kind is that such motion is addressed to the sound, judicial discretion of the trial court and that the appellate court will not interfere unless a manifest abuse of such discretion is shown. In actions like the one before us, actions for personal torts, the law does not fix any precise rule for admeasurement of damages, and from the necessity of the case their assessment is left to the good sense and unbiased judgment of the jury. The parties, how-
Appellant lays stress on the fact that this case has been twice tried and that the verdict under consideration here is the second verdict re
Concurrence Opinion
(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
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.
Dissenting Opinion
(dissenting). This is the second trial in which the plaintiff has recovered a judgment on the same cause of action against the defendant, in substantially the same amount. The trial court granted a motion for a new trial on the ground of excessive damages, appearing to have been given under the influence of passion or prejudice.
There is nothing in the record to indicate any passion or prejudice on the part of the jury. As it appears to me, the court abused its discretion in granting a new trial.