Livesey

In this action the judgment was for plaintiff awarding actual and punitive damages growing out of an assault with a deadly weapon. The verdict was $5,000 actual and $50,000 exemplary damages. The court below, upon motion for a new trial, determined that unless the amount of such damages was remitted by the plaintiff to $750 as actual and $33,333.33 as punitive damages, a new trial should be ordered. Plaintiff remitted said excess sum, but the defendant has nevertheless appealed.

The first assignment of error requiring special consideration may be summed up in the words of defendant’s counsel as follows: “The appellant was the owner and was in possession of real property. The respondent deliberately and wilfully, for the second time within a period of two days, was destroying the fence on appellant’s property. Under the law the respondent was a trespasser and appellant had the right to use all necessary force to repel his unlawful trespass. The respondent cannot recover anything in this action unless he shows that unnecessary force was used to prevent the trespass, and then can only recover the actual damage resulting from the unnecessary force, and under the law he cannot recover…