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ting all other allegations in the com- positor's check, who has sufficient plaint.

funds on deposit to pay it. There is The cause was submitted to a jury no statute in our state fixing the on the pleadings, evidence, and in- measure of damages in this charstructions of the court, upon which acter of case; so, under $ 623 of Kira verdict was returned and judg- by's Digest, the common-law rule ment rendered against appellee in will control. The common-law rule, the sum of $50. Under proper pro- as stated in Siminoff v. Jas. H. Goodceedings an appeal has been duly man & Co. Bank, 18 Cal. App. 5, 121 prosecuted to this court from the

Pac. 939, is as follows: "Substanverdict and judgment.

tial damages may be recovered The evidence disclosed that on against a banker for dishonoring May 14, 1917, appellants, who were the check of a depositor, there being engaged in the mercantile and sufficient money in his hands at the butcher business at Madison, Ar- time to meet it." kansas, deposited $293 with appel- See also Rolin v. Steward, 14 C. lee, who was engaged in the bank- B. 595, 139 Eng. Reprint, 245, 2 ing business at Forrest City; that C. L. R. 759, 23 L. J. C. P. N. S. 148, they drew checks against the de- 18 Jur. 536, and other English cases posit on and after May 14, 1917, in referred to in the note to the anpayment of a telephone bill and notated case of Lorick v. Palmetto goods purchased in Memphis; that Bank & T. Co. 7 Ann. Cas. 818. The the deposit was sufficient to pay all note appears on page 819. The checks drawn; that the check to the great weight of American authority telephone company was presented to is clearly in accord with the comappellee and refused; that the mon-law rule. The general rule anchecks issued to wholesale mer- nounced under the heading, "Liabilchants in Memphis passed through ity of Bank to Drawer," in 5 Cyc. Memphis, St. Louis, and Forrest 535, is as follows: "If the bank City banks in the regular course of neglect or refuse to pay on the order business; that four of them were of a depositor, where the latter has presented to appellee prior to May sufficient funds on deposit and no 24, 1917, and refused; that one of other good excuse exists, the dethe checks was refused on the 18th positor can maintain an action and 21st days of May; that on the against the bank for the money, 19th day of May the attention of the and is entitled to recover substantial bank had been called by Mr. McFall damages for such refusal.” to the fact that appellants had The text is supported by a number money in the bank to pay the checks, of cases from many states in the and on the 21st day of May their at- Union. Touching upon the meastention was again called to that fact ure of damages in this character of by Mr. Scales, who showed the cash- case, it is said in 5 R. C. L. at page ier the deposit slip issued to them 548, that, “even where the depositor for $293 on the 14th day of May, is unable to show any special loss or for which they had not received injury, the authorities seem to be credit; that thereafter checks were almost uniformly to the effect that refused until appellants made a de- he is not limited to mere nominal posit on May 22d of a sufficient damages,” and that the depositor “is amount to pay them; that, on May entitled to recover general compen25th, the error was discovered, and satory damages.” The doctrine thus appellee gave appellants credit as of announced in the text is sustained by that date for the sum of $293 de- leading American cases under citaposited by them on May 14th.

tions 15 and 17. It is indicated in This appeal involves a deter- the note to Lorick v. Palmetto Bank mination of the rule by which to & T. Co. 7 Ann. Cas. 818, that the measure damages against a bank American cases adhering to the for refusal to pay a merchant de- common-law rule have followed the (- Ark. —, 211 8. W. 919.) English case of Rolin v. Steward, closing statements to the effect that supra, and that the American cases the court, in substance, instructed announcing a contrary rule have the jury that appellants were enfollowed the English case of Mar- titled to substantial damages, and zetti v. Williams, 1 Barn & Ad. 415, that the case was tried and the ver109 Eng. Reprint, 842,9 L. J. K. B. dict returned on that theory. We 42, 3 Eng. Rul. Cas. 746. In that have examined the several instrucnote, the case of Rolin v. Steward, tions given by the court on the meassupra, is characterized as a leading ure of damages, and find that they case on that subject, and the fact is precluded the idea that appellants, emphasized that Judge Campbell being merchants, were entitled to "instructed the jury that they ought recover substantial damages, withnot to limit their verdict to nominal out first making proof that they had damages, but should give the plain- sustained actual damage. For extiff such temperate damages as they ample, the court gave the following should judge to be a reasonable coma

written instructions: pensation for the injury which they "The jury is instructed that if you must have sustained for the dis- find from the evidence that the honor of their checks," and that the checks were not paid, notwithstandcase of Marzetti v. Williams “can ing plaintiffs had money in the bank, hardly be considered as an authority the defendant would be liable for in point," because the point at issue nominal damages only, unless it is

” was not involved in that case. Con- shown by the evidence that they in cerning the latter case, it is said in fact suffered actual damage." the note that "the only question be- “The jury is instructed that the fore the court was whether or not burden is on the plaintiff to show by the defendant was entitled to a non- competent evidence the amount of suit because the action should have damage sustained by them, if any, been brought in contract, and not in in excess of nominal damages." tort. Beyond that point the state- It will be observed in the first ments are merely obiter."

instruction just above quoted that The chief reasons assigned in sup- the court clearly told the jury that port of the doctrine sustained by only nominal damages could be reBank-liability

the great weight of turned, unless it was first estabfor dishonoring authority, to the ef- lished by the proof that appellants check.

fect that a merchant had suffered actual damages. It will or trader has a right to recover sub- also be observed in the last instrucstantial damages for the wrongful tion just above quoted that the burrefusal of a bank to honor his check den was placed upon appellants to when he has sufficient funds in the show by competent evidence that bank to pay it, is that “the wrong- they were actually damaged before ful act of the banker in refusing to they would be entitled to any sum honor the check imputes insolvency, in excess of nominal damages. This dishonesty, or bad faith to the draw- instruction was erroneous for the er of the check, and has the effect of reason that, under the law, the only slandering the trader in his busi- burden imposed upon appellants was ness." 5 R. C. L. 549.

to show that they were merchants, These reasons are sound and all- that they had money on deposit in sufficient. Many other reasons have appellee's bank in sufficient amount been assigned, but we deem it un- to cover checks drawn by them, and necessary to reiterate them here, as that the bank refused payment of we do not understand that learned the checks. The instruction as writcounsel for appellee seriously con- ten imposed the additional burden trovert the common-law rule adopt. of requiring appellants to prove by ed by the weight of American au- competent evidence the amount of thority. In fact, they virtually con- damages sustained by them, if any, cede the rule in their opening and in excess of nominal damages. The

Evidence

damagesdishonor of checks.

elements.

instruction practically eliminated the importance of the checks to the the presumption of substantial dam- plaintiffs' business, the size of their

ages arising from account, the plaintiffs' standing as

the law in favor of business men in presumption of appellants on

Damagesac- their community, dishonor of count of their being etc., which direction checks merchants at the

was proper matter time appellee turned down their to be taken into consideration in archecks.

riving at a verdict for substantial As a further evidence that the damages; but the instruction thus court had in mind and intended to given carried the same error as was convey the idea to the jury, in his contained in the first two written written instructions, that it was instructions copied in this opinion. necessary for appellants to prove It will be noted that the latter some actual damage before they clause, of the last oral instruction could recover substantial or moder- given, states that the jury should fix ate damage, the following oral in- just compensation for the injury struction was given at the conclu- sustained if the jury found that apsion of the written instruction: pellants had sustained injury. This “Then, gentlemen, I will give you direction necessarily implied that, this additional instruction: The unless the evidence showed appeljury is instructed that if you find lants had sustained actual injury, from the evidence that the checks they could not recover more than were not paid, notwithstanding the nominal damages. The instruction plaintiffs had money in the bank, carried the same error as the other the defendant would be liable for instructions above quoted, and did nominal damages, unless it is shown not clear up the clean-cut stateby the evidence in the case that they ment in the first oral instruction in fact suffered actual damages." given, which was to the effect that,

At this juncture, appellants ex- unless the evidence in the case cepted to the oral instruction,

oral instruction, showed actual damage, only nominal whereupon the court instructed the damages could be recovered. If by jury as follows: "Gentlemen, I give any manner of construction it could you this additional instruction; it be said that the last oral instruction was given to you a few minutes ago, but, since that time, I have modified conveyed the idea to the jury that

appellants were entitled to a verdict it, and give it to you in this form: If you find that the plaintiffs should

for substantial damages, it would

be in direct conflict with the two recover, you are instructed that, in arriving at what is a fair and just written instructions quoted above, sum for the damages sustained, you

which were in no wise modified or will take into consideration the im- attempted to be modified by it. portance of those checks to the plain

It cannot be said, under the facts tiffs' business; also, the size of their in this case, that the jury would not account; also, the plaintiffs' stand- have returned a larger verdict had ing as business men in their com- they been properly instructed to the munity; and you will fix the dam- effect that the law presumes that a ages at such sum as you think will merchant or trader suffers substanbe a fair and just compensation for tial damage by having his check disthe injury sustained, if you find honored by a bank in which he has there has been an injury sustained sufficient funds to meet such checks, by the plaintiffs."

and that it was unnecessary for a The latter instruction properly set merchant or trader to prove damout matters that the jury should ages in any specific or certain consider in arriving at their verdict. amount in order to entitle him to For example: It told them that damages for a substantial amount. they should take into consideration For the error indicated, the judg

so.

(- Ark. —, 211 S. W. 919.) ment is reversed, and the cause re- propriately declared in opinions of manded for a new trial.

courts with respect to the weight McCulloch, Ch. J., dissenting.

and sufficiency of evidence are out The first and readiest answer to

of place in an instruction to a trial the contention that prejudicial error

jury, where, as in this state, judges was committed by the court's re

are forbidden to charge on the fusal to charge the jury as to the weight of evidence. This has been right of appellants to recover sub

illustrated in cases here. For instantial damages is that the jury's stance, it was once said by this verdict awarded substantial dam

court, in discussing the weight of ages, and no prejudice resulted even

evidence, that unexplained possesthough the ruling of the court was

sion of recently stolen property was incorrect. An award of $50 is not

sufficient to sustain a conviction of an award of nominal damages. That larceny. Shepherd v. State, 44 Ark. sum is a substantial one, and is, in

39. But we have since repeatedly this instance, apparently adequate held that it is improper, as an inaccording to the evidence adduced.

struction on the weight of evidence, At any rate, the evidence in the

for the trial court to tell the jury record is such that we cannot say

Blankenship v. State, 55 Ark. that the jury erred in the assess

244, 18 S. W. 54; Duckworth v. ment of damages. The court in

State, 83 Ark. 192, 103 S. W. 601; structed the jury that, “in arriving

Thomas v. State, 85 Ark. 138, 107 at what is a fair and just sum for

S. W. 390; Reeder v. State, 86 Ark. the damages sustained,” they should 341, 111 S. W. 272. And, in an opin"take into consideration the import; that in a suit for malicious prose

ion, this court declared the law to be ance of those checks to the plaintiffs' business, also the size of their ac

cution the jury may infer malice count, also the plaintiffs' standing from proof of want of probable as business men in their communi

cause.

Lavender v. Hudgens, 32 ty," and "fix the damages at such

Ark. 763; Bozeman v. Shaw, 37 Ark. sum as you think will be a fair and

160. But it has been decided that just compensation for the injury

an instruction to that effect would sustained.” In view of the award

be erroneous. L. B. Price Mercanof a substantial sum as damages,

tile Co. v. Cuilla, 100 Ark. 316, 141 it ought to be presumed that the

S. W. 194; Dare v. Harper, 101 Ark. jury followed that instruction, and

37, 140 S. W. 983; Kable v. Carey, that no prejudice resulted from the

135 Ark. 137, — A.L.R. 204 S.

· court's refusal to charge the jury

W. 748. Other similar instances concerning appellants' right to re

may be found in the decisions of cover substantial damages, or from

this court. the instruction that there would only

The instructions requested by apbe liability for nominal damages pellants were indeed open to the ob"unless it is shown by the evidence jection that they related to the that they (appellants) in fact suf- weight of the evidence, and were erfered actual damages," even if the

roneous, unless it be held that as a court committed error in those re

matter of law the wrongful or negspects. This court should not annul ligent failure of a bank to pay the the judgment on account of imma

check of a depositor who is a merterial error.

chant entitles such person to reBut it seems clear to me that the cover substantial damages under all court did not err in its charge. An

circumstances. No court ever held instruction telling the jury that ap

that, and it is contrary to reason, pellants were entitled to substantial for everyone familiar with the ordidamages would have been a charge nary run of business affairs knows on the weight of the evidence, which that some merchants are in such afis prohibited by the Constitution, fluent circumstances and their credit art. 7, § 23. Principles of law ap- is so firmly established that not a

4 A.L.R.-60.

.

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cent of actual injury is sustained by lated under ordinary circumstances the failure or refusal of a bank to to injuriously affect the credit of a pay a check. The most that has merchant. I have no quarrel with been decided on the subject is that that holding, but I think it is wrong a trial jury may, without direct and out of harmony with our own proof as to the extent of the injury, decisions to say that a trial court infer injury resulting to the credit may instruct a jury what inference of a merchant from the failure of a they may draw from the circumbank to honor his check, and in stances. This inference is one of jurisdictions where instructions on fact and is not a presumption of the weight of evidence are not for law, and the courts have no right bidden the courts may charge juries under the Constitution of this state to that effect.

to charge juries on the weight of This doctrine, which the majority such inferences. The correct rule of the judges of this court now in- was stated by Judge Hook in delivervoke as calling for a reversal of the ing the opinion of the United States judgment of the circuit court, had circuit court of appeals for this cira very small beginning to have cuit in the case of Third Nat. Bank grown to such dimensions, in the v. Ober, 102 C. C. A. 178, 178 Fed. English case of Rolin_v. Steward, 678, where he said: “This rule pro14 C. B. 595, 139 Eng. Reprint, 245, ceeds upon the fact, commonly rec2 C. L. R. 759, 23 L. J. C. P. N. S. ognized, that the credit of a person 148, 18 Jur. 536. The trial court engaged in such a calling is essential had, in that case, told the jury that to the prosperity of his business, and they "ought not to limit their ver- the dishonoring of his checks is dict to nominal damages, but should plainly calculated to impair it and to give the plaintiff such temperate inflict a most serious injury. In damages as they should judge to be common opinion, substantial damreasonable compensation for the in- age is the natural and probable conjuries sustained." The jury re- sequence of the act, and therefore a turned a verdict assessing damages substantial recovery may be had in favor of the plaintiff in the sum without pleading or proof of speof £500, and the appellate court af- cial injury.” firmed the judgment on appeal, say- The court in that case went on to ing: “A breach of contract of this decide that no such inference could sort must of necessity be injurious be drawn as to a person not in busito a person in trade, and, if so, the ness, which shows that the rule crejury might properly take that into ates only an inference of fact under consideration and give damages ac- certain circumstances, and that it is cordingly."

not a presumption or rule of law The practice in the English trial which a trial court can declare to a courts is for the judges to sum up jury. The trial court can only inthe evidence in their charge to struct the jury, as was done in the juries, and they are not forbidden present case, that in order to ascerto charge on the weight of evidence; tain the amount of the damages conso, in the light of that power, the sideration should be given to the decision of the appellate court was condition of the plaintiffs and the undoubtedly correct. Many Ameri- probable effect the dishonoring of can courts have followed that lead, the checks had on their credit. and the majority of them hold that Nor was there any error in the direct proof of injury is not essen- instruction telling the jury that the tial to the recovery of substantial burden of proof was on appellants damages, for the reason that an in- to "show by competent evidence the ference of substantial injury may amount of damages sustained, if legitimately be drawn from the fact any, in excess of nominal damages." that a trader's check has been dis- This instruction was, of course, to honored, which is, of itself, calcu- be considered in connection with the

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