ting all other allegations in the complaint.

The cause was submitted to a jury on the pleadings, evidence, and instructions of the court, upon which a verdict was returned and judgment rendered against appellee in the sum of $50. Under proper proceedings an appeal has been duly prosecuted to this court from the verdict and judgment.

positor's check, who has sufficient funds on deposit to pay it. There is no statute in our state fixing the measure of damages in this character of case; so, under § 623 of Kirby's Digest, the common-law rule will control. The common-law rule, as stated in Siminoff v. Jas. H. Goodman & Co. Bank, 18 Cal. App. 5, 121 Pac. 939, is as follows: "Substantial damages may be recovered against a banker for dishonoring the check of a depositor, there being sufficient money in his hands at the time to meet it."

The evidence disclosed that on May 14, 1917, appellants, who were engaged in the mercantile and butcher business at Madison, Arkansas, deposited $293 with appellee, who was engaged in the banking business at Forrest City; that they drew checks against the deposit on and after May 14, 1917, in payment of a telephone bill and goods purchased in Memphis; that the deposit was sufficient to pay all checks drawn; that the check to the telephone company was presented to appellee and refused; that the checks issued to wholesale merchants in Memphis passed through Memphis, St. Louis, and Forrest City banks in the regular course of business; that four of them were presented to appellee prior to May 24, 1917, and refused; that one of the checks was refused on the 18th and 21st days of May; that on the 19th day of May the attention of the bank had been called by Mr. McFall to the fact that appellants had money in the bank to pay the checks, and on the 21st day of May their attention was again called to that fact by Mr. Scales, who showed the cashier the deposit slip issued to them for $293 on the 14th day of May, for which they had not received credit; that thereafter checks were refused until appellants made a deposit on May 22d of a sufficient amount to pay them; that, on May 25th, the error was discovered, and appellee gave appellants credit as of that date for the sum of $293 deposited by them on May 14th.

This appeal involves a determination of the rule by which to measure damages against a bank for refusal to pay a merchant de

See also Rolin v. Steward, 14 C. B. 595, 139 Eng. Reprint, 245, 2 C. L. R. 759, 23 L. J. C. P. N. S. 148, 18 Jur. 536, and other English cases referred to in the note to the annotated case of Lorick v. Palmetto Bank & T. Co. 7 Ann. Cas. 818. The note appears on page 819. The great weight of American authority is clearly in accord with the common-law rule. The general rule announced under the heading, "Liability of Bank to Drawer," in 5 Cyc. 535, is as follows: "If the bank neglect or refuse to pay on the order of a depositor, where the latter has sufficient funds on deposit and no other good excuse exists, the depositor can maintain an action against the bank for the money, and is entitled to recover substantial damages for such refusal."

The text is supported by a number of cases from many states in the Union. Touching upon the measure of damages in this character of case, it is said in 5 R. C. L. at page 548, that, "even where the depositor is unable to show any special loss or injury, the authorities seem to be almost uniformly to the effect that he is not limited to mere nominal damages," and that the depositor "is entitled to recover general compensatory damages." The doctrine thus announced in the text is sustained by leading American cases under citations 15 and 17. It is indicated in the note to Lorick v. Palmetto Bank & T. Co. 7 Ann. Cas. 818, that the American cases adhering to the common-law rule have followed the

(— Ark. —, 211 8. W. 919.)

English case of Rolin v. Steward, supra, and that the American cases announcing a contrary rule have followed the English case of Marzetti v. Williams, 1 Barn. & Ad. 415, 109 Eng. Reprint, 842, 9 L. J. K. B. 42, 3 Eng. Rul. Cas. 746. In that note, the case of Rolin v. Steward, supra, is characterized as a leading case on that subject, and the fact is emphasized that Judge Campbell "instructed the jury that they ought not to limit their verdict to nominal damages, but should give the plaintiff such temperate damages as they should judge to be a reasonable compensation for the injury which they must have sustained for the dishonor of their checks," and that the case of Marzetti v. Williams "can hardly be considered as an authority in point," because the point at issue was not involved in that case. Concerning the latter case, it is said in the note that "the only question before the court was whether or not the defendant was entitled to a nonsuit because the action should have been brought in contract, and not in tort. Beyond that point the statements are merely obiter."

The chief reasons assigned in support of the doctrine sustained by Bank-liability the great weight of for dishonoring authority, to the ef

check.

fect that a merchant

or trader has a right to recover substantial damages for the wrongful refusal of a bank to honor his check when he has sufficient funds in the bank to pay it, is that "the wrongful act of the banker in refusing to honor the check imputes insolvency, dishonesty, or bad faith to the drawer of the check, and has the effect of slandering the trader in his business." 5 R. C. L. 549.

These reasons are sound and allsufficient. Many other reasons have been assigned, but we deem it unnecessary to reiterate them here, as we do not understand that learned counsel for appellee seriously controvert the common-law rule adopted by the weight of American authority. In fact, they virtually concede the rule in their opening and

closing statements to the effect that the court, in substance, instructed the jury that appellants were entitled to substantial damages, and that the case was tried and the verdict returned on that theory. We have examined the several instructions given by the court on the measure of damages, and find that they precluded the idea that appellants, being merchants, were entitled to recover substantial damages, without first making proof that they had sustained actual damage. For example, the court gave the following written instructions:

"The jury is instructed that if you find from the evidence that the checks were not paid, notwithstanding plaintiffs had money in the bank, the defendant would be liable for nominal damages only, unless it is shown by the evidence that they in fact suffered actual damage.”

"The jury is instructed that the burden is on the plaintiff to show by competent evidence the amount of damage sustained by them, if any, in excess of nominal damages."

It will be observed in the first instruction just above quoted that the court clearly told the jury that only nominal damages could be returned, unless it was first established by the proof that appellants had suffered actual damages. It will also be observed in the last instruction just above quoted that the burden was placed upon appellants to show by competent evidence that they were actually damaged before they would be entitled to any sum in excess of nominal damages. This instruction was erroneous for the reason that, under the law, the only burden imposed upon appellants was to show that they were merchants, that they had money on deposit in appellee's bank in sufficient amount to cover checks drawn by them, and that the bank refused payment of the checks. The instruction as written imposed the additional burden of requiring appellants to prove by competent evidence the amount of damages sustained by them, if any, in excess of nominal damages. The

(— Ark. —, 211 S. W. 919.)

ment is reversed, and the cause remanded for a new trial.

McCulloch, Ch. J., dissenting.

The first and readiest answer to the contention that prejudicial error was committed by the court's refusal to charge the jury as to the right of appellants to recover substantial damages is that the jury's verdict awarded substantial damages, and no prejudice resulted even though the ruling of the court was incorrect. An award of $50 is not an award of nominal damages. That sum is a substantial one, and is, in this instance, apparently adequate according to the evidence adduced. At any rate, the evidence in the record is such that we cannot say that the jury erred in the assessment of damages. The court instructed the jury that, "in arriving at what is a fair and just sum for the damages sustained," they should "take into consideration the importance of those checks to the plaintiffs' business, also the size of their account, also the plaintiffs' standing

as business men in their community," and "fix the damages at such sum as you think will be a fair and just compensation for the injury sustained." In view of the award of a substantial sum as damages, it ought to be presumed that the jury followed that instruction, and that no prejudice resulted from the court's refusal to charge the jury concerning appellants' right to recover substantial damages, or from the instruction that there would only be liability for nominal damages "unless it is shown by the evidence that they (appellants) in fact suffered actual damages," even if the court committed error in those respects. This court should not annul the judgment on account of immaterial error.

But it seems clear to me that the court did not err in its charge. An instruction telling the jury that appellants were entitled to substantial damages would have been a charge on the weight of the evidence, which is prohibited by the Constitution, art. 7, § 23. Principles of law ap

4 A.L.R.-60.

propriately declared in opinions of courts with respect to the weight and sufficiency of evidence are out of place in an instruction to a trial jury, where, as in this state, judges are forbidden to charge on the weight of evidence. This has been illustrated in cases here. For instance, it was once said by this court, in discussing the weight of evidence, that unexplained possession of recently stolen property was sufficient to sustain a conviction of larceny. Shepherd v. State, 44 Ark. 39. But we have since repeatedly held that it is improper, as an instruction on the weight of evidence, for the trial court to tell the jury so. Blankenship v. State, 55 Ark. 244, 18 S. W. 54; Duckworth v. State, 83 Ark. 192, 103 S. W. 601; Thomas v. State, 85 Ark. 138, 107 S. W. 390; Reeder v. State, 86 Ark. 341, 111 S. W. 272. And, in an opinion, this court declared the law to be that in a suit for malicious prosecution the jury may infer malice from proof of want of probable cause. Lavender v. Hudgens, 32 Ark. 763; Bozeman v. Shaw, 37 Ark. 160. But it has been decided that an instruction to that effect would be erroneous. L. B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, 141 S. W. 194; Dare v. Harper, 101 Ark. 37, 140 S. W. 983: Kable v. Carey, A.L.R. 135 Ark. 137, 204 S. W. 748. Other similar instances may be found in the decisions of this court.

The instructions requested by appellants were indeed open to the objection that they related to the weight of the evidence, and were erroneous, unless it be held that as a matter of law the wrongful or negligent failure of a bank to pay the check of a depositor who is a merchant entitles such person to recover substantial damages under all circumstances. No court ever held that, and it is contrary to reason, for everyone familiar with the ordinary run of business affairs knows that some merchants are in such affluent circumstances and their credit is so firmly established that not a

cent of actual injury is sustained by the failure or refusal of a bank to pay a check. The most that has been decided on the subject is that a trial jury may, without direct proof as to the extent of the injury, infer injury resulting to the credit of a merchant from the failure of a bank to honor his check, and in jurisdictions where instructions on the weight of evidence are not forbidden the courts may charge juries to that effect.

This doctrine, which the majority of the judges of this court now invoke as calling for a reversal of the judgment of the circuit court, had a very small beginning to have grown to such dimensions, in the English case of Rolin v. Steward, 14 C. B. 595, 139 Eng. Reprint, 245, 2 C. L. R. 759, 23 L. J. C. P. N. S. 148, 18 Jur. 536. The trial court had, in that case, told the jury that they "ought not to limit their verdict to nominal damages, but should give the plaintiff such temperate damages as they should judge to be reasonable compensation for the injuries sustained." The jury returned a verdict assessing damages in favor of the plaintiff in the sum of £500, and the appellate court affirmed the judgment on appeal, saying: "A breach of contract of this sort must of necessity be injurious to a person in trade, and, if so, the jury might properly take that into consideration and give damages accordingly."

lated under ordinary circumstances
to injuriously affect the credit of a
merchant. I have no quarrel with
that holding, but I think it is wrong
and out of harmony with our own
decisions to say that a trial court
may instruct a jury what inference
they may draw from the circum-
stances. This inference is one of
fact and is not a presumption of
law, and the courts have no right
under the Constitution of this state
to charge juries on the weight of
such inferences. The correct rule
was stated by Judge Hook in deliver-
ing the opinion of the United States
circuit court of appeals for this cir-
cuit in the case of Third Nat. Bank
v. Ober, 102 C. C. A. 178, 178 Fed.
678, where he said: "This rule pro-
ceeds upon the fact, commonly rec-
ognized, that the credit of a person
engaged in such a calling is essential
to the prosperity of his business, and
the dishonoring of his checks is
plainly calculated to impair it and to
inflict a most serious injury. In
common opinion, substantial dam-
age is the natural and probable con-
sequence of the act, and therefore a
substantial recovery may be had
without pleading or proof of spe-
cial injury."

The practice in the English trial courts is for the judges to sum up the evidence in their charge to juries, and they are not forbidden to charge on the weight of evidence; so, in the light of that power, the decision of the appellate court was undoubtedly correct. Many American courts have followed that lead, and the majority of them hold that direct proof of injury is not essential to the recovery of substantial damages, for the reason that an inference of substantial injury may legitimately be drawn from the fact that a trader's check has been dishonored, which is, of itself, calcu

The court in that case went on to decide that no such inference could be drawn as to a person not in business, which shows that the rule creates only an inference of fact under certain circumstances, and that it is not a presumption or rule of law which a trial court can declare to a jury. The trial court can only instruct the jury, as was done in the present case, that in order to ascer tain the amount of the damages consideration should be given to the condition of the plaintiffs and the probable effect the dishonoring of the checks had on their credit.

Nor was there any error in the instruction telling the jury that the burden of proof was on appellants to "show by competent evidence the amount of damages sustained, if any, in excess of nominal damages." This instruction was, of course, to be considered in connection with the