Opinion
No. 32989.
March 14, 1938.
1. TRIAL.
In depositor's action against bank for damage to credit and reputation resulting from bank's improper dishonoring of checks, where jury first returned verdict for depositor but assessed his damage at "nothing," court's oral statement to jury to "return to your room and find a verdict for something" was reversible error, since it amounted to an oral instruction contrary to statute, and was equivalent to suggestion that verdict for any amount, however nominal, would be acceptable (Code 1930, section 586).
2. BANKS AND BANKING.
In depositor's action for damage to credit and reputation resulting from bank's improper dishonoring of checks, where evidence disclosed that prior to the dishonoring of checks depositor had given check for $8 but figures in marginal end of check appeared to be $80 and bank cashed check for $80 resulting in other checks being returned to payees for insufficient funds, comparative negligence instruction was improper, since comparative negligence statute was inapplicable (Code 1930, section 511).
3. BANKS AND BANKING.
The comparative negligence statute was inapplicable to depositor's suit for damages to credit and reputation resulting from bank's improper dishonoring of checks after bank had breached contractual obligation by cashing for $80, an $8 check, but on which figures in marginal end appeared to be $80 (Code 1930, section 511).
4. BANKS AND BANKING.
In depositor's action for damages to his credit resulting from bank's improper dishonoring of checks, the jury could consider depositor's admission, that no harm had been done by occurrence, allegedly made in conversation with cashier when adjustment of error in depositor's account was made by bank, and testimony regarding bank's offer and refusal thereof by depositor to write payees of dishonored checks letter of explanation.
APPEAL from the circuit court of Grenada county. HON. JOHN F. ALLEN, Judge.
W.I. Stone, of Coffeeville, for appellant.
There certainly is no need of extended argument in this case as the circuit judge gave us a peremptory instruction and other instructions clarifying the claim, and gave the jury needed instruction as to the features of the case on which they would base the amount of their verdict. The jury went out and proceeded to ignore the whole thing and brought back a verdict for the defendant in direct defiance of the court's order in writing in the instructions.
The court should have granted our motion for a new trial; not having done so, it is our earnest belief that we are entitled to a verdict of reversal for the sole purpose of fixing the amount of damages, and that the case be remanded for that purpose alone.
In the light of Grenada Bank v. Lester, 126 Miss. 442, I do not see how there can be any division of opinion as to the propriety of the peremptory instruction in this case. That says plainly: "Where the bank wrongfully dishonored the check it is liable for substantial damages to the injured depositor as compensation; and this is true regardless of whether the depositor is a trader, business man, private citizen, or professional man; when wrongful dishonor is shown substantial damages may be inferred because of the peculiar nature of the wrong; and it is for a jury to assess reasonable compensation to the injured party, if he is substantially injured. Some authorities say that the damages in all of such cases are substantial but should be temperate. The assessment must be reasonable according to the facts and circumstances of the particular case, with reference to the extent of the injury suffered by the depositor in his credit standing and reputation. We think this is the correct view and we adopt it."
There are many cases, hundreds of them, saying that the judge cannot give instructions except in writing, and the one that seems to cover this one better is Gilbert v. State, 78 Miss. 300, and there the jury went out and came back in a murder case and asked the court for further instructions and specifically as to whether or not they had the right to find a verdict of manslaughter, and the court gave them orally these words: "You have the power so to do," or words to that effect. This promptly met with a reversal as the court held that in any case, civil or criminal, the law was supreme that the judge could not voluntarily give instructions and what instructions were given had to be given in writing.
Dement v. Sumner, 175 Miss. 290; Williams case, 32 Miss. 389; G. S.I. v. Simmons, 153 Miss. 327; Chadwick v. Boushe, 174 Miss. 75.
We were entitled to a peremptory instruction on account of the fact that there was no dispute about the check, that the check was turned down wrongfully, the man was a trader, his business was ruined, and all of this proved without contradiction in the slightest degree.
Smith v. Gulf, etc., 158 Miss. 188; Fletcher v. Sovereign Camp, 81 Miss. 249.
The law as announced in all the books is plainly that when there is a conflict, if there is a conflict, that the words written out control.
7 Am. Juris., sec. 129, page 860; Farmers' State Bank v. Kaffler, 70 A.L.R. 723; 3 R.C.L., sec. 81.
A.M. Carothers and S.C. Mims, Jr., both of Grenada, for appellee.
The case was submitted to the jury under instructions most favorable to the appellant, the jury has acted, and we submit that appellant has shown no real reason whatever why the cause should be reversed.
Hilton v. Jesup Banking Co., 128 Ga. 30, 57 S.E. 78, 11 L.R.A. (N.S.) 224.
The appellant is not in position to complain of the action of the court below in sending the jury back to return a verdict "for something," after the jury had first returned a verdict assessing his damages "at nothing," as the second verdict was more favorable to him than the first.
It is the prerogative of the jury to fix the damages in cases of this nature.
Hilton v. Jesup Co., 128 Ga. 30, 57 S.E. 78, 11 L.R.A. (N.S.) 224, 10 Ann. Cas. 987.
We respectfully submit that in the case at bar the record discloses that no special damages were sustained by the appellant, and the jury had the right to decide from the evidence whether or not he was substantially injured, and to assess his damage or compensation in proportion to the injury they found he had sustained.
There is no question of malice, oppression or wilful wrong in this case, so, of course, the appellant was not entitled to any damage for embarrassment or humiliation, or punitive damages of any nature.
We submit that on the record in this case, we were entitled to the instruction for nominal damages, which we requested and the court refused. The court, however, having left the whole matter of damages as to amount to the jury, and the jury having found as to amount, we further submit that the court below was correct in overruling the motion for a new trial.
Saenger Theatres Corp. v. Herndon, 178 So. 86.
With reference to the alleged error of the court below in instructing the jury to return to the jury room and find a verdict for "something," we respectfully submit that counsel for appellant has utterly failed to cite any authority condemning this action on the part of the court. In this action the court did not charge the jury on any phase of the case, he gave no new or additional instructions of any nature whatever. It was simply a matter of the court telling the jury to follow the instructions already given.
The Supreme Court will not reverse a case, merely because of erroneous instructions, unless the party complaining is injured thereby.
Hampton v. State, 132 Miss. 154, 96 So. 165.
Argued orally by W.I. Stone, for appellant.
ON SUGGESTION OF ERROR.
After a consideration of the additional briefs called for and which have been submitted on the suggestion of error in this case, we have decided to withdraw the former opinion rendered herein, and substitute in lieu thereof this opinion, as follows:
Appellant sued the Grenada Bank for damages to his credit and reputation in the territory where he was conducting the business of a trader in buying pigs and yearlings, on the ground that the bank had dishonored several of his small checks at a time when he had sufficient funds on deposit with which to pay the same.
It is shown that prior to the dishonoring of these checks appellant had given a check on the bank, payable to a negro, Jim Winters, for the sum of $8, which amount was specified in the face thereof as "Eight and no/100" Dollars, while the figures in the marginal end of the check appeared to be $80. The bank cashed the check for $80, and thereupon illegally charged the account of appellant with $72 in excess of the amount that should have been charged, resulting in the several small checks hereinbefore referred to being thereafter returned unpaid to the payees, for "insufficient funds."
At the trial the court below properly granted a peremptory instruction in favor of the appellant, submitting to the jury the right and the duty to fix compensatory damages, after having refused an instruction for only nominal damages. The jury first returned a verdict in favor of appellant, but assessing his damages at "nothing," which the court declined to accept. Thereafter, a further verdict was returned for the sum of $5, which the appellant contends amounted to merely nominal damages. Before the jury retired to consider this second verdict, the court instructed the jury orally to "return to your room and find a verdict for something." This was equivalent to a suggestion from the court that a verdict for any amount, however nominal, would be acceptable and proper, and the statement amounted to an oral instruction contrary to section 586, Code of 1930, and constituted reversible error. Williams v. State, 32 Miss. 389, 66 Am. Dec. 615; Gilbert v. State, 78 Miss. 300, 29 So. 477.
Appellant further assigns, as error, the giving of the following instruction: "The Court instructs the jury for the defendant that if they believe from the evidence in this case that the plaintiff was guilty of negligence in the manner in which he made out the check to Jim Winter, dated July 9, 1936, and which check was introduced in the evidence in this case, and that such negligence on the part of the plaintiff contributed to the checks described in the declaration herein being later turned down by the defendant and payment thereof refused, the damages to be awarded to the plaintiff shall be diminished by the jury in proportion to the amount of negligence attributable to the plaintiff." This instruction was erroneous for the reason that the comparative negligence statute, section 511, Code of 1930, is not applicable to a case of this character. This suit involves the breach of a contractual obligation wherein there was a failure on the part of the appellee to pay the exact amount clearly written in the face or body of the check, as required by law, without regard to the figures appearing in the marginal end thereof.
While the jury was entitled to take into consideration the admission of the appellant to the effect that "no harm had been done by the occurrence," alleged to have been made in a conversation with the cashier at the time when the adjustment of the error in his account was made by the bank, and was also entitled to consider the testimony as to the bank's offer, and refusal thereof by the appellant, to write the payees of the checks a letter of explanation as to how the error occurred, so as to reduce, at least to some extent, whatever damages that may have been caused by such error, along with the other facts and circumstances testified to, and return such a verdict as it might deem right and proper to fairly compensate the appellant for any damages which the jury may have believed from the evidence he had sustained, we are of the opinion that the cause should be reversed for a new trial because of the errors hereinbefore mentioned.
Suggestion of error overruled.