85 So. 529 | Ala. | 1920
Appellee sued appellant for damages, alleging that appellant had refused to pay appellee's check for the sum of $10, notwithstanding appellee at the time had funds to that amount on deposit with appellant and subject to her check. In the complaint upon which the case was submitted to the jury there was no allegation of special damages. As originally framed, several counts contained an allegation that the effect of defendant's statement that plaintiff had no account at the bank, made when payment was refused, was to charge that plaintiff had obtained the goods, for which the check had been given, by a worthless check in violation of the criminal law, and that in consequence of such false statement plaintiff had been arrested and imprisoned; but this allegation was stricken on defendant's motion. The court instructed the jury to find for the plaintiff. The propriety of this instruction, under the evidence, is not questioned. Errors assigned relate to questions of evidence and certain instructions touching upon the measure of damages.
The charge which we have designated on the margin of the record as charge 1, given on plaintiff's request, was error. On the facts hypothesized, punitive damages were not a matter of right, as the charge asserted, but were discretionary with the jury. Cox v. B. R. L. P. Co.,
There is authority for the proposition that, even though the dishonor of plaintiff's check was the result of mere inadvertence on the part of the bank, and there was no proof of special damages, recovery should not be limited to nominal damages, but "temperate" damages should be awarded by way of compensation. 2 Morse on Banks (5th Ed.) § 458, cases cited in note 3a. But the rule of the cases to be found noted in the authority supra is an exception to the general rule of the common law that, save where a tort is committed maliciously, willfully, or wantonly, allegation and proof is necessary to sustain a recovery of special damages. And the authorities indicate that the rule, as applied to cases like that before us, is based upon public policy. As said in Patterson v. Marine Nat. Bank,
"A bank is an institution of a quasi public character. * * * The business of the community would be at the mercy of banks if they could at their pleasure refuse to honor their depositors' checks, and then claim that such action was the mere breach of an ordinary contract, for which only nominal damages could be recovered, unless special damages were proved."
Upon some such consideration was the rule founded in its beginning, and hence it was that stress was laid by the courts upon the fact that the depositor was a merchant or trader.
"Though it is admitted by the authorities that the right to recover substantial damages does not depend on the depositor's occupation, there is a distinction between an ordinary depositor and a depositor who is a merchant or trader. If the depositor is a merchant or trader, it will be presumed without further proof that substantial damages have been sustained; but, if the depositor is not a merchant or trader, there is no such presumption of substantial injury, and his recovery should be a nominal one, unless he alleges and proves some special damage." Note to Commercial Nat. Bank v. Latham, Ann. Cas. 1913A, 999 (
In Rolin v. Stewart, 14 C. B. 595, 78 E. C. L. 595, the leading case on this subject, it was said by Williams, J.:
"I think it cannot be denied that, if one who is not a trader were to bring an action against a banker for dishonoring a check at a time when he had funds of the customer in his hands sufficient to meet it, and special damage were alleged and proved, the plaintiff would be entitled to recover substantial damages; and when it is alleged and proved that the plaintiff is a trader, I think it is equally clear that the jury, in estimating the damages, may take into their consideration the nature and necessary consequences which must result to the plaintiff from the defendant's breach of contract, just as in the case of an action for slander of a person in the way of his trade, or in the imputation of insolvency on a trader, the action lies without proof of special damage."
In Wiley v. Bunker Hill Nat. Bank,
"Special damages may also be recovered, if they are properly alleged. * * * In the case of a trader, injury to his credit may be inferred from the fact that he is a trader, and substantial damages may be found and given upon proof of that fact, without anything more."
Such is the rule in New York. Burroughs v. Tradesmen's Nat. Bank, 87 Hun, 6, 33 N.Y. Supp. 864, affirmed in
We think the reason of the matter and the precedents of the common law, which have been followed by this court in analogous cases (Age-Herald Pub. Co. v. Waterman,
The cause of action in a case of this sort arises out of the bank's implied contract — and out of the contract, a duty — to pay its depositor's check upon demand. Liability upon a failure to pay may be enforced in tort or in contract. The counts in this complaint are framed in tort. Wilkinson v. Moseley,
The answer of the witness Mitchell, that when he went to see plaintiff she was in the calaboose, was not responsive, and defendant's motion to exclude should have been sustained, for it was immaterial and irrelevant to any issue made in the cause, but probably prejudicial, nevertheless, to defendant.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.