100 Va. 306 | Va. | 1902
delivered the opinion of the court.
This is an action of trespass on the case brought by plaintiff in error, C. B. Wood, against, defendant in error, the American National Bank. .
The averments of the declaration necessary to be stated are: That, at the time of the commission of the grievances complained of, the plaintiff was a commission merchant, or broker, in the city of Bichmond, of good standing and credit; that between December 15, 1899, and March 20, 1900, he was a depositor, and kept a banking account with the defendant; that on March .16, 17, 18, 19 and 20, 1900, he had on deposit in the bank a sum .exceeding $5.92, subject to check; that on March 16, 1900, he drew a check on said bank for $5.92, payable to the order of Warner Moore & Co., a firm dealing largely in grain and like commodities, in the city, with which the plaintiff did a large and profitable business; - that' his credit and general
Thereupon, Warner Moore & Co. informed the plaintiff that his check had been dishonored, and he drew another check in their favor for $5.92 on the defendant bank, which was also presented on the day last named, and dishonored; that plaintiff then informed the bank that he had funds on deposit more than sufficient to meet the check, and, upon investigation, his statement was ascertained to be correct, and the check was paid. The declaration concludes as follows:
“And the said plaintiff avers that, by reason of the negligence and errors of said bank, and of the wrongs thus repeatedly committed 'against him as aforesaid by the said defendant bank, he has been greatly injured in his good name, standing, and credit, and has suffered great loss by reason of the injuries so caused to his good name and reputation, and in his business as a trader and broker, and his standing in the community has been greatly lowered to his damage $2,000.” To this declaration, the defendant pleaded not guilty.
There were two trials of the case. At the first trial, there was a verdict for the plaintiff for $725 damages, which, on the motion of the defendant, and, over the objection of the plaintiff, the court set aside.
At the second trial, the jury returned a verdict for the plaintiff, and assessed his damages at $50. The plaintiff submitted a mootion to set aside that verdict as contrary to the law and evidence, and for misdirection of the jury by the court, which motion the court overruled, and rendered judgment on the verdict. The ease is here upon a writ of error to that judgment.
After the court had overruled the defendant’s motion to set aside the first verdict, as contrary to the law and evidence, the defendant submitted another motion to set the verdict aside on the ground that the fourth instruction misdirected the jury as to the law applicable to the case; the contention on that motion being, that the averments of the declaration did not set out a case which would support an instruction allowing exemplary damages. That motion the court sustained.
Under the rule of practice adverted to, the first enquiry involves the correctness of the ruling of the trial court upon these motions. Bor convenience they will be considered in their inverse order.
And first, as to the sufficiency of the declaration to warrant a recovery of exemplary damages. In jurisdictions where the common-law system of pleading prevails, the doctrine is that special damages, that is to say, such damages as do not necessarily flow from the act or omission complained of, must be specially laid in the declaration, or they cannot be recovered. Lee v. Hill, 84 Va. 919.
On the other hand, when the damages are the natural and proximate result of the act or default complained of, they are general, are legally imported from such act or default, and need not be specially pleaded.
The reason for the distinction is obvious: In the former case,
It is a logical sequence from the foregoing distinction, that where a declaration alleges a state of facts, which, if proved, would, under the law, entitle a plaintiff to a verdict for exemplary damages, such damages may he recovered, although not claimed eo nomine in the declaration. 3 Sedg. on Dam., sec. 1263; 1 Suth. on Dam. (2d ed.), secs. 418, 422, n. 5; 2 Thomp. on Neg., sec. 26; 2 Add. on Torts., sec. 1392, n.; 1 Chitty Pl. 395-6; Southern Express Co. v. Brown., 67 Miss. 260; A. & G. S. R. Co. v. Arnold, 84 Ala. 159; Wilkinson v. Searcy, 76 Ala. 176; Panton v. Holland, 17 John. 92; Taylor v. Holman, 45 Mo. 371; Schofield v. Forrers, 46 Penn. St., 438; Gustafson v. Wind, 62 Iowa, 284; Savannah R. Co. v. Holland, 82 Ga. 259.
In the case of B. & O. R. Co. v. Sherman, 30 Gratt. 602, a declaration charging negligence and setting out the cause of action in general terms was sustained. The principies there enunciated have .'been sinlee followed in a number of cases. The trend of the more recent decisions, however, has been in the direction of greater particularity of averment—a practice to be commended, as tending to prevent surprise, by fully informing a defendant of the charge which he is required to meet. Eckles v. N. & W. R. Co., 96 Va. 71; Dingee v. Unrue, 98 Va. 247.
In some of the States of the Union, by legislative enactment, exemplary damages are put on the same footing with special damages, and cannot be recovered unless specially claimed in the declaration. As was remarked by Stone, C. J., in the case of A. & G. S. R. Co. v. Arnold, supra, if the question were an open one, there is much in the argument in favor of such a requirement. However, much of the mischief, which might result from the laxity of pleading permissible in actions for negligence,
In discussing the subject as to the degree of certainty required, in alleging the facts in the declaration, Ohitty observes: “The principal rule, as to the mode o-f stating the facts, is, that they must be set forth with certainty, by which term is signified, a clear and distinct statement of the facts which constitute the cause of 'action......so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court which % to give judgment.” 1 Chit. Pl. (9th Am. ed.), pp. 232, 233, 254.
The declaration in the case under consideration is in literal compliance with the rule thus succinctly stated. The facts relied on are set out in detail, and with a clearness and precision which could not have been misunderstood by the defendant. It would have been better pleading to have charged that the acts and omissions complained of were willful or wanton, but they were characterized by equivalent expression, as “wrongs repeatedly committed against the plaintiff,” and that was sufficient.
“Where it is material to show, an undue motive or intent, it is seldom necessary in a civil action to state it in terms, it is sufficient if it be substantially shown.
“Thus, in an action against a returning officer for refusing a vote at an election, though a bad intent is necessary to the support of the action, yet the word wrongfully intending to deprive the plaintiff, &c., is sufficiently indicative of a malicious intent.” 1 Chit. Pl. 390.
The relation between a bank and a depositor is that of debtor
If the dishonor of a depositor’s check is willful and malicious, a right to recover exemplary damages would accrue. Birchall v. Third Nat’l Bank, 19 Cent. L. J. 390.
And if the negligence of a bank is so gross as to evince a culpable indifference to consequences, and the rights of the plaintiff, it would be sufficient ground for the allowance of such damages. 1 Sedg. Dam., sec. 368.
In Rollin v. Stewart, 14 C. B. 595, a verdict of £500 damages was returned against a bank for dishonoring a check for a comparatively small amount. The court intimated that it was a very large sum, but did not disturb the verdict, and the matter was finally adjusted by agreement of parties at £200. See also ' Schaffner v. Ehrman, 15 L. R. A. 134.
In the case in judgment, the averments of the declaration, if true, evince such gross negligence, and such a disregard of the bank’s duty and the plaintiff’s rights, as might have warranted the jury in finding that it was acting in bad faith and oppressively and tortiously, and, in their discretion, in awarding exemplary damages against it. The ground upon which the trial court based its action in setting aside the verdict at the first trial cannot, therefore, be sustained.
(2) The next enquiry is as to the sufficiency of the evidence to justify the verdict of the jury.
That he could not say how much he had been damaged by having this dishonored check going through the bank, in which all his business was conducted, and through the clearing-house; that a number of persons had talked with him about it, and, in paying off accounts, some of them had asked him in a joking way if He had money to meet them; that the defendant bank had never turned down one of his checks before, but had, on
The agent of Warner Moore & Co. corroborated the statement of the plaintiff as to the presentation and dishonoring of the check; but stated that turning down the check had not injured the plaintiff in his estimation; that no one in their office knew of the trtasaotion except himself and the cashier. A number of witnesses vouched for the reputation of the plaintiff, as a man who paid his debts. One witness ■ spoke of the volume of the plaintiff’s business, which he stated was unaffected by the bank episode.
O. J. Sands, the president of the defendant bank, was introduced by the pl'ainttiff. He stated that he did not know the particulars about the presentation and dishonor of the check in question, but knew that it was paid on March 20. He gives a detailed statement of the standing of accounts between his bank
He also stated that plaintiff’s “overdraws” had become so frequent, and he had become so careless about making them good, that the bank declined to pay them any longer. He disclaimed all intention on the part of the bank to injure the plaintiff, or his credit—it was desirous of securing depositor’s rather than driving them off.
On March 21, 1900, he addressed a letter to the attorney for appellant to the effect that it was a mistake to suppose that there was sufficient money to his credit to pay the check in question, and calling attention to the fact that other cheeks for a larger amount had been presented and declined.
But on March 23, 1900, he wrote plaintiff as follows:
Mr. O. B. Wood, City:
Dear Sir,— Since my letter to J. Kent Hawley, Esq., I have more fully investigated the facts in connection with the refusal by the teller of this bank to honor your check for $5.92 when it was presented on the 19th instant. I find that the book-keeper had overlooked a deposit made by you previously, and had reported to the teller that you did not have funds to meet the check. The book-keeper is a young man of fine business capacity, and this is the only inadvertence upon his part I have known.
The officers of the bank regret very much that the mistake occurred, and are ready to do anything in their power to remove any injurious impressions that may have been made upon the holder of the check, or ahv other person. They also authorize you to use this letter as you may deem proper. The employees
Yours, very respectfully,
O. J. SANDS, President.
It appears from the evidence that the bank was reprehensively negligent'in not exercising greater caution to inform itself of the standing of accounts with its customer before refusing to honor his cheek. It was, therefore, liable for any actual damage that may have resulted from its negligence.
But there was no element either of malice, bad faith, oppression, or such willful negligence on its part proved as would have warranted the jury in imposing exemplary damages. On the contrary, while the bank was not free from blame, its friendly relations and prior dealings with the plaintiff and prompt disclaimer of all intention to injure him, repel the imputation of malice or bad faith on their part in refusing to honor his check.
Exemplary damages are allowable only where there is misconduct or malice, or such recklessness or negligence as evinces a conscious disregard of the rights of others. But where the act or omission complained of is free from fraud, malice, oppression, or o¡ther special motives of aggravation, damages by way of punishment Cannot be awarded, and compensatory damages only are permissible. Peshine v. Shepperson, 17 Gratt. 485; N. & W. R. R. Co. v. Neely, 91 Va. 539; Burruss v. Hines, 94 Va. 413, 419.
As the reason for allowing exemplary damages is the supposed evil motive of the bank, all circumstances tending to show that it had no such motive may be proved, to prevent the allowance of such damages; and if it appears that the defendant acted in good faith, it cannot be held liable for exemplary damages. 1 Sedg. Dam., secs. 369, 383.
Subjected to this test, it is apparent that the evidence at thte first trial did not warrant a verdict for exemplary damages. So
But it further appears that, at the-second trial, the plaintiff, to maintain the issue on his part, offered to introduce evidence tending to support a claim for exemplary damages; but, the defendant objecting, the court refused to allow the introduction of such evidence, on the ground that the declaration did not set out a case, in which, under the law, exemplary damages could be awarded.
It follows, from what has been said on that subject, that the court error in excluding such evidence, and for that error, the verdict of the jury, on the second trial, must be set aside, and the judgment rendered thereon reversed and annulled, and the case remanded for a new trial to be had in accordance with the views herein expressed.
Reversed.