Arnold v. City of Stanford.

had the legal right to do. In doing it, it so acted as to create a nuisance, for which it is liable, upon the principle that a municipal corporation is liable for its wrongful act when done within the scope of its charter authority, as an individual would be bound by a similar act if done by its agent or servant acting within the scope of his authority. This act sued for is a nuisance under the facts stated. Clayton v. City of Henderson, supra. But not being the act of the city, it is the act of those who actually set up and maintained the pesthouse. It was thus a private nuisance, of the same legal character that the es tablishment of a slaughterhouse by individuals might be. It is admittedly true that the city could, by ordinance and prosecution, so punish perpetrators of nuisances within its jurisdiction as to prevent them. For a failure to enact and execute such ordinances, will the city be liable? We are of opinion that it will not. It would be a failure to discharge its political duties for which it is not liable to a suit at law. Patch v. City of Covington, 17 B. Mon., 722. 66 Am. Dec., 186; Wheeler v. City of Cincinnati, 19 Ohio St., 19, 2 Am. Rep., 368; Rivers v. City Council of Augusta, 65 Ga., 376, 38 Am. Rep., 787; Davis v. City of Montgomery, 51 Ala., 139, 23 Am. Rep., 545; Dill. Mun. Corp., sections 950. 951. In Rivers v. City Council of Augusta, 65 Ga., 376. 38 Am. Rep., 787, the city council had passed an ordinance forbidding cattle running at large in the streets, but subsequently suspended it. During the suspension the plaintiff was gored by a cow running at large in the street. It was held that the city was not liable for a failure to enact and enforce an ordinance on the subject of cattle running at large within its corporate limits. The matter was held to be one of governmental discretion. In Davis v. City of Montgomery, 51 Ala., 139, 23 Am. Rep., 545, a house

American National Bank v. Morey

was destroyed by fire set by sparks from an engine, which was, by ordinance, a nuisance, subject to abatement, but which the city had neglected to abate. It was held that the plaintiff could not maintain an action against the city for its failure to take steps to abate nuisances within its limits, unless, perhaps, it had appeared that the corporation had acted corruptly, and abused its powers.

In our opinion, the petition failed to state a cause of action against the city in this case. Judgment affirmed.

CASE 104-ACTION TO RECOVER DAMAGES FOR DEFENDANT'S WRONGFUL REFUSAL TO HONOR PLAINTIFF'S CHECK.-SEPTEMBER 26.

American National Bank v. Morey.

APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.

Held: 1. In an action against a bank to recover damages for its wrongful refusal to honor a depositor's check, plaintiff, who, at the time her check was dishonored was pursuing a special study in a strange city, may recover for any time she lost, or any expenses she incurred, or for any loss of credit, of business, or of instruction that she sustained, by reason of the dishonor of the check; but as only compensatory damages are allowed she may not recover for humiliation or mortification of feeling.

2. The fact that plaintiff had a nervous chill when her check was protested and returned to her is not to be considered in estimating the damage, as the chill was not such a thing as should reasonably have been anticipated from persons. of ordinary health and strength.

3. It was error to give an instruction authorizing the jury to award punitive damages, there being nothing to indicate actual malice, oppression, or bad motive..

American National Bank v. Morey.

HUMPHREY, BURNETT & HUMPHREY, FOR APPELLANTS.

POINTS.

1. The motive with which a contract to pay money is violated, is not material, and ought not to authorize the infliction of punitive damages.

2. Where malice is alleged, in an action for breach of contract, it must be proved, and in the absence of such proof an instruction to find punitive damages hypothecated upon malice, is error.

3. Refusal to submit to the jury the question of the bank's intention or design in refusing to pay plaintiff's check was

error.

4. The rule that damages are presumed when a trader's or a merchant's check is wrongfully dishonored, does not apply to an individual not engaged in mercantile pursuits. In such a case, damages must be alleged with particularity, and proven.

AUTHORITIES CITED.

Morse on Banking, sec. 289; 99 Ky., 263; Sedgwick on Damages, sec. 603; Same, vol. 28 ed. p. 247; Smith v. W. U. Tel. Co., 83 Ky., 104; Chapman v. Same, 90 Ky., 265; James Co. v. Continental Bank (Tenn.) 51 L. R. A., 255; Mt. Sterling Nat. Bank v. Greene, 99 Ky., 262; Brooks v. Tradesmen's Nat. Bark, 69 Hum., 202 (23 N. Y. Supp., 802); Beatty v. Thompson's Admr., 23 R., 1850; L. & N. R. R. Co. v. McCombs, 21 R., 1238; A. & E. Ency. of Law, 247; Reeves v. French, 20 R., 221; Stovall v. Com., 23 R., 105; Bromage v. Prosser, 4 B. & C., 247 (10 E. C. L., 321); Ferguson v. Kinnou!!, 9 Cl. & F. 321; Page v. Cushing, 38 Maine, 523; A. & E. Ency. of Law (2d ed.) vol. 19, p. 628; Ohio Valley Tel. Co. v. Meyer, &c., 56 S. W., 673; Rap. & Law Dict. p. 784; 2 Bouv. Law Dict (Rawles Ed.) p. 295; Black's Law Dict., p. 745.

R. C. & J. J. DAVIS, FOR APFELLEE.

POINTS AND AUTHORITIES.

1. Liability of bank to depositor for dishonoring check. Measure of damages. Patterson V. Marine Nat. Bank, 130 Pa. St., 419, 17 Am. St. Rep., 778; Schaffner v. Ehrman, 139 III., 109, 15 L. R. A., 134; Svendsen v. State Bank of Duluth, 64 Minn., 10, 31 L. R. A., 552; Birchall v. Third Nat. Bank, 19 Cent. L. J., 390; Atlanta Nat. Bank v. Davis, 96 Ga., 334, 51 Am. St. Rep.. 140; Nat. Bank of Lebanon v. Boles, 12 Ky. Law Rep., 422; Mt. Sterling Nat. Bank v. Greene, 99 Ky., 262; J. M. James Co. v. Bank (Tenn.) 80 Am. St. Rep., 865 (note).

2.

American National Bank v. Morey.

Instructions. Definition of malice. Ratliffe v. Louisville Courier Journal Co., 18 Ky. Law Rep., 293; Bouvier's Law Dictionary (Head of malice); Am. & Eng. Ency. of Law 1st ed.) vol 14, p. 5; Courier-Journal Co. v. Sallee, 20 Ky. Law Rep., 634-637.

3. Erroneous instruction no ground for reversal unless prejudicial to substantial rights of party complaining. Morton v. Lawson, 1 B. Mon., 45; Sims v. Reed and Wife, 12 B. Mon.. 51; Ratliffe v. Courier-Journal Co., 18 Ky. Law Rep., 293; Fitzgerald v. Barker, 4 J. J. Marsh, 398; Emanuel v. Cocke, 6 Dana, 214; Price v. Evans, 4 B. Mon., 388.

OPINION OF THE COURT BY JUDGE HOBSON-REVERSING.

On April 4, 1990, Joseph W. Morey deposited with appellant, the American National Bank, $150 to the credit of the appellee, Virginia R. Morey, who was his wife. In the latter part of April, Morey raised a check given him by Belknap & Co. from $800 to $1.800, and drew the money on it from appellant. On May 4th he committed suicide.. Appellant settled with Belknap & Co. for the loss. On May 24th appellee deposited with the bank $72, and this was credited on her pass book underneath the $150 which had theretofore been entered on it. In the month of September, 1900, she was in Chicago, Ill.. taking lessons with Mrs. Leonide C. Lavaron, with the idea of coming back to Louisville, and doing burnt-wood work. On September 15th, when she had been there one week, and expected to continue a month longer, she gave Mrs. Lavaron a check for $30 on appellant, to pay for two weeks' lessons and materials bought of her. She had previously drawn two checks for $25 each, which had been paid. When the $30 check reached appellant, it indorsed on it, "Has but twelve dollars to her credit," and refused to pay it. The check was returned from Chicago, and, after passing through the hands of the different indorsers, was returned by Mrs. Lavaron to appellant. She was among strangers, had no

American National Bank v. Morey.

friends in Chicago, was very much mortified, had a nervous chill, and finally had to be taken to her mother-in-law, at Englewood, Ill. She telegraphed to Louisville, but appellant persisted in refusing to pay, and finally money was forwarded to her from some relatives in Louisville, with which she paid Mrs. Lavaron, and, as we understand the evidence, returned to Louisville. In November she filed a suit against appellant to recover the balance of her deposit, and also filed this suit to recover damages for the refusal to pay the check of $30, charging that the statement of the defendant returned with the check was false and malicious, made with the intent to injure the plaintiff; that by reason thereof her credit had been injured. she had been greatly humiliated, and had endured great mental suffering, to her damage in the sum of $1,000. After the suit to recover the deposit was filed, appellant paid to her the balance due as shown by her passbook, $162, and filed answer in the suit for damages, denying the allegations of the petition. That case was tried later, resulting in a verdict and judgment for $600, to reverse which this appeal is prosecuted.

The reason that the bank did not pay the check was that it conceived the idea that the $150 deposited to appellee's credit by her husband was his money, and that it had a right to set off against it the $1,000 it had lost by reason of his raising the Belknap check. So it charged off the $150 in her account, and credited it to his account. But it gave her no notice of this, and it manifestly had no right to do so, as far as the proof shows. The court instructed the jury that if at the time the check was presented to the defendant the plaintiff had money in the bank deposited to her credit sufficient to pay the check, and the defendant refused to honor it, then they should find for her such a sum