American National Bank v. Morey. in damages as would fairly compensate her for any loss or impairment of credit she sustained, and for any humiliation or mortification of her feelings she had been subjected to, by reason of the refusal to honor her check; and if the defendant maliciously refused to honor the check, then, in addition to compensatory damages, they might award such additional sum, by way of punitive damages, as in their discretion they deemed proper. The propriety of these instructions is the chief question on the appeal. In Bank v. Green, 99 Ky., 262 (18 R., 178) 35 S. W., 911, 32 L. R. A., 568, it was held that if a bank refuses to honor the check of its customer without sufficient justification, he has his action for damages against the bank; citing Moss, Bank, section 458. But in that case the measure of damages was not determined. The authorities are uniform that the relation between the bank and the depositor is that of debtor and creditor. They are equally uniform that when the bank fails to honor the check of its depositor. when he has funds with it sufficient to pay the check, a right of action accrues at once, and that the recovery is not to be limited to nominal damages. Mr. Bishop says the banker for this may be sued in tort, though the wrong is believed to be without name. Bish. Noncont. Law, section 491. In 5 Am & Eng. Ency. Law, p. 1060, the rule as to the measure of damages is thus stated: "The depositor, by proving special loss, is always entitled to recover substantial damages. But if unable to show any special loss or injury, the better opinion seems to be that he would still be entitled to recover such moderate damages as the jury should judge to be a fair and reasonable compensation for the injury which he must have sustained, for it is almost impossible for a check to be dishonored without reflecting upon the character and credit of the drawer: the extent of American National Bank v. Morey. the injury being within the peculiar province of the jury to determine." This is taken from the language of Lord Campbell, C. J., in Rolin v. Stewart, 14 C. B., 595, and seems to be supported by the later cases in England and in this country. In Patterson v. Bank, 130 Pa., 419, 18 Atl., 632, 17 Am. St. Rep., 778, a judgment for $300 for dishonoring a check was affirmed. The trial court charged the jury that the plaintiff was entitled to recover substantial damages, and that they might find punitive damages "if, under all the circumstances in the case, the defendant unnecessarily and unreasonably acted in disregard of the rights of plaintiff, and with partiality against him." court said "A bank is an institution of a quasi public character. It is chartered by the government for the purpose, inter alia, of holding and safely keeping the moneys of individuals and corporations. It receives such moneys upon an implied contract to pay the depositors' checks upon demand. Individual and corporate business could hardly exist for a day without banking facilities. At the same time, the business of the community would be at the mercy of banks if they could at their pleasure refuse to honor the depositors' checks, and then claim that such action. was a mere breach of an ordinary contract, for which only nominal damages could be recovered, unless special damages were proved. There is something more than a breach of contract in such cases; there is a question of public policy involved, as was said in Bank v. Mason, 95 Pa., 113, 40 Am. Rep., 632; and a breach of the implied contract between the bank and its depositor entitles the latter to recover substantial damages. In this case the jury do not ap pear to have given more; they evidently did not award punitive damages" In Schaffner v. Ehrman, 139 III., 109, 28 N. E., 917, 15 L. R. A., 134, 32 Am. St. Rep., 192, judg American National Bank v. Morey. ment for $450 damages was affirmed, where the dishonor of the checks was due to a mistake of the bookkeeper in charg ing the checks of another customer to the account. It was held that there was no evidence of malice, and there seems from the report of the case to have been little proof of special damage. The court laid down as the proper measure of damages a reasonable compensation for the injury the customer must have received from the dishonoring of his checks. In Bank v. Goos, 39 Neb., 437, 58 N. W., 84, 23 L. R. A., 190, when Goos' check was dishonored, he was arrested and placed in prison, and newspapers were printed and sold on the streets, publishing the fact. The court reversed a verdict for the plaintiff, on the ground that the proper measure of damages was not given the jury. It held that there could be no punitive damages, that his ar rest and imprisonment could not be considered, and that he could only recover such temperate damages as would be a reasonable compensation for the dishonor of the check. Substantially the same rule was laid down in Svendsen v. Bank, 64 Minn., 40, 65 N. W., 1086, 31 L. R. A., 552, 58 Am. St. Rep., 522; J. M. James Co. v. Continental Nat. Bank (Tenn.), 58 S. W., 261, 51 L. R. A., 255, SO Am. St. Rep., 857; Bank v. Davis, 96 Ga., 334, 23 S. E., 190, 51 Am. St. Rep., 139. There was some evidence as to loss of credit, and, aside from this, the instruction so far as it submitted this as an element of damage, was correct. But there was nothing in the case to indicate actual malice, oppression. or bad motive on the part of the bank, and no instruction should have been given as to punitive damages. None of the cases allow a recovery for humiliation or mortification of feeling where compensatory damages only are allowed, and the instruction of the court, in so far as it allowed a recovery for this, was improper. The fact that the plaintiff Locke v. Commonwealth. had a nervous chill when the check was protested and returned to her, and had to be taken to her mother-in-law's、 was immaterial, as the nervous chill was not the natural result of the protest of the check, or such a thing as should reasonably have been anticipated from persons of ordinary health and strength. On the contrary, the plaintiff may recover for any time she lost, or any expenses she incurred, or for any loss of business or instruction that she sustained, by reason of the dishonor of the check. Her pleading does not appear to have been drawn under the view of the law we have indicated, and on the return of the case she may have leave to amend her petition, and set out her damages specially, if she desires to do so. Robinson v. W. U. Tel. Co. (24 R., 452) (68 S. W., 656). The action rests upon the ground that the bank is charged by law with certain duties. and that for a breach of these duties it is liable to the party injured for the damages done him. The measure of these damages is the same as in the case of the breach of other duties imposed by law. Judgment reversed, and cause remanded for a new trial. CASE 105-INDICTMENT AGAINST W. N. LOCKE FOR VIOLATING LOCAL Locke v. Commonwealth. APPEAL FROM BARREN CIRCUIT COURT. DEFENDANT CONVICTED AND APPEALS. AFFIRMED. LOCAL OPTION-INDICTMENT SUFFICIENCY OF EVIDENCE-CONTEST OF Held: 1. An indictment for a violation of the local option law need not show that the petition under which the vote was taken Locke v. Commonwealth. was filed in the county court at the term preceding that at which the election was ordered. 2. As the prosecuting witness testified, in substance, that he went into defendant's drug store, and, without telling his business, walked to the back of the store, and laid his money on a desk or something of that kind back there, and "a little pale fellow," who was the only person in there, handed him a bottle of whisky, and that, though he did not call for the whisky, he went there hunting for whisky, there was sufficient evidence to warrant the submission of the case to the jury, though defendant himself was not present. 3. Under Kentucky Statutes, sections 2570, 2571, providing that no trick or device shall be allowed to defeat the local option law, and that a conviction may be sustained against the person in possession of the house in which the liquor is obtained, it was proper to instruct the jury that, if the sale was made by an authorized agent or clerk in the regular course of business, the defendant was guilty. 4. Judgment against the contestants in a proceeding for the contest of a local option law election is conclusive upon every person in the territory affected, and therefore, in a prosecution for a violation of the law, the defendant is estopped to claim that the election was void by reason of the fact that the petition for the election was not filed in the county court at the term preceding the one at which the election was ordered, though that question may not have been raised in the contest case, the judgment being conclusive as to every question which might have been properly raised. J. A. CONYERS AND HERMAN MORRIS, ATTORNEYS FOR APPELLANT. D. J. WOOD, FOR THE COMMONWEALTH. (No briefs in the record.) OPINION OF THE COURT BY JUDGE HOBSON AFFIRMING. Appellant was indicted and convicted in the Barren circuit court for violating the local option law. It is insisted for him that the indictment is insufficient, because it does not show that the petition under which the vote was taken was filed in the county court at the term preceding that at which the election was ordered. In Com. v. Cope (21 R., 845) (53 S. W., 272), the previous rulings were reviewed Vol. 113-55 |