Wood v. Am. Nat. Bank

• Decision Date: 03 December 1902
• Citation: 100 Va. 306,40 S.E. 931
• Parties: WOOD v. AMERICAN NAT. BANK.
• Court: Virginia Supreme Court

40 S.E. 931

100 Va. 306

WOOD

v.AMERICAN NAT. BANK.

Supreme Court of Appeals of Virginia.

Jan.23, 1902.

banks—deposits—dishonor op check—action for damages—exemplary damages — sufficiency of declaration — sufficiency of evidence—new trial—appeal —review.

1. When there have been two trials of an action at law, and the verdict of the jury on the first has been set aside by the trial court, and proper exception taken, and the evidence certified, the appellate court will examine the proceedings and evidence on the first trial; and, if it discovers that the court erred in setting aside the verdict, it will annul all subsequent proceedings and render judgment thereon.

2. A declaration alleged that plaintiff, being a depositor in the defendant bank, drew a check thereon, but that, though his deposit was sufficient to pay such check, it was twice presented for payment, and each time dishonored, and charged that by reason of the negligence of defendant, and of the wrongs thus committed against plaintiff, he has been greatly injured in his good name and credit, and thereby suffered great loss. Held, that plaintiff was entitled to prove exemplary damages.

3. Plaintiff's check was wrongfully dishonored by the defendant bank, and, when plaintiff asked defendant's bookkeeper why it was dishonored, the bookkeeper said he knew nothing about the matter. Plaintiff then drew another check for the same amount to the same payee, and went with him to the bank. The teller again refused to pay, saying there were no funds, but, after consultation with the bookkeeper, said there had been a mistake, and paid the check. The relations between plaintiff and defendant had always been pleasant, and defendant promptly wrote plaintiff, disclaiming all intent to injure him, and offered to do all it could to remove any injurious impressions arising from its mistake, and authorized plaintiff to use its letter for that purpose. Held, that plaintiff was not entitled to exemplary damages.

4. Exemplary damages are allowable only where there is misconduct or malice or such reckless negligence as evinces a conscious disregard of the rights of others, and, where these elements are lacking, only compensatory damages are permissible.

Error to law and equity court of city of Richmond.

Action by C. B. Wood against the American National Bank. Judgment in favor of plaintiff, and he brings error. Reversed.

J. Kent Rawley and J. Preston Carson, for plaintiff in error.

O'Ferrall & Regester and Jas. Mullen, for defendant in error.

WHITTLE, J. 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 Richmond, of good standing and credit. That betw een 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 standing with that firm was of great value to the plaintiff. That the check in question was properly indorsed, and on March 17, 1900, was placed in the First National Bank of the City of Richmond. That it passed regularly through the clearing house of the city, and was on March 19, 1900, twice duly presented to the defendant bank for payment, which was refused. That on March 20, 1900, the check was again duly presented, and payment again refused.

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 hassuffered 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 that 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 motion 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 case is here upon a writ of error to that judgment

The practice in this state, now carried into statute, is that when there have been two trials of an action at law, and the verdict of the jury on the first trial has been set aside by the trial court, and proper exception taken, and the evidence has been certified, for this court to examine the proceedings and evidence on the first trial, and, if it discovers that the court erred in setting aside the verdict on that trial, it will annul all subsequent proceedings and render judgment thereon. Acts 1891-92, p. 962; Jones v. Cotton Mills, 82 Va. 140, 149, 3 Am. St. Rep. 92; Chapman v. Investment Co., 96 Va. 177, 31 S. E. 74; Patteson v. Railway Co., 94 Va. 16, 26 S. E. 393.

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 inquiry involves the correctness of the ruling of the trial court upon these motions. For convenience, they will be considered in their inverse order.. And (1) 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, 6 S. E. 473.

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 a distinct averment is essential to put a defendant on notice of the nature of the demand which he is required to meet, while in the latter a recital of the act or default is sufficient for that purpose.

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 be recovered, although not claimed eo nomine In the declaration. 3 Sedg. Dam. § 1263; 1 Suth. Dam. (2d Ed.) §§ 418, 422, note 5; 2 Thomp. Neg. § 26; 2 Add. Torts, § 1392, note; 1 Chit Pi. 395, 396; Express Co. v. Brown, 67 Miss. 260, 7 South. 318, 8 South. 425, 19 Am. St. Rep. 306; Railroad Co. v. Arnold, 84 Ala. 159, 4 South. 359, 5 Am. St. Rep. 354; Wilkinson v. Searcy, 76 Ala. 176; Panton v. Holland, 17 Johns. 92, 8 Am. Dec. 369; Taylor v. Holman, 45 Mo. 371; Schofield v. Ferrers, 46 Pa. 438; Gustafson v. Wind, 62 Iowa, 284, 17 N. W. 523; Railway Co. v. Holland, 82 Ga. 259, 10 S. E. 200, 14 Am. St Rep. 158.

In the case of Railroad Co. v. Sherman's Adm'x, 30 Grat. 602, a declaration charging negligence, and setting out the cause of action in general terms, was sustained. The principles there enunciated have been since 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' Adm'x v. Railroad Co., 96 Va. 71, 25 S. E. 545; Dingee v. Un-rue's Adm'x, 98 Va. 247, 35 S. E. 794.

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 Railroad 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 can be obviated by resort to the provisions of section 3249 of the Code, which entitles litigants to demand that a statement be filed of the particulars of the claim, or of the ground of defense, when not sufficiently described in the notice, declaration, or other pleading. City of Richmond v. Leaker (Va.) 37 S. E. 348.

In discussing the subject as to the degree of certainty required in...