(dissenting). The first and readiest answer to the contention that prejudicial error was committed by the court’s refusal to charge the jury as to the right of appellants to recover substantial damages is that the jury’s verdict awarded substantial damages, and no prejudice resulted even though the ruling of the court was incorrect. An award of fifty dollars is not an award of nominal damages. That sum is a substantial one, and is, in this instance, apparently adequate according to the evidence adduced. At any rate, the evidence in the record is such that we cannot say that the jury erred in the assessment of damages. The court instructed the jury that “in arriving at what is a fair and just sum for the damages sustained’’they should “take into consideration the importance of those checks to the plaintiff’s business, also the size of their account, also the plaintiff’s standing as business men in their community” and “fix the damages at such sum as you think will be a fair and just compensation for the injury sustained. ’ ’ In view of the award of a substantial sum as damages, it ought to be presumed that the jury followed that instruction and that no prejudice resulted from the court’s refusal to charge the jury concerning appellant’s right to recover substantial damages, or from the instruction that there would only be liability for nominal damages “unless it is shown by the evidence that they (appellants) in fact suffered actual damages,” even if the court committed error in those respects. This court should not annul the judgment on account of immaterial error.
But it seems clear to me that the court did not err in its charge. An instruction telling the jury that appellants were entitled to substantial damages would have been a charge on the weight of the evidence, which is prohibited by the Constitution, article 7, section 23. Principles of law appropriately declared in opinions of courts with respect to the weight and sufficiency of evidence are out of place in an instruction to a trial jury where, as in this State, judges are forbidden to charge on the weight of evidence. This has been illustrated in cases here. For instance, it was once said by this court, in discussing the weight of evidence, that unexplained possession of recently stolen property was sufficient to sustain a conviction of larceny (Shepherd v. State, 44 Ark. 39), but we have since repeatedly held that it is improper, as an instruction on the weight of evidence, for the trial court to tell the jury so. Blankenship v. State, 55 Ark. 244; Duckworth v. State, 83 Ark. 192; Thomas v. State, 85 Ark. 138; Reeder v. State, 86 Ark. 341. And in an opinion this court declared the law to be that in a suit for malicious prosecution the jury may infer malice from proof of want of probable cause (Lavender v. Hudgens, 32 Ark. 763; Bozeman v. Shaw, 37 Ark. 160), but it has been decided that an instruction to that effect would be erroneous. L. B. Price Mercantile Co. v. Cuilla, 100 Ark. 316; Dare v. Harper, 101 Ark. 37; Kable v. Carey, 135 Ark. 137. Other similar instances may be found in the decisions of this court.
The instructions requested by appellants were indeed open to the objection that they related to the weight of the evidence and were erroneous unless it be held that as a matter of law the wrongful or negligent failure of a bank to pay the check of a depositor who is a merchant entitles such person to recover substantial damages under all circumstances. No court ever held that, and it is contrary to reason, for everyone familiar with the ordinary run of business affairs knows that some merchants are in such affluent circumstances and their credit is so firmly established that not a cent of actual injury is sustained by the failure or refusal of a bank to pay a check. The most that has been decided on the subject is that a trial jury may, without direct proof as to the extent of the injury, infer injury resulting to the credit of a merchant from the failure of a bank to honor his check, and in jurisdictions where instructions on the weight of evidence are not forbidden the courts may charge juries to that effect.
This doctrine, which the majority of the judges of this court now invoke as calling for a reversal of the judgment of the circuit court, had a very small beginning to have grown to such dimensions, in the English case of Rolin v. Steward, 14 C. B. 595. The trial court had in that case told the jury that they ‘ ‘ ought not to limit their verdict to nominal damages, but should give the plaintiff such temperate damages as they should judge to be a reasonable compensation for the injuries sustained.” The jury returned a verdict assessing damages in favor of the plaintiff in the sum of 500 pounds, and the appellate court affirmed the judgment on appeal, saying: “A breach of contract of this sort must of necessity be injurious to a person in trade, and if so, the jury might properly take that into consideration and give damages accordingly.” The practice in the English trial courts is for the judges to sum up the evidence in their charge to juries and they are not forbidden to charge on the weight of evidence; so in the light of that power, the decision of the appellate court was undoubtedly correct. Many American courts have followed that lead, and the majority of them hold that direct proof of injury is not essential to the recovery of substantial damages, for the reason that an inference of substantial injury may legitimately be drawn from the fact that a trader’s check has been dishonored, which is, of itself, calculated under ordinary circumstances to injuriously affect the credit of a merchant. I have no quarrel with that holding, but I think it is wrong and out of harmony with our own decisions to say that a trial court may instruct a jury what inference they may draw from the circumstances. This inference is one of fact and is not a presumption of law, and the courts have no right under the Constitution of this State to charge juries on the weight of such inferences. The correct rule was stated by Judge Hook in delivering the opinion of the United States Circuit Court of Appeals for this circuit in the case of Bank v. Ober, 178 Fed. 678, where he said: “This rule proceeds upon the fact, commonly recognized, that the credit of a person engaged in such a calling is essential to the prosperity of his business, and the dishonoring of his checks is plainly calculated to impair it, and to inflict a most serious injury. In common opinion substantial damages is the natural and probable consequence of the act, and, therefore, a substantial recovery may be had without pleading or proof of special injury.” The court in that ease went on to decide that no such inference could be drawn as to a person not in business, which shows that the rule creates only an inference of fact under certain circumstances, and that it is not a presumption or rule of law which a trial court can declare to a jury. The trial court can only instruct the jury, as was done in the present case, that in order to ascertain the amount of the damages consideration should be given to the condition of the plaintiffs and the probable effect the dishonoring of the checks had on their credit.
Nor was there any error in the instruction telling the jury that the burden of proof was on appellants to “show by competent evidence the amount of damages sustained, if any, in excess of nominal damages.” This instruction was, of course, to be considered in connection with the others which followed telling the jury what circumstances they might consider in ascertaining the extent of the injury. Our statute puts the burden of proof on the plaintiff as the party having the affirmative of the issue, and this instruction was in line with that statute.
It would have been proper for the court, if asked, to instruct the jury that it was not essential for the damages to be proved by direct evidence, and might be proved by circumstances, but no such instruction was asked for. ' That was, however, the effect of the last oral instruction given by the court.
Mr. Justice SMITH concurs in these views.