(concurring in part and dissenting in part).
[¶ 47.] The citizens of South Dakota, represented by this Marshall County jury, found that the bank’s wrongful dishonor was the cause of Maryott’s mental anguish. The majority opinion jumps in the jury box and reverses the jury’s award of $150,000 for Maryott’s emotional damage which was clearly precipitated by the bank’s wrongful conduct. In so holding, the majority opinion sidesteps the legislative pronouncement that when a bank chooses to wrongfully dishonor a properly payable item it is liable for any “actual damages.” As the jury’s determination is supported by law and fact, it should stand and not be overturned on a whim.
[¶ 48.] SDCL 57A-4-402 provides in part:
A payor bank is liable to its customers for damages proximately caused by the wrongful dishonor of an item. Liability is limited to actual damages proved and may include damages for an arrest or *109prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.
(Emphasis added). This determination is supposed to be made by a jury on proper instructions, not by the Supreme Court.
[¶ 49.] The instructions to this jury properly stated that the Bank was liable for the foreseeable consequences proximately caused by its conduct. The jury was instructed that emotional distress “means mental suffering, mental distress or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, horror, grief, shame, anxiety, humiliation, embarrassment, mortification, anger, worry and stress, as well as physical pain.” Additionally, “the measure of damages is the amount which will compensate the party aggrieved for all detriment proximately caused thereby.” The jury properly found that Maryott suffered emotional damages as a result of the Bank’s wrongful conduct.
[¶ 50.] First National Bank of Eden and the majority opinion urge the view that emotional damages are never available unless the torts of negligent infliction of emotional distress or intentional infliction of emotional distress are independently asserted. Though this view is not without support in other forums, I concur with the commentators and courts that maintain that recovery for “actual damages proved” encompasses the mental suffering caused by a wrongful dishonor. The majority opinion’s requirement for an independent tort theory of emotional distress to safeguard against baseless claims is an outdated approach supported only by jury distrust. I submit the juries of this state are capable of discerning when actual damages include mental anguish, as they did here.
[¶ 51.] In Twin City Bank v. Isaacs, 283 Ark. 127, 672 S.W.2d 651 (1984), the Supreme Court of Arkansas recognized that “the type of mental anguish suffered under § 4-402 does not need to rise to the higher standard of injury for intentional infliction of emotional distress.” Id. at 654. It further compared these intangible injuries to those types of damages recognized in defamation actions. Id. In addressing this issue, we are faced with the economic reality that “embarrassment and humiliation” suffered from the bank’s wrongful acts are very real, though sometimes intangible harms. See id. The damage to Maryott’s reputation and the ensuing effect on his credit, a lifeline in his type of business, created very real and incredible damage. The jury recognized it based on proper instructions and so should we.
[¶ 52.] Leading commentators on the UCC have addressed the issue. “Might one argue that ‘actual damages’ excludes recovery for mental distress? We think not.” White & Summers, Handbook of the Law Under the Uniform Commercial Code § 17-4 p. 675 (2d Ed 1980). Explaining further, White & Summers note: “It is inconsistent to allow recovery for embarrassment and mental distress deriving from arrest and prosecution and to deny similar recovery in other cases. Moreover, cases under the predecessor to 4-402, the American Banking Association Statute, held that ‘actual damages’ includes damages for mental distress.” Id.
[¶ 53.] This rationale; coupled with the evidence adduced by Maryott and the jury’s findings on proper instructions, demonstrate that the award was proper. Inability on the part of some members of this appellate court to appreciate or recognize these damages is no reason to vacate them. Therefore, I respectfully dissent.