Opinion
No. 33470.
January 2, 1939.
APPEAL AND ERROR.
Where judgment for plaintiff in insufficient amount was reversed and new trial ordered because of oral instruction indicating that a verdict for a nominal amount would be acceptable and erroneous instruction on comparative negligence, and the final decision rendered on suggestion of error recognized plaintiff's right to peremptory instruction for compensatory damages but left amount of damages to jury on second trial, and second trial on proper instructions resulted in judgment for plaintiff for $12.50, which trial court declined to set aside, reviewing court would not again reverse the judgment on the quantum of damages (Code 1930, sections 511, 586).
APPEAL from circuit court of Grenada county; HON. JOHN F. ALLEN, Judge.
Stone Stone, of Coffeeville, for appellant.
The jury simply ignored the law and on account of their prejudice in favor of the powerful appellee, most important bank in North Mississippi, they dared to challenge the authority of the circuit judge to force them to bring in an adequate sum of damages. We submit that we should be allowed a new trial for the fixation of damages only, so that we may seek a change of venue to the end that this man may not be further defeated of justice by an obstinate jury, such as happened in this trial.
We content ourselves with citing a few of the many cases where new trials have been given solely on account of the fact that the jury obstinately refused to give adequate damages. The fact that in a number of them the damages were for physical injury does not change the principle in the slightest degree.
Scott v. Y. M.V.R.R. Co., 103 Miss. 522, 60 So. 215; Whitehead v. Newton Oil Mfg. Co., 105 Miss. 711, 63 So. 219; White v. McRee, 111 Miss. 502, 71 So. 804; Walker Bros. v. Nix, 115 Miss. 199, 76 So. 143, 563; McLaughlin v. R.W. Fagan-Peel Co., 125 Miss. 116, 87 So. 471; Coccora v. Vicksburg Light Traction Co., 126 Miss. 713, 89 So. 257; Hicks v. Corso-Cefalu, 131 Miss. 659, 95 So. 636; Ozen v. Sperier, 150 Miss. 458, 117 So. 117; Wilson v. Rich, 163 Miss. 403, 141 So. 287; Barr v. Gulf, M. N.R. Co., 168 Miss. 863, 152 So. 294.
A.M. Carothers, of Grenada, for appellee.
We do not deem it necessary to discuss the cases cited by appellant, all of which involve the award of damages for personal injuries, and have no application, we submit, to the case at bar.
On the second trial of this cause, the appellant evidently introduced all the evidence he could possibly muster, he was granted every instruction he requested, he made no objection to the conduct of the trial or to the instructions granted for the appellee, the jury considered and returned their verdict, the lower court approved it by overruling a motion for a new trial, and we respectfully submit there should be some end to this litigation, and this verdict allowed to stand.
On a former appeal of this case it was first held that the judgment should be reversed and remanded because the jury failed to award compensatory damages. A peremptory instruction had been given in favor of the plaintiff in that behalf, after the Court had refused to instruct to find only nominal damages. Weaver v. Grenada Bank, Miss., 178 So. 105, not officially reported. On suggestion of error the opinion above referred to was withdrawn and there was substituted in lieu thereof the one reported in 180 Miss. 876, 179 So. 564, in said cause, wherein the judgment of the court below was reversed and remanded for a new trial on two grounds: (1) That when the jury returned its verdict in favor of the plaintiff and assessed his damages "at nothing" the court orally instructed the jury to "return to your room and find a verdict for something" — the equivalent of suggesting that a verdict for any amount, however nominal, would be acceptable and proper; and, also in violation of Section 586 of the Code of 1930: (2) that the giving of the comparative negligence instruction was error under the circumstances, for the reason that the suit involved the breach of a contractual obligation such as to render Section 511 of the Code of 1930 on comparative negligence inapplicable.
It was further held on suggestion of error that the jury was entitled to consider the fact that the plaintiff admitted to the cashier of the bank at the time the error in his account was adjusted that "no harm had been done" by the mistake committed in misreading the check in question, which resulted in other smaller checks being returned to the payees for "insufficient funds," together with the bank's refused offer to write letters of explanation as to how the error occurred and thereby reduce or minimize whatever damages that may have been caused by the error.
In other words, the final decision as rendered on suggestion of error recognized the fact that the plaintiff, as appellant here, was entitled to the peremptory instruction for compensatory damages, but that it was left to the judgment of the jury to determine the amount under proper instructions on the second trial.
The material facts are disclosed in the opinions on the former appeal. The case was retried under proper instructions, and resulted in a judgment for appellant in the sum of $12.50, which the trial court declined to set aside, and we do not feel justified in again reversing the case on the quantum of damages.
Affirmed.