Opinion
6 Div. 684.
January 24, 1918.
Appeal from City Court of Birmingham; C. W. Ferguson, Judge.
S.D. Weakley and Frank S. White Sons, all of Birmingham, for appellant. Steiner, Crum Weil, of Montgomery, and Tillman, Bradley Morrow, of Birmingham, for appellee.
It is a fundamental principle of English and American jurisprudence that a jury is never the judge of the law in any case unless so constituted by constitutional or statutory provision. Batre v. State, 18 Ala. 119, 123. The solitary instance of such a provision in this state is found in section 12 of the Constitution of 1901 (section 13 of article 1, Const. 1875), which declares that:
"In all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court."
The trial court erroneously applied this rule for criminal libel to this civil action, by instructing the jury that they were the judges of both the law and the facts.
Counsel for appellee concede the error, but insist that, inasmuch as the jury found a verdict for plaintiff, their findings of law must have been favorable to plaintiff, and hence the error cannot be pronounced prejudicial, to the reversal of the judgment. If the only principles of law to be applied by the jury had been those relating to the establishment of plaintiff's cause of action, there would unquestionably be a sound basis for the theory of harmless error. But the libel sued for is of the class designated in law as actionable per se (Comer v. L. N. R. R. Co., 151 Ala. 622, 44 So. 676), and plaintiff, relying upon the legal presumptions of actual damage from mental suffering and loss or impairment of business or reputation, offered no evidence on those issues, but requested numerous instructions to the jury thereon, which were in fact given by the trial judge. These instructions correctly presented the law to the jury, and their refusal would have been reversible error. The instruction complained of nevertheless advised the jury that they should themselves determine what was the law of the case, and thereby withdrew the instructions as instructions, and converted them into mere friendly advice, to be followed or not at the discretion of the jury. We see no escape from the conclusion that the erroneous instruction was essentially prejudicial, and must work a reversal of the judgment. Speaking of the damages recoverable in actions like this, this court has said:
"As to the measure of such damages, there is no legal standard. The amount thereof, under proper instructions from the court, is usually referred to the sound discretion of the jury. If the publication is actionable per se, and is proven, the legal presumption of damage goes to the jury, and they, in view of the particular circumstances of the case, are required, in the exercise of their sound judgment, to determine what sum will afford reparation. 3 Sutherland on Damages, 643-647." Advertiser Co. v. Jones, 169 Ala. 196, 205, 206, 53 So. 759.
Instructions which merely inform the jury that the amount of damages to be awarded in cases like this is subject to their discretion are at least misleading, and ought for that reason to be refused. They ought always to be informed that their discretion should be guided and tempered by the circumstances and justice of the case, as shown by the evidence before them. So. Ry. Co. v. Hayes, 198 Ala. 601, 73 So. 945, 947; Coleman v. Pepper, 159 Ala. 310, 49 So. 310.
So, also, while the discretion of the jury may in proper cases deny substantial damages, notwithstanding the prima facie presumptions of law in the premises, and award nominal damages only (Starks v. Comer, 190 Ala. 245, 254, 67 So. 440), yet instructions should not be so framed as to invade the province of the jury by seeming to suggest the propriety of such an award in the case on trial. R. D. R. R. Co. v. Freeman, 97 Ala. 289, 298, 11 So. 800.
We of course do not hold that the giving of charges in these objectionable forms is necessarily reversible error, and what we have said will suffice for present purposes, without specifically ruling upon the several charges of this sort presented by the record.
For the error noted, the judgment must be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.