194 Ky. 556 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
Appellee Mokwa recovered in the Madison circuit court a judgment against the appellant, Berea Bank & Trust Company, for $750.00, in an action in which it was alleged that the bank had wrongfully failed to honor, pay off and satisfy certain checks drawn by Mokwa on said bank in which he had at the time funds sufficient to pay and satisfy the checks. The bank appeals, insisting first,, that the instruction given by the trial court to the jury on the measure of damages, in the event the jury should find for the plaintiff below, was erroneous in that it did not tell the jury that it was the duty of Mokwa, after he learned of the bank’s refusal to honor his checks, to exercise reasonable care and diligence to minimize liis damages; second, the discovery of new evidence after the trial which would have been, as appellant believes, important and controlling in its defense.
In brief of counsel for appellant it is stated that the instructions did not submit the issue raised by-the pleadings in that the defense of the bank as contained in the second paragraph of its answer was that it was an unavoidable mistake, due to extraordinary conditions existing in the bank force resulting from sickness in their families, and that the mistake could have been corrected promptly but that the defendant Mokwa deliberately failed to call the bank’s attention to the error and continued to give checks for the sole purpose of building up a damage suit for himself, and that if he had called the bank’s attention to the error and co-operated with it in tracing deposits the mistake would have been corrected promptly and no injury would have resulted. Appellee Mokwa insists that he gave the bank all the assistance he could and repeatedly urged its officials in charge of its business to correct his account by giving him credit for the deposit which he had made, at the same time telling said officials the time and amount of each deposit. The cashier of the bank contradicted this in part and admitted'it in part. By the second paragraph of the answer the bank admits its mistake and failure to give appellee
As the court was not asked to give an instruction presenting the phase of the case now relied upon in brief of counsel, appellant waived its right to have the court present to the jury such an instruction. While we regard the instruction given by the court on the measure of damages as substantially correct and conforming quite completely to an instruction approved by this court in the case of American National Bank v. Morey, 113 Ky. 857, which was an action of the same general nature as the one before us, we think it could have been made more direct and certain if it had read: If the jury find for the plaintiff it will allow him such a sum in damages, if any, as it may believe from the evidence will fairly and reasonably compensate him for any loss of time or loss of or impairment of credit sustained by him as a direct and proximate result of the refusal of said bank to honor his check or checks, not to exceed the sum of $2,500.00, the amount claimed in the petition. This point, however, was not made or relied upon by appellant and was not such error, if error at all, as would have- warranted the trial court in awarding a new trial.
('2) It is next insisted 'by appellant that after the trial the bank learned for the first time that a witness named Dr. J. M. Logsden would have testified that Mokwa had told him about the bank making the mistake and his checks being- turned down, that he intended to wait twenty days, after which time he would probably -be arrested, charged with felony for giving cold -checks, and then he would have a ten thousand dollar damage suit against the bank. In support -of this ground for new trial appellant filed the affidavit of Dr. Logsden, stating in substance that after Mokwa had informed him that the bank had made a mistake in not giving him credit for deposits and had wrongfully refused to pay his checks, he (Mokwa) told the affiant he did not propose to do or say anything about it until after the expiration of twenty days, at which time he would be liable to prosecution for a fe-lony and that this would give him ground for a ten thousand dollar damage suit against the bank. Mokwa filed his affidavit in rebuttal, stating that he and Dr. Logsden, who made
It has been held that a depositor may, after the bank has refused to honor his check when he has funds sufficient to meet the same, continue to draw checks upon the bank and each wrongful refusal of the bank to pay his checks is admissible as evidence upon the trial of a suit for damages resulting from such wrongful conduct on the part of the bank. 5 Ruling Case Law, p. 545. It follows from this that had the fact that appellee Mokwa made the statement about the ten thousand dollar damage suit been known to appellant bank at the time of the trial and adduced as evidence, it could have done no more than mitigated the recovery. Our rule will not allow this court to grant a new trial on the ground of newly discovered evidence except where the evidence is of such a character and potentiality as to render a different verdict reasonably certain upon .another trial. The evidence relied upon for a new trial in this case does not measure up to this standard. The trial court properly overruled the motion and grounds for a new trial.
Judgment affirmed.