Citizen's Savings Bank v. Boswell

127 Ky. 21 | Ky. Ct. App. | 1907

Opinion op the Court by

,¥m. Rogers Olay — Commissioner

Affirming.

Appellees, O. W. Boswell and Z. T. Long, sued the O’Dell Commission Company and others in the Graves circuit court, on June 10, 1903, for money lost in stock gambling, and on June 11, 1903, an attachment was served on appellant, commanding it to hold money in its hands belonging to the 0 ’Dell Commission Company. Appellant then had on deposit to the credit of the O’Dell Company the sum of $6,000, which amount it did not hold, but paid out on the same day on a check of. the O ’Dell Company drawn, through a Cincinnati bank. Thereafter appellees amended their petition and alleged that the O’Dell Company was the true name of the garnishee. Prior to - the time of this amendment appellant had 'answered that it owed defendant nothing. Subsequently this action was instituted • against appellant, charging it with having failed to make a true disclosure of the money it owed to the principal defend-j ant. At the first trial judgment was rendered in favor of the bank. On appeal that judgment was reversed by this court in an opinion which will be found in 123 Ky. 485, 96 S. W. 797, 29 Ky. Law Rep. 988. The . case was remanded for the sole purpose of submitting (to a jury the question whether or not appellant was misled by the use in the process of attachment of the name “the O’Dell Commission Company, instead of the O’Dell Company.” This question wás submitted to a jury, which returned a verdict in favor of appellees. Prom an order refusing a new trial, the Citizens’ Savings Bank prosecutes this appeal.

The following errors are assigned: (1) That the stenographer who reported the testimony at the former trial was permitted to read to the jury the evidence given by Mr. Paxton, president, and Mr. Rudy, .cashier, of the Citizens’ Savings Bank. (2) That evidence of a deposit of $8,800 by the O’Dell Company after the service of the attachment was admitted. (3) That the instructions were erroneous.

As neither Mr. Paxton nor Mr. Rudy was dead at the time of tire last trial, and as their evidence on the former trial did not consist of admissions made in the usual course of business, and in connection with and at the time of transactions then had with the bank through them as agents or officers, the admission of their former evidence was improper; but, as both Mr. Paxton and Mr. Rudy subsequently took the witness stand and testified substantially as they had done at the former trial, we do- not think the action of the court in permitting the stenographer to detail their former evidence was in any way prejudicial to appellant.

Evidence of the deposit of $8,800 was not material one way or the other. The jury could not have been misled into believing that the attachment applied to that sum. The judgment was only for $3,261.83 and interest. There was already on deposit to the credit of the O’Dell Company the sum of $6,000. almost twice as much as the sum sued for, which fact was made known to the jury by the instructions of the court.

The instructions given by the cpurt are as follows: “(A) The court instructs the jury that the judgments alleged in favor of plaintiffs were duly rendered against -the O’Dell Company, and the attachments were duly sustained against its property, including the $6,000 on deposit in defendant bank in the name of the O’Dell Company; and the jury will find in their verdict for the plaintiffs, unless they believe from the evidence that the mistake in the use of the word ‘Commission’ in the name of the O ’Dell Company, as set forth in the process of attachment served on the defendant, was under all the facts and circumstances in this case reasonably calculated to mislead, and did mislead, the president and cashier' of the defendant, so that by reason thereof they did not know, or with reasonable diligence under such, facts and circumstances could not ascertain, that the O’Dell Company’s deposits were meant in such process to be attached, and by reason thereof in good faith failed to hold such deposits in its bank and possession for the benefit. of plaintiffs under their attachments against such company, in which latter event, if they so believe, they will find for the defendant. (B) The Court instructs the jury that if they believe from the evidence that the defendant the Citizens’ Savings Bank, through its president, W. E. Paxton, or cashier, R. Rudy, remitted the $6,000 to the Merchants’ National Bank, of Cincinnati, Ohio, relying upon the telegram exhibited in evidence, instead of being misled into remitting it by reason of the mistake referred to in the other instruction herein, then they cannot find for defendant on account of such mistake. ’ ’

Counsel for appellant contends that instruction A is erroneous, because it virtually required appellant to look at the record of Graves circuit court, when this court held in its former opinion that this was not necessary, and for the further reason that reasonable diligence was not defined 'by the court. We do not think this instruction is susceptible of the construction placed upon it by counsel for appellant. The record of the Graves circuit court is not referred to in the instruction or in the evidence. The evidence did show, however, that the business with the bank was first carried on in the name of the O’Dell Commission Company. The same person who was manager of that company then notified the bank that the O’Dell Commission Company had quit business, and that the business formerly conducted by that company would in future be carried on by the O’Dell Company. The bank knew that the same person was manag'er of both companies. Its officers were acquainted with the local representatives, who were the same for each concern. These were the facts andi circumstances vfiiich the court told the jury to consider in determining whether or not appellant was misled by the mistake in name, and under this state of the record we are unable to see how the jury could have reached a different conclusion. Though the instruction- is subject to criticism, we do not think it was calculated to prejudice, or did prejudice, the substantial rights of the appellant.

Instruction B is assailed on the ground that it singles out and gives undue prominence to a portion of the evidence. The evidence singled out, however, had no place in the case, and should not have been considered by the jury in determining the good faith of appellant. The effect of the instruction given was the same as if the court had peremptorily instructed the jury to disregard evidence that was not admissible, and appellant has no just cause of complaint that such testimony was eliminated from the consideration of the jury.

Perceiving no substantial error in the record, judgment is affirmed.