Lucks v. Northwestern Savings Bank, 148 Mo. App. 376

Lucks v. Northwestern Savings Bank

148 Mo. App. 376 | Mo. Ct. App. | 1910

GOODE, J.

This plaintiff asked and obtained a judgment for $197.10 against the defendant bank as being the balance due him on his account. Said action *380was filed August 14, 1906. Defendant admitted owing only seventy-five cents, thereby putting in issue $196.35 of the amount. Plaintiff testified he had deposited said sum of $196.35 in the bank on May 14th, and an entry on his passbook made by the teller of the bank, as the teller admitted on the witness stand, showed a deposit to plaintiff’s credit on said day, either of $196.35 or $190.35. There was a controversy as to whether the third figure of the entry was “6” or “0.” However, the bank denied plaintiff made a deposit of either $196.35 or $190.35 on May 14, 1906, and introduced testimony to prove he did not deposit either sum. The bank’s contention was that a man named Vossmeyer deposited $190.35 on May 14th, and this deposit by Vossmeyer was, by mistake, entered as a credit on plaintiff’s passbook. After May 14th plaintiff did not hand in his passbook to the bank to be balanced until the middle of July, when, on comparing said book with his account as shown on the books of the bank, no entry corresponding to the deposit of May 14th was shown on the bank’s books and hence the teller drew a line through said entry on the passbook before returning the latter to plaintiff, who, on seeing the erasure, protested against it. There was further testimony for the bank that no deposit of $196.35 was made by any one on the day in question, and that only one person (Vossmeyer) made a deposit of the other amount. It appears from the record the attorney for the bank, during the trial, admitted plaintiff had made a deposit of some amount not stated or known, on said day. This admission was made in explanation of hoAV the teller came to make an entry, though an erroneous one, in plaintiff’s passbook. Without going further into the details or stating the various deposits made by plaintiff and checks drawn by him from March 19, 1906 to July 27, 1906, the date of the last transaction shown, we will state the effect of the evidence and the admissions of defendant’s counsel, *381which is this: If plaintiff deposited $196.35 on May 14th, then the bank owed him said amount plus seventy-five cents, or the amount he sued for, $197.10. If he made a deposit of $190.35, then the bank owed him that plus seventy-five cents, or $191.10. If he did not deposit either of those sums, nevertheless the bank must have owed him more than seventy-five cents, the amount admitted in its answer to be shown by its books; for the books showed no deposit on May 14th and it is conceded he made a deposit on that day. The teller testified there was a surplus of forty dollars in cash at the close of the day’s business, which could not be accounted for from the hooks of the bank and was put in an envelope and laid aside. Much evidence was introduced, including the testimony of various entries from plaintiff’s account on the books of the bank, the deposit by Vossmeyer, testimony of the bank’s officials as to the system of bookkeeping and the positive testimony of the teller that plaintiff did not deposit either $196.35 or $190.35 on May 14th, though, as said, the teller admitted plaintiff must have been in the bank and have presented his passbook. The points raised on the appeal relate to the court’s rulings on instructions. The first instruction requested by defendant and refused by the court proceeded on the theory that plaintiff was not entitled to a verdict for more than seventy-five cents unless the jury found he had made a deposit of $196.35 on May 14th. This instruction manifestly was erroneous, because the concession of defendant’s counsel that a deposit had been made by plaintiff on May 19th would carry the bank’s liability to plaintiff beyond seventy-five cents. An instruction was given by the court of its own motion in which the jury were advised, in substance, as follows: That defendant admitted owing plaintiff seventy-five cents, admitted further he had made a deposit on May 14th, admitted its teller made the entries in plaintiff’s passbook introduced in evidence, and in view of those admissions the only matter *382in dispute and issue to decide was the amount of the deposit on May 14, 1906; that if the jury believed plaintiff deposited $196.35, they would find a verdict in his favor for $197.10, with interest from the date the action was filed; .that if they believed he did not make a deposit on that day in said amount, they should determine from all the facts and circumstances in evidence the •true amount deposited by him, add to said amount seventy-five cents and render a verdict for plaintiff for the sum, together with interest from the date the action was filed. With that part of the instruction we find no fault as the record stands; but the court then proceeded to charge as follows:

“The jurors are further instructed that the burden is upon plaintiff to prove his case by a preponderance, that is to say the greater weight of the evidence, and in this connection you are instructed that the entries made by defendant on plaintiff’s passbook are admissions by defendant company that the amounts so entered were deposited by plaintiff with defendant. When the amounts so entered are disputed by defendant, it devolves upon the defendant to furnish to your satisfaction a reasonable explanation of such entries.”

We cannot support the quoted part of the instruction, because it singled out the entries in the passbook and commented on them in a way to give them undue weight and emphasis in the minds of the jury. The entries made a prima facie case in favor of plaintiff and would have done so on proof they were made by the bank’s officers, apart from his positive testimony in corroboration of them. But as the bank cancelled the entry of May 14th, on first detecting it, and offered a mass of testimony tending to prove it was erroneous, the entry cannot be regarded as an admission. However it was perfectly proper for the entry to go in and have attached to it the importance the jury might deem it deserved, considered along with all the other evidence in the case. [McKeen v. Bank, 74 Mo. App. 289; Quat*383trochi v. Bank, 89 Mo. App. 500; Bank v. Morgan, 117 U. S. 106; First Nat'l Bank v. Clark, 134 N. Y. 368; Tallcot v. Bank, 36 Pac. 1066; 1 Morse, Banks (4 Ed.), sections 290, 291.] We think in instructing the entry was an admission the amount entered had been deposited by plaintiff, the court gave over-emphasis and weight to it. The courts of this State in numerous cases have condemned instructions which seized on some item of evidence bearing on an issue and lent to it undue prominence by comments. [Barr v. Kansas City, 105 Mo. 559, 16 S. W. 483; State v. Elkins, 63 Mo. 166; Connelly v. Railroad, 120 Mo. App. 652, 97 S. W. 616; Williams v. Stephens, 38 Mo. App. 158.] Some of those decisions dealt with errors assigned for commenting on documentary evidence and disapproved the practice. We have been reluctant to reverse the case, but have concluded we cannot feel sure the jury were not induced to attach overmuch importance to the entry in the passbook by the form of the court’s instruction.

The judgment is reversed and the cause remanded.

All concur.