Wegner v. Second Ward Savings Bank, 76 Wis. 242

Wegner v. Second Ward Savings Bank

76 Wis. 242 | Wis. | 1890

Cole, O. J.

It is a mistake to say that the complaint in. this case contains more than one cause of action. It is plainly an action of replevin to recover the pass-book described, and nothing else. It is assumed that the complaint attempts to state a cause of action upon contract, or for the recovery of money deposited with the bank. This is not our construction of the complaint. The action is to recover the possession of the pass-book. This pass-book contained the contract of the parties, the rules and regulations as to the withdrawal of money by the depositor, and the evidence of the amounts deposited, with interest on the same. It was in the nature of a certificate of deposit, and was valuable to the owner. We suppose replevin would lie to recover the possession of the pass-book on the same ground that the action would lie to recover a note or bond by the legal owner. There is no difference in principle between the cases. The pass-book contained the contract and regulations as to the withdrawing of deposits, and, being the property of the plaintiff, he was entitled to its possession. The correctness of this view seems to us too plain for argument. The case of Davis v. Lenaware C. S. Bank, 53 Mich. 163, has no application to the question we are considering, as an examination of the case will show. As between the defendant bank and the plaintiff, it is clear, upon the evidence, that the latter had the lawful right to the possession and control of the pass-book.

A number of exceptions were taken to the rulings of the trial court in admitting or excluding testimony. We shall not notice these exceptions, further than to observe that we do not think there was any error in the rulings of the court on that branch of the case. Some of the questions *247asked the witnesses and admitted under objection were clearly competent, while others were unimportant and could not have prejudiced the defense.

The real question in the case, and the only one worthy of any contest, is, Did the bank, in good faith and without negligence, pay the amount which the pass-book showed the plaintiff had to his credit in the bank upon the presentation of such pass-book by a person who had stolen, or fraudulently obtained the possession of, such book, and who fraudulently personated the plaintiff and signed his name to the receipt; no notice having been given at the time to the bank that the book was stolen. Now that was a question of fact for the jury to determine from all the facts and circumstances disclosed by the evidence. It is very clear to our minds that it was not a question of law for the court to decide. The jury found, on a question submitted, that the defendant was guilty of negligence in the payment of the money to the wrong party. If there was evidence which warranted that finding, it is conclusive so far as the liability of the defendant is concerned; and we think there was ample testimony to justify such a verdict. We shall not refer to this testimony in detail. Suffice it to say the jury was directed by the court to recall the testimony of the officers of the bank, and of other witnesses produced on its behalf, as to the circumstances under which the money was paid to the party who came with the passbook, and as to what precautions the bank took to identify such party, and all that was said and done in the matter bearing upon the question of negligence as the court had defined the term, and then find-as the fair preponderance of the evidence indicated the facts to be. The court had instructed that the bank would not be responsible unless its officers had failed to observe, for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demanded, *248whereby such other person suffered a loss or injury. In other words, it must appear that there was a failure on the part of those connected with the bank to do what reasonable and prudent persons would ordinarily do under the existing circumstances, or it must appear that they did not do what such a person would have done, exercising reasonable care and precaution. It seems to us that this charge fairly submitted the question as to whether the defendant was negligent in paying the money to the wrong party.

It is admitted that the bank made the payment to a part}'' fraudulently personating the plaintiff in the forenoon of the 2d of July. Among the regulations printed in the passbook, as to the withdrawal of deposits, was one requiring a previous notice thereof, in writing, of at least thirty days, to be given by the depositor, for all sums of $50 and over. No such notice was given or insisted upon in this case. It is said that this rule as to notice for withdrawing deposits was one solely for the benefit of the bank, which it could waive; but we think it was intended, also, to protect the depositor against fraud or forgery. Certainly, if the rule had been observed in this case, or insisted upon, there would have been no loss to anyone. It is true the defendant paid the money to a party presenting the passbook; but there were circumstances calculated to raise suspicion, and which did make the agents of the bank doubt as to his being the man he personated. The marked dissimilarity between the name of the plaintiff as this party wrote it, and the genuine signature in the defendant’s signature book, arrested the attention of such agents; and they required some one to identify him as the plaintiff, which request he attempted to comply with.

But it was for the jury to say, in view of all the facts attending the transaction, whether or not the agents of the bank exercised reasonable care and diligence in the means they employed to identify the person to whom the money *249was paid, and who presented the pass-book, with the real depositor and owner of the pass-book. If they did not exercise that degree of care and diligence, there can be no doubt that the bank is answerable for the consequence of their mistake as to the identity, and for paying the money to the wrong party. The jury having found against the defendant upon that issue, further discussion of that question is uncalled for.

The court likewise submitted the question whether the plaintiff was guilty of any negligence which caused or contributed to the payment of the money to the wrong party. The jury found that he was not, which was the only possible conclusion that could be reached upon the evidence. The only ground on which negligence could be imputed to the plaintiff was his failure to promptly give the bank notice of the loss of the pass-book. But, under the circumstances, no negligence cotild be predicated on that ground. The plaintiff was shot and seriously wounded by Ebersen, either accidentally or intentionally, on Sunday afternoon. Ebersen was the man who stole the pass-book and drew the money. The plaintiff remained in tlie barn where he was shot until the evening of that day, when, by the advice of the physician who had been called, he was removed to the hospital. The next morning he endeavored to communicate with his friends and have some one look after his valuables, including the pass-book. But it was not ascertained that the pass-book had been stolen until after the bank had paid the money on the forenoon of the next day after he was shot. Such being the undisputed facts, there was no ground upon which negligence in failing to give the bank notice of the loss of the pass-book could possibly be predicated.

Some criticisms were made upon the charge of the trial court, but we think it is unexceptionable; and it substantially covers the instructions which were asked on the part of the defendant.

*250In arguing the ease to the jury, one of the plaintiff’s counsel used the following language: “For many years I have watched the report [report of the defendant bank], and their deposits are over $3,000,000,” —to which language counsel for defendant objected, and asked to have the remark taken down. Plaintiff’s counsel, continuing, said: “ They [the bank] make three to four per cent, on all the loans they make,” — to which defendant’s counsel objected, and took exception to both remarks. We deem these remarks harmless. At least, they do not call for any strictures. They stated, in effect, to the jury, the reports made by the bank as to the amount of their deposits, which were facts probably within the knowledge of the jury themselves. What was said as to the rate of interest the bank made on its loans could not have harmed any one. Besides, there was no ruling of the court as to the propriety of these remarks, further than an admonition to the counsel to confine his remarks to the testimony in the case. That was all the action the court took in the matter.

To the special verdict of the jury the court added a general verdict, finding the value of the pass-book, and assessing damages for its unlawful detention. This general verdict was added pursuant to the consent and stipulation of the attorneys for the parties. The court found the value of the pass-book to be $710.50, the amount which, upon its face, appeared to be due the plaintiff. Prima facie, this was the value of the pass-book to him. The court gave interest on this sum at the rate of seven per cent., according to the ordinary rule, from the time the bank refused to deliver the pass-book on demand up to verdict. It is said, because the deposit only drew interest at the rate of three per cent., the interest on the recovery should not exceed that rate. But, as we have said, this is an action of replevin to recover the pass-book, and the ordinary rules as to damages apply to it. We can perceive no ground for making a distinction between this and other cases in that regard.

See note to this case in 44 N. W. Rep. 1098. — Rep.

We have examined all the authorities cited on the brief of the appellant’s counsel, but find nothing in them in conflict with the views which we have expressed. The doctrine of these eases is that the bank is liable for the payment of the money to the wrong party, w7here the officers of the bank failed to exercise reasonable care and diligence to ascertain whether the person presenting the pass-book was the real owner and depositor to whom the money is due. At least, there is nothing in these cases contrary to that proposition of law. In this case the jury has found, upon sufficient evidence, that the defendant was guilty of negligence in that respect. We think the judgment of the superior court was correct, and must be affirmed.

By'the Court.— Judgment affirmed.