Banco Popular de Puerto Rico v. Deliz

• Citation: 407 F.2d 1388
• Decision Date: 13 March 1969
• Docket Number: 7031.,No. 7030,7030
• Parties: BANCO POPULAR de PUERTO RICO, Defendant, Appellant, v. Juan Elias DELIZ, a/k/a John Donald Deliz, Plaintiff, Appellee. Jose M. MEDINA et al., Defendants, Appellants, v. Juan Elias DELIZ, a/k/a John Donald Deliz, Plaintiff, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

407 F.2d 1388 (1969)

BANCO POPULAR de PUERTO RICO, Defendant, Appellant, v. Juan Elias DELIZ, a/k/a John Donald Deliz, Plaintiff, Appellee.

Jose M. MEDINA et al., Defendants, Appellants, v. Juan Elias DELIZ, a/k/a John Donald Deliz, Plaintiff, Appellee.

Nos. 7030, 7031.

United States Court of Appeals First Circuit.

March 13, 1969.

Vicente Zayas Puig, with whom Alberto Pico, Francisco Ponsa Feliu and Baragano, Trias, Saldana & Francis, San Juan, P. R., were on brief, for appellant in No. 7030.

Alberto Pico, with whom Vicente Zayas Puig, Francisco Ponsa Feliu and Baragano, Trias, Saldana & Francis, San Juan, P. R., were on brief, for appellants in No. 7031.

Stanley L. Feldstein, with whom Nachman, Feldstein, Laffitte & Smith, San Juan, P. R., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

These are joint appeals by defendants in an action brought in the district court for the District of Puerto Rico by Juan Elias Deliz, the son and sole heir of Juan Elias Deliz Gonzales, hereinafter the decedent, against decedent's sister and her husband, Jose M. Medina, citizens of Puerto Rico, and Banco Popular de Puerto Rico. Plaintiff is a citizen of Texas, and the jurisdictional requirements were met. Plaintiff claims that his aunt, with the cooperation of the bank, converted decedent's two savings accounts, in the total amount of $17,359, while he was mortally ill in the hospital. The jury found for the plaintiff in the amount of $3,542. The court set the verdict aside and ordered judgment for the plaintiff for $11,829, or, in the alternative, ordered a new trial on damages. Defendants appeal.

The evidence might be interesting in full detail were we writing a novel, but as a court matter much may be omitted. Using withdrawal orders decedent had signed, the defendant sister transferred his funds in New York into an account standing in her name in the Banco Popular.¹ She allegedly then expended $5,530 to decedent's purposes, including $2,250 given to the plaintiff, and later allegedly gave $12,000 in $100 bills to decedent in the hospital, shortly before he and a lady who had long been his mistress, one Hortensia de Blanck, returned to New York. The sister, accordingly, claimed she had accounted in full.

The testimony as to the $5,530 was not disputed. With two alternatives open to it, to find for the plaintiff for $11,829, being $17,359 less $5,530, or, on the testimony that the sister had returned the entire balance, to find for the defendants, the jury made an intermediate finding which could not be justified on the evidence. Concluding this was an impermissible compromise, the court set the verdict aside. Its further orders were based upon its determination that the $12,000 payment testimony was unbelievably "fantastic" as a whole, or, alternatively, did not amount to a proper delivery. In addition, the court awarded counsel fees for obstinacy.

We need not consider to what extent, if any, a court in a case tried to a jury may order judgment in disregard of the specific factual testimony of three alleged eye-witnesses by finding it to be "fantastic." We are not persuaded in this case that it was fantastic, nor that, if true, it could not constitute delivery. As to the latter, no testimony reflected upon decedent's mental abilities. If he wanted to take back $12,000 in cash, that was his affair. With respect to the supposed fantasy of giving $12,000 in cash to a dying man (who was well enough to travel from Puerto Rico to New York, and who lived three more weeks), decedent knew he was dying and that he was going back to New York with a lady who had long been his mistress. He might well want the money for his immediate bills, with the balance for her. The fact that Hortensia testified that "of course" she knew nothing of the money did not mean that the sister was the storyteller. With a litigious son around, Hortensia could be thought to have a strong motive for concealment. Defendants presented enough evidence to entitle them to a jury's resolution of their claims. Roche v. New Hampshire Nat. Bank, 1 Cir., 1951, 192 F.2d 203. See Rainey v. Gay's Express, Inc., 1 Cir., 1960, 275 F.2d 450. Ordering judgment for the plaintiff for $11,832 was error.

The ordering of a new trial, on the other hand, in the light of the inexplicable amount of the verdict, was not an abuse of the court's discretion.² National Fire Ins. Co. v. Great Lakes Warehouse Corp., 7 Cir., 1958, 261 F.2d 35; Schuerholz v. Roach, 4 Cir., 1932, 58 F. 2d 32, cert. denied 287 U.S. 623, 53 S.Ct. 78, 77 L.Ed. 541. Whether the new trial be on damages only, or on liability, is one and the same, so far as the defendant sister is concerned, because she admitted the original obligation and claimed payment. However, with respect to the bank, if the deposit was in the sister's name with the consent of the decedent, the bank would not be liable even though she failed to account. The court's exclusion of decedent's instructions was error. See, e. g., Ward v. United States, 5 Cir., 1962, 296 F.2d 898, 903; Young v. State Farm Mut. Auto. Ins. Co., 4 Cir., 1957, 244 F.2d 333, 337; 6 J. Wigmore, Evidence § 1770, at 185 (3d ed. 1940). It is true that the bank made no offer of proof. We overlook this because the proffered witness was not the bank's witness. The bank is entitled to a new trial on liability.

While the matter is now mooted, we are sufficiently disturbed about counsel fees for obstinacy (32 L.P.R.A. App. II R. 44.4(d)) to comment thereon. There is a tendency on the part of successful counsel to feel that they...