Cox v. Old Nat. Bank & Union Trust Co., 28940.

• Decision Date: 10 April 1943
• Docket Number: 28940.
• Citation: 17 Wn.2d 494,136 P.2d 163
• Court: Washington Supreme Court
• Parties: COX v. OLD NAT. BANK & UNION TRUST CO. et al.

136 P.2d 163

17 Wn.2d 494

COX v. OLD NAT. BANK & UNION TRUST CO. et al.

No. 28940.

Supreme Court of Washington

April 10, 1943

Department 1.

Action by Minnie F. Cox, as administratrix of the estate of George Washington Cox, deceased, against the Old National Bank &amp Union Trust Company, as trustee for the depositors of and successors in interest and assignee of the Bank of Montreal Spokane Branch, a corporation, and the Investment &amp Securities Company to establish the identity of the owner of a bank account. From a judgment notwithstanding the verdict for plaintiff and dismissing the plaintiff's action, the plaintiff appeals.

Judgment modified, and, as modified, affirmed.

Appeal from Superior Court, Spokane County; Ralph E. Foley, judge.

Olive Scott Johnson and H. Earl Davis, both of Spokane, for appellant.

Witherspoon Witherspoon & Kelley, of Spokane, for respondents.

MALLERY Justice.

This was an action to establish the identity of the owner of a bank account. The jury returned a verdict in favor of the plaintiff as administratrix of her husband's estate. The trial court entered a judgment notwithstanding the verdict, dismissing her action. Plaintiff appeals.

The question to be decided is: Does all of the evidence, considered in its most favorable light, together with all reasonable inferences to be drawn therefrom, constitute a prima facie case to go to the jury?

Respondents' adverse evidence, however weighty and conclusive, must be disregarded.

It is conceded by all that account number 780 was opened in 1905 with the Spokane Branch of the Bank of Montreal under the name of George Cox. This account was inactive after 1914. It was turned over to respondent in November, 1924, in the amount of $3,980.35, when the Bank of Montreal, Spokane Branch, ceased doing business in Spokane. It was carried by respondent, Old National Bank, under the name of G. Cox.

On March 2, 1933, the Old National Bank and Union Trust Company of Spokane suspended business and pursuant to a plan of reorganization a certain portion of the accounts and deposits of the Old National Bank and Union Trust Company, including the savings account in the name of G. Cox, was transferred to the Investment & Securities Company, and the said savings account in the name of G. Cox is now held by the Old National Bank of Spokane and the Investment & Securities Company for the owner thereof.

It was admitted by appellant that the signature of George Cox on the original ledger sheet of the Bank of Montreal, Spokane Branch, and on two checks drawn on the account in question, was not the signature of her deceased husband. This admission was made after a comparison with her deceased husband's signature in the family bible and on a homestead entry.

For the purpose of summarizing the evidence favorable to appellant, we will quote appellant's statement from her brief:

'Prior to the year 1900 Minnie F. Frazier and George W. Cox were married at Joplin, Missouri. George W. Cox while residing at Joplin was a mechanic and was also interested in mines. They came to Washington first about 1900, on a visit and then moved the family to Washington some time about 1904 to 1907 or 1908, the record being not clear on this date. When the family moved out, Mrs. Cox and the children came about two weeks in advance of Mr. Cox, and when she left he gave her $3,000.00 to bring with her, and he probably kept at least a like sum. After he arrived he and Mrs. Cox deposited some of the money in the Bank of Montreal.

'Mrs. Cox was able to give a detailed description of the appearance of the bank and recognized Exhibit 10 in evidence as a picture of the bank in which the deposit was made, and located it at the corner of Stevens street and Riverside avenue in Spokane. She further testified that on numerous occasions she visited the same bank in company with her husband subsequent to the time the deposit was made.

'In 1911 the Coxes took a homestead near Ford, in Stevens county, and lived there until 1922 when the homestead was disposed of, and following the sale of the homestead they traveled in different parts of the United States, with no settled abode, for five or six years, only occasionally returning to Spokane for a month or so at a time. They

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