First Nat. Bank of St. Petersburg v. Switzer

• Decision Date: 04 April 1955
• Docket Number: 22188,Nos. 22187,s. 22187
• Parties: FIRST NATIONAL BANK OF ST. PETERSBURG, Florida, Executor of the Estate of David E. Holt, Appellant, v. I. N. SWITZER, Appellant, and Macon-Atlanta State Bank, a corporation, Respondent.
• Court: Missouri Court of Appeals

Page 689

277 S.W.2d 689

FIRST NATIONAL BANK OF ST. PETERSBURG, Florida, Executor of

the Estate of David E. Holt, Appellant, v. I. N. SWITZER, Appellant, and Macon-Atlanta State Bank, a

corporation, Respondent.

Nos. 22187, 22188.

Kansas City Court of Appeals, Missouri.

April 4, 1955.

Lamb & Semple, Arthur O'Keefe, Moberly, for First Nat. Bank of St. Petersburg, Florida.

Hess & Collins, Macon, for respondent.

MAUGHMER, Special Judge.

The First National Bank of St. Petersburg, Florida, as Executor of the Estate of David E. Holt, deceased, was plaintiff below and appellant here. The jury verdict was for the defendant, Macon-Atlanta State Bank, but against the defendant I. N. Switzer, in the amount of $5,317.53. Judgment was entered in accordance with the verdict. The defendant Switzer is listed as an appellant. He filed notice of, but never perfected his appeal. The sole error alleged by the Florida Bank, as appellant, is the giving of Instruction No. 4, which withdrew three depositions read in evidence, from consideration of the jury insofar as respondent Macon Bank was concerned.

David E. Holt died testate July 11, 1950, in Randolph County, Missouri. Letters testamentary were issued to the Florida Bank as his executor. For many years prior to May, 1950, Mr. Holt resided in St. Petersburg, Florida. In May, 1950, in company with his nephew, the defendant I. N. Switzer, Mr. Holt traveled to Missouri, where he lived in the home of his nephew during the last weeks of his life.

On July 5, 1950, the St. Petersburg Federal Savings and Loan Association received a withdrawal slip signed 'David E. Holt' requesting withdrawal of $5,320.03. David E. Holt had that amount on deposit. The loan company issued its check in the sum of $5,320.03, drawn on the Florida Bank, appellant herein, payable to David E. Holt, and mailed the same to Mr. Holt, in care of defendant Switzer, as requested. Thereafter, on July 8, 1950, this check was presented to respondent, Macon Bank, by Switzer, for deposit to his account. The check purported to bear the endorsements of David E. Holt and I. N. Switzer. The Macon Bank mailed the check direct to the Florida Bank, which, on July 11, 1950, returned its draft for $5,317.23 (retaining $2.80 as a collection charge). This sum was duly credited to Switzer's account.

On June 8, 1951, the Florida Bank filed its first petition. Therein Switzer was the only named defendant. It was charged that Switzer in May, 1950, became the fiduciary agent of David E. Holt, that he 'came into possession of in excess of five thousand dollars of his monies'; that he refused to account for it, and prayed for an accounting and for 'such other relief as may seem just and proper'. On November 10, 1952, the Florida Bank filed its third amended petition. In this pleading the Macon Bank was joined for the first time as a defendant, and for the first time a cause of action bottomed upon an alleged forged endorsement of the name of David E. Holt was declared.

In the meantime and on November 19, 1951, the Florida Bank, as plaintiff, had taken the depositions of three persons. The respondent, Macon Bank, received no notice of the taking of these depositions. It was not present at their taking, in person or by counsel. The Macon Bank was not then, nor did it become until almost one year later a party to the suit. The three persons whose depositions were taken included Ilonka Somp, Secretary, Building and Loan Company; Edwin H. Branson, Assistant Cashier, and Thomas T. Dunn, Vice President and Trust Officer of the First National Bank of St. Petersburg, Florida. By their testimony, signature cards of David E. Holt, resting among the official records of the Florida Bank and the Loan Company, were identified and received in evidence. Likewise, other withdrawal slips, other checks, and letters purporting to bear the true signature of David E. Holt, were identified and received. The witness Dunn expressed the opinion that the signature, David E. Holt, appearing on the check and withdrawal slip involved here, were not his signatures. All three of the depositions were read in evidence at the trial, over the objections of the Macon Bank.

At the close of the testimony the trial court gave Instruction No. 4, which, as pertinent here, reads as follows: 'The Court instructs the jury that the depositions of Ilonka Somp, Edwin H. Branson, and Thomas T. Dunn, were read in evidence by the plaintiff. You are instructed that at the time the depositions of these witnesses were taken the defendant Macon-Atlanta State Bank was not a party to this cause, and therefore you may not consider such evidence in determining the liability of said bank to the Plaintiff.'

Forty-eight years ago, Judge Lamm in Hendricks v. Calloway, 211 Mo. 536, 558-559, 111 S.W. 60, 66, summarily ruled the quested with this statement: 'The depositions of defendants William J. Calloway, William F. Hendricks and W. F. McDaniel were taken before Mary J. and Josephus Calloway and ...