Green v. First Nat. Bank of Kansas City

• Decision Date: 15 June 1942
• Parties: GUY GREEN, GUARDIAN, RESPONDENT, v. FIRST NATIONAL BANK OF KANSAS CITY, APPELLANT
• Court: Kansas Court of Appeals

163 S.W.2d 788

236 Mo.App. 1257

GUY GREEN, GUARDIAN, RESPONDENT, v. FIRST NATIONAL BANK OF KANSAS CITY, APPELLANT

Court of Appeals of Missouri, Kansas City

June 15, 1942

Rehearing Denied 236 Mo.App. 1257 at 1263.

Appeal from Jackson Circuit Court.--Hon. Brown Harris, Judge.

AFFIRMED.

Order affirmed.

Ryland Stinson, Mag & Thomson, Paul R. Stinson and Dick H. Woods for appellant.

(1) The verdict for defendant bank is conclusive, and all that the evidence in its behalf tends to prove must be assumed true. Aly v. Terminal Railroad Association of St. Louis, 336 Mo. 340, 78 S.W.2d 851; Chostner v. Schrock (Mo.), 64 S.W.2d 664; Grove v. The City of Kansas, 75 Mo. 672; Manley v. Wells (Mo.), 292 S.W. 67; Roark v. Dawson (Mo. App.), 122 S.W.2d 376; Smith v. Huff, 141 Mo.App. 476, 125 S.W. 1173; Westervelt v. Transit Co., 222 Mo. 325, 121 S.W 114; Wissmann v. Pearline (Mo. App.), 135 S.W.2d 1. (2) Liability of savings bank to depositor. Banking Co v. Loomis, 140 Mo.App. 62; Bellantese v. Bronx Sav. Bank, 273 N.Y.S. 885; Blount v. Spratt, 113 Mo. 48; Bulakowski v. Philadelphia Savings Fund Society, 270 Penn. 538, 113 A. 553; McCarthy v. Bowling Green Storage & Van Co., 169 N.Y.S. 463; Julia Riley, Administratrix v. Albany Savings Bank (N. Y.), 36 Hun 513; Saji v. Philadelphia Saving Fund Soc. (Pa.), 170 A. 334; Smith v. Republic Nat. Bank & Trust Co. (Tex.), 73 S.W.2d 552; 9 C. J. S.; 8 Michie on Banks and Banking. (3) The trial court erred, therefore, in granting plaintiff's motion for a new trial upon the ground specified. (4) The trial court having specified a single and particular ground for sustaining plaintiff's motion for a new trial, all other assignments in the motion were presumptively overruled. Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Cole v. St. Louis-San Francisco Railway Co., 332 Mo. 999, 61 S.W.2d 344; Gardner v. St. Louis Union Trust Co. (Mo.), 85 S.W.2d 86; Haven v. Mo. Ry. Co., 155 Mo. 216, 55 S.W. 1035; Hunt v. Iron & Metal Co., 327 Mo. 887, 39 S.W.2d 369; Sakowski v. Baird, 334 Mo. 951, 69 S.W.2d 649; Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Yuronis v. Wells, 322 Mo. 1039, 17 S.W.2d 518. (5) The trial court had no jurisdiction at a subsequent term to set aside the jury's verdict for errors not assigned in plaintiff's motion for a new trial, and it was error to grant plaintiff's motion for a new trial, for reason other than that set out in plaintiff's motion. Smith v. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Taylor v. Railroad Co., 333 Mo. 650, 63 S.W.2d 69. (6) The verdict was for the right party.

Clay C. Rogers and Price Wickersham for respondent.

(1) Since it was admitted that Mrs. Neel had the money on deposit with the defendant, the burden of proof was upon the bank to prove that it had paid the money out to her or upon her order. Macon Co. v. Goodson, 22 S.W.2d 654; State ex rel. Spaulding v. Peterson, 142 Mo. 526, 39 S.W. 453; People's Bank v. Stewart, 116 Mo.App. 24, 117 S.W. 99; Burrus v. Cont. Life Ins. Co., 225 Mo.App. 1129, 40 S.W.2d 493; Croghan v. Savings Trust Co., 231 Mo.App. 1161, 85 S.W.2d 239; John Deere Plow Co. v. Cooper, 230 Mo.App. 167, 91 S.W.2d 145. (2) Mrs. Neel was utterly incompetent and the bank was put upon notice of her incompetency. (3) A savings bank is bound to see that payment is made only to the person entitled thereto. 7 C. J. 868; Case v. Waterbury Sav. Bank, 77 Conn. 295, 59 A. 37; Highfield v. First Nat. Bank, 45 Ga.App. 431, 165 S.E. 135; American Sash & Door Co. v. Commerce Trust Co., 56 S.W.2d 1034; Ladd v. Augusta Sav. Bank, 96 Me. 510, 52 A. 1012; Lally v. Cash, 164 P. 443; Payne v. June, 92 Ind. 252; Ledford v. Hubbard, 292 S.W. 345; 58 C. J. 730; Paisley v. Snipes, 4 S. C. L. 200; Shiver v. Johnson, 4 S. C. L. 397; Gibson v. First Nat. Bank, 213 Mo.App. 63, 245 S.W. 1072. (4) Under the law of Missouri the bank was unauthorized to make payment to anybody except Mrs. Neel or upon her order. Sec. 8108, R. S. Mo. 1939. (5) The order of the court in sustaining the motion for new trial is not limited to any specific ground. Reissman v. Wells (Mo. App.), 258 S.W. 43, 45; Hayward v. Ham, 59 S.W.2d 725, 732; Crocker v. MacCartney, 24 S.W.2d 649; Rule 4, Rules and Regulations; Authorities cited under Points (1) and (3). (6) The rights of the parties were governed solely by Rule 4 of the rules and regulations in the pass book and the issue of whether the bank exercised ordinary care is not in the case. Rule 4, Rules and Regulations. (7) The court erred in giving to the jury Instruction C2. There was no proof that Mrs. Neel executed the withdrawal orders and the alleged defense of ordinary care is no defense. Rule 4, Rules and Regulations. (8) The court erred in giving to the jury Instruction D2. There was absolutely no evidence that Mrs. Neel affixed her signature by mark to any of the withdrawal orders and it was error for the court to submit such issue. Arkla Lbr. & Mfg. Co. v. Henry Quellmalz, L. & Mfg. Co., 252 S.W. 961; Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1. (9) The court erred in refusing to give plaintiff's requested Instruction K. The rights of the parties were governed solely by Rule 4 of the rules and regulations and hence proof of the exercise of ordinary care constituted no defense. Extra judicial unsworn statements of a third person constitutes no proof whatever of the fact. Chouteau v. Searcy, 8 Mo. 733; State ex rel. Met. Life Ins. Co. v. Shain, 343 Mo. 435, 121 S.W.2d 789; Oesterle v. Kroger Gros. & Baking Co., 346 Mo. 321, 141 S.W.2d 780; Thomasson's Estate, 148 S.W.2d 757; Munton v. Driemeier Stg. & Moving Co., 223 Mo.App. 1124, 22 S.W.2d 61.

OPINION

CAVE, J.--

This cause was tried to a jury in the Circuit Court of Jackson County, resulting in a verdict for the defendant. Plaintiff filed a motion for new trial which was sustained by the court, and from such order the defendant perfected its appeal. We are immediately confronted with the question of whether the trial court sustained the motion for new trial generally and without assigning of record any specific ground or grounds for sustaining it, as required by Section 1169, Revised Statutes 1939; or whether the court did properly assign of record the specific ground or grounds for sustaining said motion.

The record discloses that the verdict of the jury was returned on October 15, 1941, and during the September Term of the court; the motion for new trial was filed within four days thereafter and was continued until the November Term of that court. On the 6th day of December, 1941, and at the November Term, the bill of exceptions discloses the following proceedings:

"And afterwards, on the 6th day of December, 1941, the same being the 22nd day of the regular November Term, 1941, of said Court, the said plaintiff's motion for a new trial was taken up and submitted to the Court, and having been by the Court seen and heard, and duly considered, was by the Court sustained; to which action and ruling of the Court in sustaining said motion, and in granting and allowing to the plaintiff a new trial herein, the defendant then and there duly excepted at the time and still excepts.

"And afterwards, and on said 6th day of December, 1941, the same being the 22nd day of the regular November Term, 1941, of said Court, the following proceedings were had and entered of record, to-wit:

"The Court: The Court is sustaining the motion for new trial in this case for the reason the Court in its opinion believes it should have given the instruction that the bank was guilty of negligence as a matter of law in permitting the last withdrawal, and that the jury should have been instructed that the bank was guilty of negligence as a matter of law in that event, and there should have been put on the bank the burden of showing the disbursement and expenditure for necessities any sum thereafter expended from the funds which the bank permitted to be withdrawn. I think that is plain enough. The last withdrawal being the one for $ 3621.50 on January 18, 1936.

"Mr. Stinson: Put this down. As I understand Your Honor, Your Honor is not sustaining the motion for new trial on the ground that the verdict is against the weight of the evidence.

"The Court: The Court is doing just what the Court has said it was doing. I am not attempting to deprive either party of any of their rights under any of the other instructions."

The order of the court sustaining the motion for new trial as shown by the record proper is as follows:

"Now on this day plaintiff's motion for a new trial is by the Court sustained and excepted to."

Section 1169, supra, among other things, provides:

". . . and every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted."

Has the court, in this case, complied with that requirement? We think not. The order sustaining the motion did not specify any ground therefor. "The sole repository for the court's reasons or grounds for sustaining a motion for a new trial is the order of the court entered of record upon sustaining the motion. It is made so by express statutory enactment." [Reissman v. Wells, 258 S.W. 43, 45; Hayward v. Ham, 59 S.W.2d 725, 732.] We do not consider the statement or opinion delivered by the learned judge ore tenus, when granting the new trial and preserved in the bill of exceptions as being a part of his order entered of record sustaining such motion, "his ultimate decision must be conclusively presumed to be embodied in his order entered of record sustaining the motion." [Reissman v. Wells, supra; Hayward v. Ham, supra; Lindsay v. Shaner, 291 Mo. 297, 301, 236 S.W. 319.]

The defendant directs our attention to the case of Smith v Public Service Company, 328 Mo. 979, 43 S.W.2d 548, but a reading of...