Hartman v. Farmers' & Mechanics' Bank

• Decision Date: 02 December 1918
• Docket Number: No. 13036.,13036.
• Parties: HARTMAN v. FARMERS' & MECHANICS' BANK OF JEFFERSON CITY.
• Court: Missouri Court of Appeals

208 S.W. 626

HARTMAN v. FARMERS' & MECHANICS' BANK OF JEFFERSON CITY.

No. 13036.

Kansas City Court of Appeals, Missouri.

December 2, 1918.

Appeal from Circuit Court, Cole County; Jack G. Slate, Judge.

"Not to be officially published."

Action by Elizabeth Hartman against the Farmers' and Mechanics' Bank of Jefferson City, Missouri, a corporation. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Pope & Lohman, of Jefferson City, for appellant.

John A. Gloriod, of Poplar Bluff, for respondent.

TRIMBLE, J.

Plaintiff sued the defendant bank to recover a deposit of $1,000, alleged to have been made therein, but which the bank refused to recognize or repay. The date of demand therefor was placed at July 3, 1917. The court, at plaintiff's request, instructed the jury that if they found for her their verdict should be for $1,000, with 6 per cent. interest from that date. The verdict was as follows:

"We, the jury, find the issues in favor of the plaintiff and assess her damages at the sum of $1,000, with 6 per cent. interest from July 3, 1917."

The judgment rendered thereon was that the plaintiff—

"have and recover of and from the defendant the said sum of one thousand dollars ($1,000.00) with six (6) per cent. interest from July 3, 1917," etc.

The verdict and judgment were attacked both in the motion for new trial and in arrest. Defendant has appealed, assigning the above and other errors as matters for review.

The vital claim made is that defendant's demurrer to the evidence should have been sustained, and that plaintiff's own evidence shows she is not entitled to recover. But we are unable to agree with this contention. The most that can be said against plaintiff's evidence is that some portions of it are open to an interpretation which, if adopted, tends to corroborate the evidence offered by defendant in support of its claim " that, after making the deposit, plaintiff withdrew it and lent it to the bank's president, Roer (who was running the bank), and accepted his personal note therefor. But it is manifest that, throughout her testimony, plaintiff was insisting she did not withdraw the money from the bank nor lend it to the president, or authorize the sane to be done, nor accept him as her debtor in place of the bank. The evidence tends to show that plaintiff is a woman of little education, able to read only small and simple words, wholly unacquainted with banking or business methods of dealing with a bank, and that she had never drawn but one check in her life, that being the one drawn under the supervision of her attorney for use in making formal demand for the deposit. The portions of her evidence which defendant relics on as destructive of her case consist largely of answers of "Yes, sir" to questions of cross-examining counsel, wherein the facts necessary to the theory relied upon as a defense are embodied as conclusions. While she gave similar answers to other questions which possibly were not so framed, yet a consideration of her whole testimony leaves room for the view that such answers were given without the witness being able to make clear the distinction between what she knew and intended to do at the time the transaction took place, and what she, at the time of the trial, knew had in fact existed and had really been done by the president of the bank. (This will be made more clear later on.) In other words, the portions of her testimony relied upon by defendant as conclusively destroying her case are open to two constructions; one of them being that which defendant contends for, and the other that outlined above. Hence plaintiff's case is not conclusively destroyed, since it is for the jury to say which interpretation is the proper one to be applied to the aforesaid evidence, and whether it should be regarded as contradicting and overturning her positive evidence clearly supporting her cause of action, or whether it should be considered as at least not in contradiction thereof. Guthrel v. Guthrel, 153 Mo. App. 214, 132 S. W. 274.

It seems that in June, 1913, plaintiff, having received a draft for $1,000 insurance on the life of her deceased husband, was advised by a friend to deposit it at interest in the defendant bank. This friend went with her to the bank and made known her business to the president thereof, but did not remain to see it transacted. Plaintiff says she did not know the difference between a time deposit and one subject to check, nor did she know that interest was paid only on the former and not on the latter. She had never deposited money In a bank before. She says that the president told her to sign her name on the back of the draft so they could get it cashed and then she could get the money in a few days; that she told him she wanted to leave her money in the bank so she could use it to pay her street paving bills; that she did not know she was entitled to a deposit slip or a passbook, nor did she receive any; that the president told her she ought to take a box in the bank vault for...