Hernandez v. First National Bank of Omaha
| Decision Date | 12 July 1933 |
| Docket Number | 28513 |
| Citation | 249 N.W. 592,125 Neb. 199 |
| Parties | DIONICIO HERNANDEZ, APPELLEE, v. FIRST NATIONAL BANK OF OMAHA, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. " A deposit of funds in the savings department of a national bank, upon an agreement for repayment with interest at a stipulated rate, creates the relation of debtor and creditor between the depositor and the bank, and not that of trustee and cestui que trust." State v. People's National Bank, 75 N.H. 27, 70 A. 542.
2. A national bank, with reference to the business carried on in its savings department, is not to be deemed a " savings bank," and is not carrying on a " savings bank" business in the technical sense of these terms.
3. In the instant case, in view of the record presented, assuming the validity of a by-law or rule providing as to withdrawals of deposits in the savings department of a national bank that " the possession of the pass-book shall be sufficient authority to the bank to warrant any deposit or payment made and entered therein," the language quoted must be deemed qualified by the force of the requirement, in force and effect a by-law or rule duly adopted, that the presentation of such pass-book for withdrawal of deposits shall be accompanied by a valid " savings department receipt" to which the genuine or authorized signature of the depositor shall be fixed.
4. The business of a national bank is affected by a public interest, carried on for a public purpose and for the promotion of public good. Public policy will not permit such an institution to contract against liability for the negligence of its officers and agents.
5. The trial court having by its instructions imposed upon the plaintiff the burden of proving that the de fendant bank, through its employees and agents, was guilty of negligence in paying out the moneys in controversy on forged " savings department receipts," a verdict for plaintiff having been returned thereon which is supported by sufficient evidence in the record, no error prejudicial to the defendant bank appears.
Appeal from District Court, Douglas County; Fitzgerald, Judge.
Action by Dionicio Hernandez against the First National Bank of Omaha, a corporation. Judgment for plaintiff, and defendant appeals from an order overruling its motion for a new trial.
Affirmed.
Finlayson, Burke & McKie, for appellant.
Shotwell, Monsky, Grodinsky & Vance, Henry J. Beal and Harry B. Cohen, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ.
This is an action at law by Dionicio Hernandez against the First National Bank of Omaha for the recovery of certain moneys deposited by him in the "savings department" of the defendant bank. Without setting forth the pleadings of the parties, it may be said that the making of the deposits by the plaintiff is admitted as alleged, and as its defense, in substance, defendant tenders a plea of payment made in good faith, without negligence, and in strict accord with the special terms of the written contract of deposit. Upon this issue there was a trial to a jury resulting in a verdict and judgment for the plaintiff. From the order of the trial court overruling its motion for a new trial, the defendant appeals.
The evidence discloses that the plaintiff, Dionicio Hernandez, is a Mexican. His knowledge of English is limited and he testified with the aid of an interpreter. In December, 1926, he was desirous of opening a "savings account." He appealed for assistance to a Mrs. C. F. Secord, then a social welfare worker among his countrymen of Omaha, and who could speak Spanish. She suggested opening an account with the defendant bank. Hernandez turned over to her two checks of $ 500 each for this purpose. Mrs. Secord then obtained from the bank the usual signature card, which Hernandez executed by signing thereon, in his own handwriting, "Dionicio Hernandez," under and following the words: "I hereby agree to the by-laws, rules and regulations governing the savings department of First National Bank of Omaha, Omaha, Nebraska." At this time Hernandez also gave Mrs. Secord an additional $ 70 which, together with the two checks theretofore received, was on December 23, 1926, deposited with the defendant bank. The savings account was then opened in plaintiff's name, as he had requested, the bank having been informed that he was the real depositor, and was making use of the services of Mrs. Secord to transact the business of opening this account in his behalf. The usual savings book (referred to ordinarily as the pass-book) was accordingly made up by the defendant, showing a deposit of $ 1,070, and delivered to Mrs. Secord, who in turn transmitted it to plaintiff. In this pass-book are printed, "Rules Governing Savings Deposits," one of which is: "The pass-book shall be the voucher of the depositor, and the possession of the pass-book shall be sufficient authority to the bank to warrant any deposit or payment made and entered therein."
Thereafter plaintiff made additional deposits in said account until the same aggregated $ 4,460.28. In each instance the sum of money intended for deposit was by plaintiff given to Mrs. Secord, and she transmitted it to the bank, together with the pass-book, in which proper entries were made by defendant's officers. It also appears that, later during the transaction of this business, Mrs. Secord obtained this "pass-book" from Hernandez upon the pretense that the safe-keeping of the same would be thereby promoted, and thereafter she kept continuous possession of the same. She then, in violation of the confidence bestowed, made use of this "pass-book," in connection with forged receipts, to withdraw sums of money at different times from this savings account, unlawfully and without authority. These sums of money so withdrawn by her ultimately totaled $ 3,382.31. The evidence discloses that she then absconded.
Officers of the defendant bank, as witnesses, detailed at length the manner and method of the business transacted by this "savings department." They testify that the rule as to possession of pass-book authorizing payment was in force during the entire period of the transactions involved in the instant case; that in making withdrawals from the deposits, in addition to the presentation of the pass-book, it was necessary to present a "savings department receipt," made upon blanks furnished by the bank, and executed by the depositor setting forth the amount of money paid. This "savings department receipt" on its face also contained the words, "pass-book must accompany this receipt." These bank officers further testified that in each of the payments by the bank which is here the subject of litigation the pass-book was presented with a receipt, and payment was made thereon by the proper officer of the defendant; that the signature card is employed, not only for the purpose of expressing in writing the formal agreement of the depositor to the "by-laws, rules and regulations," but also for identifying the account and the signature of the customer; that this signature card is kept on file in the paying teller's cage to enable the teller to determine whether or not any instruments presented to him purporting to be signed by the owners of savings accounts, including the savings bank receipts, bear the genuine signatures of such owners; that these cards are kept directly behind the paying tellers of this department, where they are quickly available for use at all times, and that it is the duty of these officers to compare signatures on withdrawal receipts with the signatures on the signature cards. After examining each of the forged receipts on which, in connection with the pass-book, the withdrawals in suit were made, their testimony is that "under study" there appears to be a "marked" or "probable" dissimilarity between the signature on the signature card and the signature on each of the forged receipts. No witnesses testify that the questioned signatures are genuine.
The evidence of the paying teller who made most, if not all, of the payments in litigation, in substance, is that she at all times knew that plaintiff was a man, and the actual depositor, though she had never seen him; that she recognized Mrs. Secord as his agent, bringing in the pass-book and making deposits, and also bringing in the book, and, in connection with the "savings department receipts" purporting to have been executed by Hernandez in person, making the withdrawals in suit; that, while the first three or four receipts presented in Hernandez's behalf, which included all the savings bank receipts on which his genuine signatures appear, were probably compared by her with the signature card, thereafter, "knowing Mrs. Secord well enough," such comparison probably was not made.
Plaintiff's expert witness testimony, practically uncontradicted, must be deemed sufficient to establish that all the questioned savings department receipts were forgeries. These original instruments were introduced in evidence and submitted to the trial jury, together with the admittedly genuine signature of plaintiff.
Among other provisions contained in the "Rules Governing Savings Deposits" printed in plaintiff's pass-book are those providing for the regular crediting of interest on deposits made at certain times and at definite rates, and for withdrawal of deposits with interest accrued thereon, in whole or in part, subject to certain notice, at the option of the depositor, at any time desired.
On the discovery of the fact of the unauthorized withdrawals from his account, plaintiff instituted this action.
The bank contends that a by-law of a savings...
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