Horgen v. Chaseburg State Bank
| Decision Date | 12 April 1938 |
| Citation | 227 Wis. 510,279 N.W. 33 |
| Parties | HORGEN v. CHASEBURG STATE BANK et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Crawford County; S. E. Smalley, Judge.
Reversed.
Action in replevin begun August 22, 1936, by Cornelius Horgen against ChaseburgState Bank and Fred. O. Lowe to recover a certificate of deposit. From judgment for plaintiff, defendant Chaseburg State Bank appeals.
Fred O. Lowe, a cattle buyer, was indebted to defendant bank. John Lowe, his brother, was cashier. In December, 1935, Fred and plaintiff called at the bank and talked to John. Plaintiff indorsed his $8,000 certificate of deposit on a Boscobel bank and delivered the certificate to John. It remained in the possession of the defendant bank. Plaintiff claims that he had agreed to purchase twenty-one or two steers from Fred, and that the purpose of depositing the certificate with defendant bank was to secure checks which plaintiff might draw to pay for the steers, and that the agreement was that when the steers were paid for, plaintiff was to have his certificate back. Defendant bank claims that plaintiff agreed to permit Fred Lowe to put up the certificate as security for the debt then owing by Fred to defendant bank. Plaintiff paid Fred for the steers, but Fred's debt to the bank has not been paid.
Trial was had to a jury, which answered in the affirmative the following question: “Was the certificate of deposit in question delivered by the plaintiff to the bank pursuant to an understanding between the plaintiff and defendants that it was to be held by the bank only as security for the payment of cattle the defendant Lowe was to purchase for plaintiff in the spring of 1936?”
Defendant bank appeals from the judgment accordingly entered upon the proposition that defendant bank did not have a fair trial because of the prejudicial conduct of plaintiff's counsel.
Further facts will be stated in the opinion.
F. E. Steele and Hale & Skemp, all of La Crosse, for appellant.
J. E. Barnett, of Boscobel, and Harry E. Carthew, of Lancaster, for respondent.
[1][2] Irrelevant and prejudicial matter was brought to the attention of the jury (1) by plaintiff's effort to introduce clearly immaterial evidence with relation to directions by the Banking Commission that the bank discharge its cashier and to the matter of the use of bonds of Mrs. Lietke, a customer of the bank, as collateral to Fred Lowe's account; (2) by plaintiff's unsupported accusations that John Lowe was guilty of making false and fraudulent representations to plaintiff to induce him to lend his property to Fred Lowe; and (3) by framing of questions so as to carry imputations of irregularities on the part of the bank and its cashier. Early in the proceedings, at a time when the conduct of counsel was first challenged, the court called attention to the only issue actually raised by the pleadings by saying:
These facts are undisputed: The plaintiff did place his certificate of deposit for $8,000 in the keeping of the Chaseburg Bank, and the bank had insisted that Fred Lowe furnish collateral to secure his account. The only question in issue, then, is the one framed and submitted to the jury. The trial judge, in ruling on motions after verdict, said: “The story of the plaintiff as to how he came to turn the certificate over to the bank is hard to believe, and likewise the story of Fred Lowe as to how he came to get the plaintiff to go to the bank and turn the certificate over to the bank is hard to believe, he having years before borrowed $24,000 or $25,000 of Mr. Horgen which he was unable to repay and never had paid.”
But it is certain that Horgen left his certificate at the bank for one of two purposes; either the one claimed by the plaintiff, or for the purpose claimed by the bank. It will be seen that a jury question existed, and this should have been passed upon by a jury free from prejudices created by intimations of acts participated in by John Lowe which could occur only if he were dishonest and willing to take advantage of customers of the bank. The evidence offered as bearing upon these points was properly rejected because so disconnected with the transaction to be investigated in this trial as to be outside the limit or scope of such investigation, and therefore immaterial.
In portions of counsel's opening statement, we find the following:
“The testimony will show that John Lowe, the cashier of this bank, knew all about this transaction (with one Gannon) and was a party to it and that the bank had notice of it, and that he signed this note with his brother was given to Mr. Gannon.
“It will show more than that; it will show that this note given to Mr. Gannon was a forged note.
“It will show that in connection with the transactions with Mr. Gannon and in connection with this matter that they had Mr. Gannon sign a statement of his property; that the bank filled it in; that John Lowe at the bottom of that official paper there in the bank certified as a notary public that Mr. Gannon signed it before him, a violation of the laws of the state of Wisconsin. ***
“The same examination (by the bank examiners) disclosed the fact that in connection with this same Fred Lowe account the bonds of a certain woman who resided up at Chaseburg had been embezzled by somebody. ***
The portions of the opening statement to which exceptions were taken are vigorous in insinuation that fraud had been perpetrated upon plaintiff; that the cashier of the bank was so intimately associated with the matters as to be guilty of grossly improper conduct. The injection of the fact of the use at one time of certain bonds as collateral to the Fred Lowe account, these bonds belonging to a customer of the bank, accompanied as it was by the direct charge of their embezzlement made in the hearing of the jury, could not help but raise doubts as to the credibility of defendant's witnesses and influence the mind of the triers of fact against defendant in weighing the testimony. This is also the effect of an unsupported charge, in substance, that a fictitious property statement of one dealing with the bank whose credit was being used as collateral to Fred Lowe's account had been made up. It is also unfortunate that, in connection with these and other matters, there...
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...not be founded upon direct evidence, provided that the facts so asserted may be inferred from the evidence. 1 Horgen v. Chaseburg State Bank (1938), 227 Wis. 510, 515, 279 N.W. 33; and Affett v. Milwaukee & S. T. Corp. (1960), 11 Wis.2d 604, 607, 106 N.W.2d 274, 86 A.L.R.2d 227. 'A statemen......
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Xiong v. Kulcinski, No. 2008AP1588 (Wis. App. 10/29/2009)
...explain how the objectionable statement affected the jury's award. American Family directs our attention to Horgen v. Chaseburg State Bank, 227 Wis. 510, 518, 279 N.W. 33 (1938), in which statements by counsel regarding facts not supported by the record were held to be sufficient to justify......