Kehl v. Omaha National Bank
| Citation | 254 N.W. 397,126 Neb. 695 |
| Decision Date | 13 April 1934 |
| Docket Number | 28868 |
| Parties | HENRY KEHL, APPELLEE, v. OMAHA NATIONAL BANK, APPELLEE: FIRST NATIONAL BANK OF OMAHA, ADMINISTRATOR, INTERVENER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: JAMES M FITZGERALD, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. While the recitals in a judgment are presumptively true, an affirmative showing in the bill of exceptions that they are not true must prevail over the presumption.
2. Records and memorandums made by a person in the ordinary course of his business of acts which his duty, in such business, requires him to do for others are, in case of his death, admissible evidence of acts so done.
3. Where a wife deposited money in a bank payable to herself or husband as joint tenants with a right of survivorship, and not as tenants in common, a completed gift is consummated by the wife to the husband, notwithstanding the fact that the husband never had manual possession of the passbook.
4. A deposit of money in a bank by a wife and made payable to herself and husband, with the express provision that it was a joint tenancy with survivorship, and not as tenants in common, is presumed to have been made by the wife with donative intent and for the benefit of the husband with the intention of giving to him, if he survives, the complete title to the funds. In re Estate of Johnson, 116 Neb. 686, 218 N.W. 739, followed.
5. " Section 8-164, Comp. St. 1929, relating to the payment by a bank of deposits entered as payable to any one of two or more persons named therein, not only is intended for the protection of the bank, but also fixed the property right of the persons named, unless the contrary appears from the terms of the deposit." In re Estate of Johnson, 116 Neb. 686, 218 N.W. 739, followed.
6. If the mental condition of a person becomes a material subject of inquiry, a nonexpert witness may be permitted to state his opinion concerning that condition, if he is shown to have had a more or less extended and intimate acquaintance with such person, and gives the facts and circumstances upon which the opinion is based. The weight to be given such testimony is a question for the jury, to be considered by them in connection with the credibility and intelligence of the witness, and his opportunities for observation.
7. Bainter v. Appel, 124 Neb. 40, 245 N.W. 16, followed.
Appeal from District Court, Douglas County; Fitzgerald, Judge.
Action by Henry Kehl against the Omaha National Bank, wherein the First National Bank of Omaha, as administrator of the estate of Christine Kehl, deceased, intervened. From the judgment, the intervener appeals.
Judgment reversed, and cause remanded.
O. B. Clark and Finlayson, Burke & McKie, for appellant.
King & Haggart and Wells, Martin, Lane & Offutt, contra.
Heard before GOOD, EBERLY and DAY, JJ., and CARTER and CHAPPELL, District Judges.
This suit was brought by Henry Kehl, husband of Christine Kehl, deceased, to recover from the Omaha National Bank the amount of a savings account standing in the name of Mr. and Mrs. Henry Kehl. The account was originally opened in 1920, and stood in the name of Mrs. C. Kehl until April 6, 1929, at which time the records of the bank were changed to a joint account. Henry Kehl's name was at this time added to the pass-book, the ledger account of the savings' department and the card in the central filing system. On August 5, 1930, a new pass-book was issued to Mr. and Mrs. C. Kehl. From April 6, 1929, until the date of her death, Mrs. Kehl made regular deposits in the account, using the pass-books on which her husband's name appeared. Mrs. Kehl died April 24, 1932. The signature card covering the account was not dated. Stamped on the face of the card with a rubber stamp was the following joint tenancy agreement: "It is agreed that the persons whose names are signed hereon are the owners of the moneys deposited in this account as joint tenants with the right of survivorship and not as tenants in common, and the bank is authorized to pay out said moneys on the order of either during the lifetime of both, and after the death of either, said money shall be the property of and payable to the order of the survivor." The First National Bank of Omaha, administrator of the estate of Christine Kehl, deceased, was impleaded and assumed the defense. The Omaha National Bank admitted possession of the account in the sum of $ 6,860.86, and was interested in the litigation as a stake-holder only. John Lemly, a son of Christine Kehl by a former marriage, claims, through the First National Bank of Omaha, the administrator of Mrs. Kehl's estate, an interest as an heir in the account, alleging that the joint tenancy agreement shown on the records of the bank was unauthorized by Mrs. Kehl and, even if authorized, that she was incompetent at the time to enter into such an agreement. The trial court sustained plaintiff's motion for a directed verdict and, from an order overruling intervener's motion for a new trial, the intervener brings this appeal.
It is the contention of plaintiff that both parties moved for a directed verdict and that the sustaining of plaintiff's motion was equivalent to a verdict by a jury on the findings of fact. The record discloses, however, that plaintiff's motion for a directed verdict was made and sustained by the court before intervener moved to dismiss plaintiff's petition. Why intervener moved to dismiss after plaintiff's motion was sustained, we are unable to say. We fail to see, however, how it could in any way affect the proceedings held previous to the time it was made. The judgment entered recites: "The intervener thereupon moves the court to dismiss plaintiff's petition, and the plaintiff moves for dismissal of the petition of intervention and for findings and judgment thereon in his favor by the court." The judgment entered is in direct conflict with the proceedings shown in the bill of exceptions. Under these circumstances the record shown by the bill of exceptions must prevail. This court has held: "A bill of exceptions duly allowed and certified by the trial judge imports absolute verity and its truthfulness cannot be assailed collaterally." Gregory v. Kaar, 36 Neb. 533, 54 N.W. 859. In the case of Schlachter v. St. Bernard's Roman Catholic Church, 20 S.D. 186, 105 N.W. 279, it was held: "While the recitals in a judgment are presumptively true, an affirmative showing in the bill of exceptions that they are not true must prevail over the presumption." We must therefore consider the case on the basis of a directed verdict for the plaintiff in which the intervener did not join.
Complaint is made that the records of the bank were not sufficiently identified to permit their introduction in evidence. The evidence discloses that the records of the bank were kept by numerous clerks and officials. At the time the joint tenancy agreement was placed of record in the bank, it appears that one Erickson handled the transaction for the bank and made the entries on the records. The record shows that Erickson died four or five days before the trial in the lower court was commenced. With Mrs. Kehl dead and Henry Kehl barred from testifying by statute, the question arises whether the evidence given by one McAllister, the auditor in charge of the books of the Omaha National Bank, was proper. Mr. McAllister identified the handwriting of Erickson, testified that he was familiar with the method of keeping the records before and after the date of the agreement in question, and stated that the entries pertaining to the transaction were made in the usual course of business. The Omaha National Bank is a mere stakeholder in the litigation and has no interest in the fund except as such. The trial court admitted the records in evidence over objection and the intervener alleges that this constitutes prejudicial error. The reasons justifying the admission of this class of evidence have not been touched upon to any great extent by this court. The reasons for its admission in evidence are well set forth in 3 Wigmore, Evidence (2d ed.) sec. 1522, and we quote freely from this work:
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