Mouse v. Central Savings & Trust Co.
| Citation | 167 N.E. 868,120 Ohio St. 599 |
| Decision Date | 22 May 1929 |
| Docket Number | 21446 |
| Parties | Mouse v. The Central Savings & Trust Co. |
| Court | United States State Supreme Court of Ohio |
Banks and banking - Liability to depositor imprisoned for issuing check without sufficient funds - Mistaken nonpayment proximate cause of arrest upon affidavit of payee - Bank not absolved by independent intervening cause - Depositor's mistaken arrest and imprisonment, without malice, constitutes actual damage - Section 710-192, General Code.
The mere fact that the intervention of a responsible human being can be traced between the defendant's alleged wrongful act and the injury complained of does not absolve him upon the ground of lack of proximate cause if the injury ensued in the ordinary course of events, and if the intervening cause was set in motion by the defendant.
Where the record shows that a bank, through mistake or error and though without malice, has refused payment of a check which should have been paid, and that the payee of the check, after consulting with the bank and making an investigation into the circumstances and after having been assured that the depositor has no account, has thereafter sworn out a warrant for the arrest of the depositor, under which warrant such depositor has been confined in jail, it is reversible error for the trial court to direct a verdict for the defendant bank upon the ground that as a matter of law such nonpayment of the check is not the proximate cause of the arrest of the depositor.
Under Section 710-132, General Code, the arrest and imprisonment of the depositor because of the nonpayment, through mistake or error and though without malice, of a check which should have been paid, constitutes an actual damage.
This case arises as an error proceeding to a judgment of the Court of Appeals of Summit county, which affirmed a judgment of the court of common pleas of Summit county rendered upon a verdict in favor of the defendant directed by the court at the close of plaintiff's case.
The petition alleged that the defendant bank refused payment of certain checks at a time when the depositor had ample funds to pay such checks, and that a warrant for the arrest of the depositor was thereafter sworn out, under which warrant the depositor was confined in jail. The petition further prayed for damages.
The answer of the defendant admitted that the defendant is a banking corporation engaged in the general banking business in the city of Akron, and admitted the nonpayment of the checks and the fact that the depositor at the time had an account with the bank. The answer further alleged that the defendant had nothing to do with the alleged arrest and imprisonment of the plaintiff, had no wish to injure or humiliate him, and alleged contributory negligence on the part of the plaintiff.
The reply alleged that the bank consulted with the person who filed the affidavit, and that the bank acted without care or caution in the matter, and denied that the plaintiff was guilty of contributory negligence.
At the close of plaintiff's testimony, the defendant moved that the jury be directed to return a verdict in favor of the defendant, and the court made the following statement:
The jury thereupon returned a verdict in favor of the defendant under the instruction of the court, upon which verdict judgment was entered, which was affirmed, as above set forth, by the Court of Appeals of Summit county.
The case comes into this court upon allowance of motion to certify the record.
Mr. Carl M. Myers, for plaintiff in error.
Messrs. Beery, Sheppard, Meisner & Pool, for defendant in error.
This record presents two questions of legal significance. The first is whether, in case of the arrest of the drawer of a check, upon a warrant issued upon an affidavit sworn out by the payee, after notice given by the bank to the payee that the check is dishonored because there is no account in the name of such depositor with the bank, and after such statement is repeated to the payee by the bank upon an investigation by the bank and the payee, such statement being made by the bank's employee through mistake or error, but without malice, the arrest of the depositor and his consequent imprisonment is as a matter of law not the proximate result of the act of the bank.
The second question is whether such an arrest and imprisonment of itself alone constitutes an actual damage.
In order to discuss these questions, it will be necessary to consider the facts as shown by the record.
The plaintiff gave some evidence in favor of the allegations of his petition, and indeed the defendant concedes the following facts:
The depositor opened his account at the bank on April 9, 1924 signing his name on the identification card in a form which was read "Meuse." The account was hence opened in the name of "G. C. Meuse," and so written in the deposit book received by the depositor at the time. Two later deposits were made by Mouse, prior to his arrest, and prior to the return of the two checks in question. These two checks were signed "G. C. Mouse." Prior to issuing these checks, Mouse signed a card authorizing his wife to draw checks upon his account, in which the name of the account is called "Mr. and Mrs. G. C. Meuse," but the signature of Mouse was written "G. C. Mouse," the wife's signature was written and the wife's name also appeared "Mrs. G. C. Mouse." Hence the bank records contained three entries where the name was written "Mouse," and this upon a card headed "Name of Account: Mr. and Mrs. G. C. Mouse."
On June 13, and again on June 17, 1924, Mouse gave his wife checks which she cashed with Elias Cory. It is conceded that at all times Mouse had sufficient money in the bank to meet the checks so issued. The bank charged Cory's account with the first check, and notified Cory that the check was not good when he presented the second check for credit, stating that the account was closed. Cory went to the bank and personally interviewed the bookkeeper. The two looked for the signature on the books, but failed to locate the correct name. Several days later, Cory went to the police court and filed an affidavit, charging Mouse with issuing checks without funds. A warrant was issued upon this affidavit, and Mouse was arrested and thrown into jail until released upon bond. The bank, upon learning of the arrest, and discovering the facts respecting Mouse's account made immediate payment of the checks, and procured Mouse's release from prison by having an officer of the bank sign his bond for that purpose. The charge was dismissed.
Since the bank was in possession of a card signed and as well as the one which was read "G. C. Meuse," there was some evidence of negligence upon the part of the bank; but the court directed a verdict upon the ground that there was no evidence that the act of the bank caused the arrest of the plaintiff.
The majority of the court disagree with this conclusion. There was evidence in the record tending to show, in our opinion, that the act of the bank was the causative factor in the entire transaction. The very gist of the prosecution was the nonpayment of the check. If at any time prior to the institution of the prosecution the bank had notified Cory of its mistake, concededly Cory would not have sworn out the affidavit and caused the warrant to issue. This is not the case in which the negligence of the bank was a mere condition upon which the independent act of Cory intervened to produce the result. The case is differentiated from the Hartford case, 170 Cal. 538, 150 P. 356, L.R.A., 1916A, 1220, which we discuss below, by the fact that Cory deliberately consulted with the bank, looked over its books with the bookkeeper, and made a searching investigation before he instituted the prosecution. Hence evidence was presented tending to show that the act of Cory was under the control of the bank, in the dense that if its bookkeeper had carefully compared the entire records, and had observed the name "Mouse" plainly written in at least three places on the records of the bank, it would have been evident that Mouse had an account with the depositary, and the arrest would have been stayed.
This case is entirely dissimilar from the familiar case in which the delay in the delivery of goods is caused by a tort-feasor, and while the goods so delayed are in transit or on the water, they are injured by some tempest. In such a case, if there had been no delay, the tempest would have occurred exactly as it did occur, and hence the tempest is an independent intervening cause. In this case, however, if the bank had at any time notified Cory of its mistake, he would not have sworn out the affidavit. There would have been no arrest if the bank had not reported that the two checks were not good, and persisted in that report upon consultation with Cory. Hence there is some evidence to the effect that the connection of the bank with the transaction is more than that of merely being a remote factor in the process by which Mouse was wrongfully arrested and confined in the county jail. Reasonable minds might conclude as a matter of fact from this record that the bank's act, even though entirely without malice, stimulated and...
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