Peoples Bank and Trust Co. of Van Buren v. Wallace, 86-147

• Decision Date: 22 December 1986
• Docket Number: No. 86-147,86-147
• Citation: 721 S.W.2d 659,290 Ark. 589
• Parties: PEOPLES BANK AND TRUST COMPANY OF VAN BUREN, Appellant, v. Claude WALLACE, Appellee.
• Court: Arkansas Supreme Court

Page 659

721 S.W.2d 659

290 Ark. 589

PEOPLES BANK AND TRUST COMPANY OF VAN BUREN, Appellant, v. Claude WALLACE, Appellee.

No. 86-147.

Supreme Court of Arkansas.

Dec. 22, 1986.

Gant & Gant by Paul Gant, Van Buren, Friday, Eldredge & Clark by George Pike, Jr. and William A. Waddell, Jr., Little Rock, for appellant.

Joel W. Price, Fort Smith, for appellee.

DUDLEY, Justice.

Appellee Claude Wallace agreed to purchase 20,000 shares of stock in Arkansas Reference Laboratories, Inc. for $50,000.00. In performance of his agreement appellee drew a $50,000.00 check on his account with appellant, Peoples Bank and Trust Company of Van Buren, made payable to "Arkansas Reference Lab." The president of Arkansas Reference Laboratory endorsed the check "Deposit Only--North Little Rock Medical Laboratory" and deposited the money in the account of the North Little Rock Medical Laboratory, a separate corporation. After discovering the unauthorized endorsement, appellee made a demand upon appellant bank that the $50,000.00 be credited back to his account. His demand was refused and he filed suit based upon sanctions of the Uniform Commercial Code which impose liability upon banks for paying checks with unauthorized endorsements. The jury awarded appellee $60,500.00. We affirm.

Appellant assigns two points of error. In one point it argues that appellee had no standing to sue as he was not the real party in interest. See A.R.C.P. Rule 17(a). Appellant pleaded the issue of standing in its answers, but did not bring the issue to the trial court's attention, and the trial court did not rule on the issue. It was incumbent upon the appellant to bring the issue to the trial court's attention and obtain a ruling on it. The failure to do so constitutes a waiver of the issue, and we will not consider it on appeal. Gallman v. Carnes, 254 Ark. 987, 497 S.W.2d 47 (1973).

The other assignment of error contains three parts. In it, the appellant contends that the trial court committed reversible error by refusing to grant appellant's motion for a new trial because: (1) the verdict was contrary to the evidence and contrary to the law, (2) the jury instructions were erroneous, and (3) the jury erred in its assessment of damages.

The contention that the verdict was contrary to the evidence or contrary to the law is one which may be the basis for ordering a new trial. A.R.C.P. Rule 59(a)(6). The rule says a new trial may be granted when the verdict is "clearly contrary to the preponderance of the evidence." The trial court thus has some discretion in the matter, Lawson v. Lewis, 276 Ark. 7, 631 S.W.2d 611 (1982), but that discretion is limited, and he may not substitute his view of the evidence for the jury's except when the verdict is clearly against the preponderance of the evidence. Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). The appellant has made no showing that the limited discretion of the trial court was abused.

Next, appellant argues that the verdict is contrary to the law. With the exception of the argument on instructions, the argument does not focus on any trial court error, but deals with abstract issues of law. We do not consider abstract issues of law on appeal. We consider only matters which were raised below and ruled upon by the trial court. C. & L. Trucking, Inc. v. Allen, 285 Ark. 243, 686 S.W.2d 399 (1985).

Appellant next argues that many of the instructions were erroneously given. However, in its reply brief, appellant concedes that it made no objection to some of the instructions which are now submitted as erroneous. As we have said many times, we will not consider arguments on those instructions to which there was no objection, or where necessary, an instruction was not offered. Wallace v. Dustin, 284 Ark. 318, 681 S.W.2d 375 (1984).

The procedure for preserving a point of appeal concerning instructions is not complex. A.R.C.P. Rule 51 mandates that in order to preserve an objection regarding an erroneous instruction of law, the party appealing must make a timely objection by telling the trial judge why the instruction is wrong. Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). When the point of appeal is that the court failed to give an instruction, the party appealing must submit a proposed instruction on the issue. Curtis Communications v. Collar, 11 Ark.App. 14, 665 S.W.2d 301 (1984).

Appellant contends that jury instruction number 12 was abstract and confused the jury. The instruction was a correct statement of the law as set out in the Uniform Commercial Code. However, the instruction did contain two inapplicable sections of the Code which refer to a collecting bank, and it was error for the trial court to refuse to delete portions of a statute which were not applicable to the case. Hunter v. McDaniel, 274 Ark. 178, 623 S.W.2d 196 (1981). However, error is no longer presumed to be prejudicial, Jim Halsey Co., Inc. v. Bonar, 284 Ark. 461, 473-A, 688 S.W.2d 275 (1985), and we will not reverse for error unless prejudice is demonstrated. Globe Life Insurance Co. v. Humphries, 258 Ark. 118, 522 S.W.2d 669 (1975). Appellant does not suggest any possible prejudice in its brief but, at oral argument, suggested that the mention of the collecting bank could have caused the jury to believe that appellant might pass the loss on to the collecting bank. We do not find such prejudice. The instructions, as a whole, left no doubt that appellee was suing the appellant alone and that appellant would be liable for honoring an unauthorized endorsement.

In jury instruction number 13 the trial court instructed the jury on bad faith. At trial, the appellant's objection was:

Defendant objects to the use of the term "bad faith" in this instruction, as not a term defined by the Uniform Commercial Code and is in fact only mentioned in the Code once in a section related to damages.

We find no error. Where the Uniform Commercial Code does not define a term, the trial court may resort to case law in order to define that term. In its brief the appellant makes additional arguments about other defects in the instruction, but those arguments were not raised at trial and are waived.

The appellant's next argument concerns instruction number 17 on ratification. At trial the objection was as follows:

Defendant objects to this instruction as there is no citation of authority given by the plaintiff. Section 85-3-404 addresses ratification and it is defendant's position that that law and no other law should be the authority on the issue of ratification under the facts of this case.

We find no error on the basis of the objection made....