Rumping v. Arkansas National Bank of Hot Springs

• Decision Date: 29 November 1915
• Docket Number: 14
• Citation: 180 S.W. 749,121 Ark. 202
• Parties: RUMPING v. ARKANSAS NATIONAL BANK OF HOT SPRINGS
• Court: Arkansas Supreme Court

180 S.W. 749

121 Ark. 202

RUMPING v. ARKANSAS NATIONAL BANK OF HOT SPRINGS

No. 14

Supreme Court of Arkansas

November 29, 1915

Appeal from Garland Circuit Court; Calvin T. Cotham, Judge affirmed.

Judgment affirmed.

Martin Wootton & Martin, for appellant.

1. The peremptory challenge of the juror Webb should have been allowed. A juror is not to be excluded merely because he is indebted to one of the parties, but where he is at that party's mercy, or has been treated with peculiar indulgence, he is disqualified. 17 Am. & Eng. Enc. of Law (2 ed.), 1127; 29 S.W. 926; 35 W.Va. 337, 13 S.E. 1015; 37 Neb 435; 55 N.W. 943.

2. Appellant was entitled to a directed verdict, because the endorsement of the drafts was void under the statute. Kirby's Dig., §§ 3690, 3691; 41 Ark. 331, 340, 346. That the pool room and horse race were mythical and used merely as a subterfuge by which to obtain manual possession of appellant's drafts, does not militate against the right of appellant to recover as for money wagered. 77 Ark. 279; 93 S.W. 934, 5 L. R. A. (N. S.) 906; 130 F. 905; 147 F. 321; 142 Ill.App. 265.

3. Appellant was entitled to a directed verdict because by the undisputed evidence appellee was charged with knowledge that the drafts were stolen. 77 Vt. 189; 59 A. 827; 1 Addison on Torts, Dudley & Bayley Ed., 423; 48 Ark. 454; 110 Ark. 587; 95 U.S. 655; 60 Mo. 318; 8 Ala. 138; 71 Ga. 400; 51 Am. Rep. 266; 75 Ga. 366; 57 Ill. 295; 11 Am. Rep. 15; 64 Ia. 97; 46 Ohio 381; 8 Pa. 285; 108 Ill.App. 443; 123 Ala. 452, 82 Am. St. Rep. 135; 70 P. 439; 108 Ind. 365; 131 Ia. 97; 101 Ky. 354; 9 Ky. Law Rep. 196; 83 Mo.App. 194; 46 S.E. 163, 54 W.Va. 303; 8 Wy. 54; 59 N.Y.S. 407; 66 L. R. A. 632; 69 N.E. 182; 16 Kan. 396; 93 Mo. 503; 104 Mo. 459.

Rector & Sawyer, for appellee.

1. There is nothing in the record showing that the acceptance of the juror Webb was prejudicial to the rights of the appellant. There is no showing that he was at the mercy of appellees or that he had been treated with such peculiar indulgence as to cause him to favor appellee. There is nothing to show any abuse of judicial discretion by the court in finding him qualified. 30 Ark. 342; 32 Ark. 766-7; 74 Ark. 388.

2. The drafts were not void. They were bank drafts bought and paid for by the appellant. The consideration given for them was not "money or property won at any game or gambling device or any bet or wager whatever," nor were they given "for money or property lent to be bet at any gaming or gambling device, or at any sport or pastime whatever." Chapter 73 of Kirby's Digest, has no application. This is not a suit for money or property lost at a game or gambling device on a bet or wager, but for money stolen, as is patent from the testimony. Yet, even if it could be held that the drafts were lost on a bet or wager, appellant could not recover, because the action is not brought against the person winning the drafts, nor brought within ninety days from the time the drafts were lost. Kirby's Digest, § 3687; 18 Ark. 570. Sections 3690 and 3691 of the Digest are purely defensive. The latter section only applies to assignments of instruments given for gambling debts, and if the consideration of the drafts involved here was not a gambling transaction, section 3691 would not control it.

In support of the proposition that the drafts were either stolen from appellant or were obtained from him by false pretenses, see 78 Ky. 15; 39 Am. Rep. 194; 2 Bishop, Crim. Law, § 808; 67 N.Y. 329; 48 Am. Rep. 754; 57 Mich. 403; 58 Am. Rep. 372; 158 Ill. 660; 49 Am. St. Rep. 180; 72 Ark. 522; 75 Ark. 432.

After the drafts were proven to have been stolen, the only duty resting upon appellee was to show that it held them innocently, and the jury were properly instructed that "in order to recover, the burden is on the plaintiff to prove that his drafts were stolen and that the defendant received them with knowledge thereof." 125 Am. St. Rep. 795, and notes pp. 813, 817, 818; 20 How. (U.S.) 343; 2 Wall. 110; 4 Ga. 287; 130 Wis. 326; 110 N.W. 192; 125 Ga. 41; 53 S.E. 808; 142 N.C. 61, 53 S.E. 847; 118 Ill.App. 441; 21 Wall. 354; 4 Ad. & E. 874; 6 Nev. & M. 372; 71 Conn. 245.

3. There is no merit in appellant's third contention. The authorities cited by appellant under this head are not applicable because the very fact upon which they are based, namely, the question of notice, was properly submitted to the jury by the first and second instructions given at appellant's request, and by the third instruction given at the instance of appellee, and the question was settled by the verdict of the jury. 57 Ark. 577; 135 Am. St. Rep. 281; 2 Ark. 360; 5 Ark. 407; 39 Ark. 491; 23 Ark. 208; Id. 50; 13 Ark. 306; 15 Ark. 505; 46 Ark. 141; 48 Ark. 495.

OPINION

MCCULLOCH, C. J.

The plaintiff, John H. Rumping, was swindled by certain parties in the City of Hot Springs who induced him to wager his property in what was represented to be a pool room where bets were made on horse races. He staked certain drafts aggregating the sum of $ 3,778 on a race, and those drafts were placed in the hands of defendant Arkansas National Bank of Hot Springs for collection. The bank collected the drafts and paid the proceeds out to one Ed Spear, the person who delivered the same to the bank for collection. The drafts were properly endorsed in blank by the plaintiff. This is an action instituted by the plaintiff against the bank and Spear to recover the amount of the drafts. There was a trial of the case before a jury, which resulted in a verdict in favor of the plaintiff against Spear, but in favor of the bank. The plaintiff alone has appealed.

The transactions which formed the basis of this controversy occurred in January, 1913. Plaintiff resided in the State of Montana and came to Hot Springs for the benefit of his health. Shortly after he came to Hot Springs he met a man who introduced himself under the name of Minor, and the latter introduced plaintiff to another man who said that his name was Hamilton and represented himself to be the agent of a concern which he called the "Horse Breeders Association of America." Minor disappeared soon after this transaction, but it turned out afterwards that Hamilton's real name was Jack Porter and that he resided in Hot Springs. The narrative of the plaintiff was a long one, but the substance of his testimony was to the effect that he was taken to the pool room and induced to enter jointly with Hamilton and Minor in a bet on a certain named horse which Hamilton told the plaintiff was sure to win. The pool room was a fake and it was represented to plaintiff that he and his two companions, Hamilton and Minor, had won on their joint bet the sum of $ 108,000. Plaintiff, as his part of the stakes, put up certain drafts aggregating $ 3,778 drawn by the German Trust & Savings Bank on the Continental & Commercial National Bank of Chicago, payable to the plaintiff's order. He endorsed the drafts in blank and they were turned over to the keeper of the pool room with the other stakes. After the bet was won, the pretended keeper of the pool room claimed that it was against the rules to accept drafts and that the winnings would not be paid until the drafts were forwarded and collected so as to show that the bet had been made in good faith. This undoubtedly was a scheme in order to keep plaintiff quiet until the drafts could be collected and the proceeds made away with by the conspirators. In this the conspirators were successful, for they secured the collection of the drafts and got the proceeds before plaintiff suspected that anything was wrong. The drafts reached the hands of Spear who placed them in defendant bank for collection. The bank forwarded the same in regular course of business for collection, and after the returns were received the same were checked out by Spear.

This action was instituted several months afterwards and the evidence adduced by the bank tends to show that it had no knowledge that there was anything wrong with the transaction. The court submitted the case to the jury upon the following instructions, the first two of which were given at the instance of the plaintiff, and the last at the instance of the defendant bank.

"No. 1. In order to recover, the burden is upon the plaintiff to prove that his drafts were stolen, and that the defendants received them with knowledge thereof. It is not necessary, however, that the plaintiff should prove that the defendants had actual knowledge that they were stolen. If they received the drafts under such circumstances as would cause a reasonable man to make inquiry as to how the drafts had been secured, then they are charged as a matter of law, with such information as a careful inquiry would disclose or reveal."

"No. 2. If you find from the evidence in this case that the plaintiff's drafts were stolen from him, or that he was swindled out of them by a fake race or pool room scheme, then you are instructed that it is your duty to carefully consider the circumstances under which the defendants received them. You are to determine from the evidence in the first place, whether they actually knew them to have been stolen, or whether the circumstances were such as to lead a prudent man to inquire as to the means by which they had been obtained. And if you find that the defendants, or either of them wilfully failed to make such inquiry, after knowledge of facts or circumstances which would place an ordinarily prudent man in their position on inquiry then they are responsible for such failure, and are presumed in law to know what such inquiry would have disclosed."

"No 3. If you believe from the evidence in this case that the drafts complained of in this case were received by the Arkansas National Bank from Ed Spear for collection and...