Sabatino v. Curtiss National Bank of Miami Springs

• Decision Date: 22 June 1971
• Docket Number: No. 30174.,30174.
• Citation: 446 F.2d 1046
• Parties: Louis A. SABATINO, as Ancillary Administrator of the Estate of Jose Juan D'Agostino, Deceased, Plaintiff-Appellee, v. CURTISS NATIONAL BANK OF MIAMI SPRINGS, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 1046 (1971)

Louis A. SABATINO, as Ancillary Administrator of the Estate of Jose Juan D'Agostino, Deceased, Plaintiff-Appellee, v. CURTISS NATIONAL BANK OF MIAMI SPRINGS, etc., Defendant-Appellant.

No. 30174.

United States Court of Appeals, Fifth Circuit.

May 24, 1971.

Rehearing Denied June 22, 1971.

Lewis Horwitz, Miami Beach, Fla., for appellant.

Louis A. Sabatino, Miami, Fla., for appellee.

Before JOHN R. BROWN, Chief Judge, and PHILLIPS^* and INGRAHAM, Circuit Judges.

ORIE L. PHILLIPS, Circuit Judge:

Jose Juan D'Agostino¹ commenced this action against the Curtiss National Bank of Miami Springs, Florida,² a national banking corporation, on April 17, 1967.

On January 11, 1967, and prior thereto, through February 9, 1967, and subsequent thereto, D'Agostino maintained a regular checking account in the Bank, identified on the Bank records by the following:

"XXX-XX-XXX 5 3-31-64 JOSE JUAN D\'AGOSTINO 25 DE MAYO 1347 VICENTE LOPEZ PROVINCIA DE BUENOS AIRES REPUBLICA ARGENTINA"

Shortly after February 9, 1967, the Bank sent D'Agostino a statement showing the amount of checks charged to his account and deposits credited to such account during the period January 11, 1967, to February 9, 1967. There is a dispute whether a cancelled check for $18,750, charged as a debit in the statement, was enclosed with the statement. The other checks shown on the statement were enclosed. There is no dispute with respect to deposit credits.

In the complaint, D'Agostino alleged that on or about February 3, 1967, the Bank wrongfully paid out and charged to his account $18,750 to a person unknown to D'Agostino; that he had not written or made a check or other authorization in writing to anyone for such amount, nor did he authorize anyone else to do so for him; that on receipt of such statement D'Agostino was confined to his bed because of illness; that the Bank did not return to him or anyone in his behalf a cancelled check for $18,750; that the Bank had failed to produce a photostat of a check for such amount.

On receipt of such statement, D'Agostino, who was a citizen of Buenos Aires, Argentina, wrote a letter to the Bank protesting that the charge of $18,750 to his account was erroneous. He received no reply to such letter. The Bank did not deny that it had received the letter, nor that it failed to reply thereto, nor that it did not have such letter in its files, but it did not produce the letter at either trial of this case. (The reason there were two trials will appear infra.)

Having received no reply to his letter, D'Agostino, who was still confined to his bed because of illness, sent two of his brothers to Miami Springs to take the matter up with the Bank. When the brothers protested to the Bank that the charge was incorrect, the only explanation given by the Bank was that a check for $18,750, drawn on D'Agostino's account with the Bank, had been presented and paid by the Bank. When told that D'Agostino's check for $18,750 had been presented to and paid by the Bank, the brothers became quite excited. When advised by the brothers of the position taken by the Bank, D'Agostino commenced the instant action.

The statement sent by the Bank to D'Agostino for the period January 11, 1967, to February 9, 1967, showed a credit balance at the beginning of the period in D'Agostino's account of $12,066.06. It showed a check for $1,000 cashed on January 19, 1967, and a balance of $11,066.06; a check for $2,500 cashed on January 30, 1967, and a balance of $8,566.06; a deposit on February 1, 1967, of $10,000, and a balance of $18,566.06; a check for $750 cashed on February 2, 1967, and a balance of $17,816.06; a check for $18,750 cashed on February 3, 1967, and an overdraft of $933.94; a check for $150 cashed on February 6, 1967, and an overdraft of $1,083.94; an entry of $1,500 on February 7, 1967, under the heading "Deposits & Checks" and entry of the figure $1,500, followed by "RT" under the heading "Checks & Analysis" and the same overdraft of $1,083.94. Apparently, one $1,500 entry offset the other. The statement then showed a charge for a check for $1,500 cashed on February 8, 1967, and an overdraft of $2,583.94; a credit for a deposit of $100 on February 9, 1967, and an overdraft of $2,483.94.

The Bank offered no proof that it had at any time advised D'Agostino that when it cashed the check for $18,750 on February 3, 1967, it overdrew his account in the amount of $933.94, nor of the overdrafts caused by the payment of subsequent checks, as shown on the statement.

On June 6, 1967, D'Agostino was still ill, and proceedings were commenced to perpetuate his testimony by taking his deposition, but before it could be taken D'Agostino died. Thereupon, Louis A. Sabatino, as administrator of the estate of D'Agostino, deceased, was substituted as party-plaintiff.

Trial by jury was waived and the case came on for trial before the court, which resulted in a judgment in favor of the Bank. Sabatino appealed.

At the first trial, the administrator offered in evidence, as Plaintiff's Exhibit 6, a blue-covered book³ used by D'Agostino for keeping a record of his deposit account with the Bank. It contained the original entries made by D'Agostino, showing among other things the dates, numbers and amounts of checks he wrote on his account with the Bank. As a foundation for introducing the Blue Book, the administrator offered the testimony of one of the brothers of D'Agostino, who testified that he knew the handwriting of D'Agostino well and had observed him make entries in the Blue Book on numerous occasions; that when D'Agostino wrote a check he entered it in the Blue Book; that he entered only checks drawn on the Bank.

In its opinion on the first appeal, the court gave exhaustive consideration to the question of the admissibility of the Blue Book, and held it was admissible. See Sabatino v. Curtiss National Bank of Miami Springs, 5 Cir., 415 F.2d 632.

The court concluded it was unnecessary to consider the two other grounds urged as error by Sabatino.

The court held that the Blue Book provided some evidence that D'Agostino did not receive from the Bank the check for $18,750.

On retrial after remand, the same judge who presided over the first trial heard the case. He found in favor of the administrator and entered judgment in his favor for $18,750, with interest and costs.

The parties stipulated that the testimony of any witness given before the court at the first trial, as reported by the official court reporter, might be used by either party and considered by the court in toto at the second trial.

All of the testimony and exhibits introduced at the first trial were offered and received at the second trial. In addition thereto, Sabatino, in his capacity as administrator and counsel for D'Agostino introduced the Blue Book, and he personally testified as to the physical appearance of D'Agostino's two brothers. In addition to the testimony and exhibits introduced at the first trial, the Bank introduced as exhibits its records of D'Agostino's account and the testimony of Cush A. McDonald, Jr., a vice-president and cashier of the Bank, who pointed out discrepancies between the Bank's records and D'Agostino's records in the Blue Book. It also introduced as an exhibit at the second trial a summary of such discrepancies, prepared by McDonald.

We have not been provided with a transcript of the record and testimony at the first trial, except as it is in a small part reflected in the appendix. We have all of the original exhibits. Sabatino, in his capacity as administrator and counsel, in his statement of facts in appellee's brief in the instant appeal, adopted and set out the acts as stated by this court in its opinion in Sabatino v. Curtiss National Bank, supra. And the Bank, in its reply brief, in nowise challenged the accuracy of such statement of facts made by this court. Hence, we have relied on such statement by this court as an accurate statement of the facts established by the testimony and exhibits introduced at the first trial and reintroduced at the second trial.

The trial court, at the second trial, did not attribute too much weight to the entries made by D'Agostino in the Blue Book. While part of the writing in the Blue Book is in Spanish, the check numbers, the day of the month and year when checks were written, and the amount of each check appear in Arabic numerals as do the dates and amount of deposits, and there is no difficulty in locating in the Blue Book the entries made therein by D'Agostino in his own handwriting, covering the period from January 11, 1967, to February 9, 1967, the period covered by the statement on which the $18,750 check was entered as a debit. Recorded in the Blue Book in D'Agostino's handwriting are all of the checks reflected on the statement, except the check for $18,750, and the date and amount of each check.

Except for the check for $18,750, the largest check reflected on the statement is for $2,500 and the smallest is for $150. The $18,750 check is more than seven times the amount of the $2,500 check.

It would seem very unlikely that D'Agostino would enter the small checks and overlook entering a check for $18,750, especially when it created an overdraft, if in fact he issued such check.

The Blue Book contained entries of checks issued by D'Agostino on February 9, 1967, but they could not have cleared in time to be included on the statement for the period ending February 9, 1967.

The Bank sought to attack the credibility and accuracy of the entries made by D'Agostino in the Blue Book by the witness Cush A. McDonald, Jr. He testified that the bank records of D'Agostino's account showed it paid a substantial number of checks not recorded in the Blue Book; that entries in the Blue Book showed deposits not reflected by the bank records; that the bank records showed amounts of deposits credited to D'Agostino's account not reflected in the Blue Book; and that there were discrepancies...