Second Nat. Bank v. Gibboney

• Decision Date: 07 April 1909
• Docket Number: No. 6,626.,6,626.
• Citation: 87 N.E. 1064,43 Ind.App. 492
• Parties: SECOND NAT. BANK v. GIBBONEY.
• Court: Indiana Appellate Court

43 Ind.App. 492

87 N.E. 1064

SECOND NAT. BANK

v.GIBBONEY.

No. 6,626.

Appellate Court of Indiana, Division No. 2.

April 7, 1909.

Appeal from Circuit Court, Harrison County; C. W. Cook, Judge.

Action by Caroline Gibboney against the Second National Bank. Judgment for plaintiff, and defendant appeals. Affirmed.William Ridley and Jewett & Jewett, for appellant. Stotsenberg & Weathers, for appellee.

COMSTOCK, P. J.

Appellee filed her amended complaint, in two paragraphs, in the Clark circuit court against the appellant to recover the sum of $980.93, money which the appellee alleged she had deposited in the name and by the style of “Mrs. Perry Gibboney” in appellant bank. The cause was venued to the Harrison circuit court, where the cause was tried by jury upon the two paragraphs of the amended complaint, the answers of the appellant in general denial, plea of payment, and two affirmative paragraphs, and the appellee's reply in denial and in avoidance, resulting in a verdict in favor of appellee for $1,166.66 and judgment rendered for that amount. With the general verdict the jury returned answers to certain interrogatories submitted by the court.

One of the specifications of error is the action of the court in overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict. It is the recognized rule that a special finding of facts controls the general verdict only when there is an irreconcilable conflict between the two, and the facts shown by the answers to interrogatories must exclude the possible existence of other controlling facts relating to the same subject which might have been proven under the issues. There is no such conflict presented by the answers before us, and the court properly overruled said motion.

It is claimed that the court erred in refusing to submit to the jury interrogatory No. 68: “Was the money which was checked out by Chester W. Kay his money?” And No. 69: “Was said money money to which the creditors of Chester W. Kay were entitled?” These interrogatories were uncertain, but, in addition, no answer or answers that might have been made to them could have overthrown the general verdict.

The pertinent facts, as established by the evidence, are substantially as follows: About three years before the deposits were made, the appellee, Caroline Kay, lived with her mother, who was in bad health, and her brother, Chester W. Kay, in the town of Greenville, Floyd county, about 12 miles north of New Albany. The mother furnished the son $500 with which to start a store, with the agreement and arrangement that he should take care of appellee. Kay, who was also in bad health, was assisted in the store by the appellee, who not only clerked in the store, but took care of the invalid mother, and finally the invalid brother. After the mother died, Kay's health becoming worse, he desired to sell. On December 7, 1899, appellee, being 19 years of age, married one Perry Gibboney. Since appellee's marriage she has at all times signed her name and adopted and used her husband's name “Mrs. Perry Gibboney” as her signature. Appellee's services in the store and to her brother were worth more than a thousand dollars. A few days after the marriage, some time between December 7th and 13th, Kay sold the store for $2,104.83. At that time, and before he was paid for the store, Kay had more than $1,000 in cash in bank. In pursuance of the agreement made with the mother, and in payment of appellee's services, Kay agreed to pay her $1,000. He gave her about $20 in cash and was to deposit the remainder in appellant bank for appellee. This was agreed to by both Kay and appellee. On the morning of December 13th, Kay and appellee were in the store, and he in her presence gave Philip Smith, a stage driver, $400 in cash, except a pension check for $48 with the instructions to deposit same to the order of Mrs. Perry Gibboney in appellant bank. A deposit slip was on that date made out at the bank showing, “Deposited by Mrs. Perry Gibboney, currency, $333.00; gold, $15.00; silver, $4.00; and check $48.00-total $400.00.” Two days later, Kay, having in appellant bank $622.93, drew a check payable to Mrs. Perry Gibboney for $580.93, and then wrote Mrs. Perry Gibboney's name on the back and sent it by the stage driver, Smith, to the appellant bank to be deposited to Mrs. Gibboney's account. Mrs. Gibboney knew that the deposits were made for her, but in what form, whether cash or checks, she did not know. The bank received the second deposit, made out a deposit slip of that date, “Deposited by Mrs. Perry Gibboney, check, $580.93.” Said check was charged to Kay's account on that date leaving him $42, which remained therein until December 23, 1899, when he deposited $908.25. The appellant issued a deposit or passbook to Mrs. Perry Gibboney, which was carried to Greenville by Smith, the stage driver, and given appellee. The passbook was in the usual form in the name of Mrs. Perry Gibboney, showing the two deposits amounting to $980.93. Appellee took the passbook to her home and kept it in her possession until she went to Crawfordsville to make her home, which was on December 23, 1899, when she left it at her old home with her brother for safe-keeping. She was then 19 years of age, had never done any banking business, and did not know that she needed the book to draw her money. After going away appellee did not see her brother but once, which was when he came for a short visit to her, until the day before he died in June, 1901. A signature was found pasted in the bank's signature book. The signature was on a piece of white paper and was in the handwriting of Kay, but when written, or by whom sent, or when pasted in, or when received by the bank, is not shown. After appellee had left her home on December 23, 1899, for Crawfordsville, said Kay from time to time without her knowledge drew checks and signed the name of Mrs. Perry Gibboney, and these checks were honored by the bank. All these checks were without the authority of appellee, and in fact were forgeries. On January 23, 1900, all of the money having been drawn out by these forged checks, except $64, a counter receipt, which was used by banks at that time to evade the payment of a stamp, and could only be drawn by a customer in person at the counter of the bank, was presented to appellant bank and paid. It was signed by the same forged signature. Kay at the time of making these forgeries had a deposit in his own name of more than $1,000. A widowed sister of Kay discovered him writing his sister's name to one of the checks and expressed surprise and asked him for an explanation, but he gave an evasive reply, stating, “The money is there.” Kay married after appellee left...