Second National Bank v. Gibboney
| Decision Date | 07 April 1909 |
| Docket Number | 6,626 |
| Citation | 87 N.E. 1064,43 Ind.App. 492 |
| Parties | SECOND NATIONAL BANK v. GIBBONEY |
| Court | Indiana Appellate Court |
From Harrison Circuit Court; Christopher W. Cook, Judge.
Action by Caroline Gibboney against the Second National Bank of New Albany. From a judgment for plaintiff, defendant appeals.
Affirmed.
C. L & H. E. Jewett and William Ridley, for appellant.
Stotsenburg & Weathers, for appellee.
Appellee filed her amended complaint, in two paragraphs, in the Clark Circuit Court 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's bank. The cause was venued to the Harrison Circuit Court, where it 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 proved 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 the following interrogatories: 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 twelve 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. Chester W. 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. On December 7, 1899, appellee, who was nineteen years old, married Perry Gibboney. After appellee's marriage she adopted and used her husband's name, and has at all times signed her name "Mrs. Perry Gibboney." Appellee's services in the store and to her brother were worth more than $ 1,000. A few days after the marriage, sometime between December 7 and 13, Kay sold the store for $ 2,104.83. At that time, and before he received the money for the store, Kay had more than $ 1,000 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 13 Kay and appellee were in the store, and he, in her presence, gave Philip Smith, a stage driver, $ 400, with the instruction 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; gold, $ 15; silver, $ 4; check, $ 48; total, $ 400." 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 pass-book to Mrs. Perry Gibboney, which was carried to Greenville by the stage driver and given to appellee. The pass-book was in the usual form, in the name of Mrs. Perry Gibboney, showing the two deposits amounting to $ 980.93. Appellee took the pass-book 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 the pass-book with her brother for safe-keeping. She was then nineteen years of age, had never done any banking business, and did not know that she needed the book to draw her money. After leaving her old home appellee saw her brother but once, when he came for a short visit with her, until the day before his death in June, 1901. A false signature was found pasted in the bank's signature book. The signature was on a piece of white paper, and in the handwriting of Kay, but when written, by whom sent, when pasted in, or when received by the bank is not shown. After appellee 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 except $ 64 having been drawn out by these forged checks, a counter receipt, which was used by banks at that time to evade the payment of a stamp, and could be drawn only 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's discovered him writing appellee's name to a check, 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 home, but spent considerable of his time in search for health in North Carolina and Colorado, and died in June, 1901. His father-in-law, Goss, administered his estate, which consisted of $ 775.24 cash in bank, a stock of implements and hardware, together with other personalty, the amount of the estate not being given. Appellee wrote for her money July 24, 1901, and continued to write for it during August and September of that year, and although Kay's estate was not settled for nearly a year afterwards, the bank took no steps to recover the money it had wrongfully paid out. Appellee made no demand for her money for a year and a half, because she was...
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