Sessoms v. Union Savings & Trust Company

• Citation: 338 F.2d 752
• Decision Date: 27 November 1964
• Docket Number: No. 15619.,15619.
• Parties: William SESSOMS, Plaintiff-Appellee, v. The UNION SAVINGS & TRUST COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

338 F.2d 752 (1964)

William SESSOMS, Plaintiff-Appellee, v. The UNION SAVINGS & TRUST COMPANY, Defendant-Appellant.

No. 15619.

United States Court of Appeals Sixth Circuit.

November 27, 1964.

Ashley Van Duzer, Cleveland, Ohio, Paul W. Walter, Arthur P. Steinmetz, Cleveland, Ohio, on brief, for appellant.

Charles R. Miller, of Rudd, Ober & Miller, Cleveland, Ohio, for appellee.

Before CECIL and PHILLIPS, Circuit Judges, and TAYLOR, District Judge.

ROBERT L. TAYLOR, District Judge.

This is an appeal from the United States District Court for the Northern District of Ohio from a $20,000.00 judgment as damages for malicious prosecution. The jury rendered a verdict for $30,000.00 which was reduced by the District Judge to $20,000.00.

William Sessoms will be referred to as plaintiff and The Union Savings & Trust Company as defendant.

Plaintiff was a graduate of Grinnell College in Grinnell, Iowa. He entered law school at the University of New Mexico. At the end of the term in 1958 he came from Albuquerque, New Mexico to Utica, New York. He returned to New Mexico in the school year 1958-59 but was forced to drop out for lack of funds. He was returning to Utica, New York, where he had worked the summer before, but stopped at Warren, Ohio where, with the help of the Urban League, he secured work at a funeral home for a short time. Thereafter, he secured work with the Trumbull Memorial Hospital as an orderly.

He had established a bank account with a bank in Utica, New York and continued to do business with that bank when he moved to Warren. He established a relationship with the defendant's bank by cashing several of his own checks which he had drawn on the Utica bank. In establishing his connection at defendant's bank, he had been advised by Parker, the head teller, to deal with one teller to whom he had been introduced and who would be acquainted with him. This he had done and the teller was Waldman. He had received information from the Utica bank that he was overdrawn $8.00 on a $10.00 check, and after work, at about 4:00 p. m., on June 3, 1960, he went to the defendant's bank to make arrangements to cover the $8.00 deficit on that check. When he entered the bank he saw there were several people in line at Mr. Waldman's window and he decided he might as well endorse and cash his payroll check which he had received that day. So before entering the line he endorsed the check and when he reached Waldman he had two items to take up with him, to-wit, the $8.00 coverage and the cashing of the $91.93 payroll check from Trumbull Hospital. He passed his payroll check to Waldman with the request that Waldman cash it and retain $8.00 to cover the deficit in the Utica bank. Waldman then left the window temporarily and talked with Parker as to how to handle the $8.00 transaction. He returned shortly and then excused himself again for about ten minutes. Plaintiff became impatient and, as he testified, decided to pay the $8.00 out of other funds and asked the return of his check.

Just what happened in connection with the $91.93 check is in controversy. Waldman claimed that when the check was presented he placed it in his machine and stamped it. The paper tapes in the machine corroborate Waldman's statement that the following notation: "91.93-19" was made. The 91.93 was the face amount of the check, the 19 was Waldman's teller number and the minus mark between the two sets of figures indicated that the check had been cashed. Had it been deposited, a plus mark would have appeared. There was some confusion when Waldman returned to the cage after talking to Parker. The plaintiff testified that the check was returned to him by Waldman without cashing it and that he paid $8.00 out of his pocket to cover the Utica check. Waldman was not sure what happened to the check. He testified he might have returned it to plaintiff but he was positive, and stated many times in his testimony, that he cashed the check and paid the amount over to plaintiff. Whatever may have occurred at the bank on that day, the evidence is clear that plaintiff got the check back into his possession and either on the same afternoon, which was Friday, or early in the next week, cashed the check at the Carlisle-Allen Department Store.

Later in the day on Friday, a clerk from the proofing department of the defendant bank called Waldman and stated that he was minus a check. The amount of discrepancy in his account for the day was $91.94 and he testified that he seemed to recall that the amount of plaintiff's check was in the neighborhood of that amount. The check cleared through the bank in the middle of the following week and Waldman, who had spent much time hunting for the check, finally found it. The reverse side of the check showed that it had been endorsed by plaintiff and had been deposited in the defendant bank by the Carlisle-Allen store. Waldman testified that on the face of the check appeared the notation referred to above, namely, 91.93-19, indicating that he had cashed it and that somehow it had gotten into the hands of plaintiff and that the latter had cashed it a second time. Plaintiff on the other hand denied that the check had been cashed at the bank and denied that the notation 91.93-19 appeared on the check when it was returned to him.

An investigation was made by several officials of the bank. It was discovered that plaintiff had previously cashed a small check on another bank for which there were no funds. The supposed $8.00 deficit on June 3, 1960 was a second instance of difficulties in plaintiff's accounts.

An official of the bank talked to plaintiff and he denied that he had cashed the check at the bank and stated that he had cashed it early the following week at the store.

The testimony of Mrs. Biggers, who cashed the check for him, was not conclusive, whether the 91.93-19 notation appeared on the face of the check at the time that she had cashed it. The possibility that plaintiff had reached under the window at the bank and had taken the check off the counter during Waldman's absence from his cage was considered by the bank. One official testified that there was room enough between the bottom of the window and the counter to reach in about 12 to 14 inches and had the check been lying on the counter, the space between was sufficient to raise the inference that plaintiff might have been able to reach the check after it had been cashed; although, as we have indicated, plaintiff denies that it was ever cashed and says that Waldman returned it voluntarily to him after the latter's return to the cage.

After some further investigation, Waldman, at the suggestion of the president of the bank, signed an affidavit which was made the basis of the indictment against plaintiff for grand larceny in the state court. Plaintiff was jailed and was held in jail some three weeks before he secured his freedom by making bond. The state proceeding was prosecuted and the jury returned a verdict of not guilty in plaintiff's favor.

Subsequently the present suit for malicious prosecution was brought against the bank for $250,000.00 damages. A trial of several days duration ensued and the jury found for the plaintiff and assessed damages of $30,000.00. This verdict was subsequently reduced by the District Court to $20,000.00. The bank appealed.

In a suit for malicious prosecution, it is generally held, and it seems to be the law in Ohio, that the plaintiff to recover must prove malice and lack of probable cause in the bringing of the criminal suit.

The Court has painstakingly examined not only the printed appendix but the full typewritten record made in the District Court, together with all of the exhibits. The testimony and evidence are so contradictory that the Court is not clear whether there was probable cause on the part of the bank to institute the prosecution against the plaintiff. However, after the hearing and before the charge by the District Judge, the bank made the following special request to the Court:

"Ladies and gentlemen of the jury: the Plaintiff in bringing this action against the Defendant has injected into this case his innocence. If it can be shown that the Plaintiff in an action for malicious prosecution was in fact guilty of the offense charged, although he has been acquitted in the criminal case, it cannot be claimed by the Plaintiff that there was not probable cause for the prosecution. The Plaintiff must fail in this action whether the Defendant acted from malicious motive or not or whether the Defendant knew at the time of the institution of the criminal proceedings against the Plaintiff all of the facts establishing the Plaintiff\'s guilt."

The District Judge declined to give said charge, to which ruling defendant then and there duly excepted. This requested charge would have placed in issue the question whether the plaintiff was, in the action for malicious prosecution, "in fact guilty of the offense charged." It also raised the question of defendant's guilt or innocence of the charge in the criminal case. The District Judge not only declined to give the requested charge, but later in his oral charge stated the following:

"In considering the question of probable cause, to which I have directed your attention, you should not concern yourself with, or consider, whether the Plaintiff was, at the time the complaint was made against him by the Defendant\'s officer, or as a result of the trial, guilty or innocent. That is not an issue in this case. The single question, aside from the matter of maliciousness, for you to consider is whether the Defendant\'s officer Waldman had, at the time of causing the arrest and prosecution of the Plaintiff, reasonable and probable cause for doing so, and this would depend upon Waldman\'s personal knowledge or information communicated to him of facts and circumstances at the time sufficient to excite in the mind of a reasonably cautious and prudent person a reasonable belief that the Plaintiff

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