Tarwater v. Donley County State Bank

• Decision Date: 04 November 1925
• Docket Number: (No. 2540.)
• Citation: 277 S.W. 176
• Parties: TARWATER et al. v. DONLEY COUNTY STATE BANK et al.
• Court: Texas Court of Appeals

277 S.W. 176

TARWATER et al. v. DONLEY COUNTY STATE BANK et al.

(No. 2540.)

Court of Civil Appeals of Texas. Amarillo.

November 4, 1925.

Appeal from District Court, Donley County; R. L. Templeton, Judge.

Action by Mrs. Pearl W. Tarwater and husband against the Donley County State Bank and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Turner, Dooley & Gibson, of Amarillo, and J. R. Porter, of Clarendon, for appellants.

Cole & Simpson, of Clarendon, and Lumpkin & Trulove, of Amarillo, for appellees.

HALL, C. J.

This suit was instituted by appellants, Mrs. Pearl Tarwater and her husband, against the appellees Donley County State Bank, Lillie Wofford, and her minor daughter, Jack Wofford, to recover the sum alleged to be due on a time certificate of deposit dated September 17, 1920, issued by the defendant bank in favor of J. W. Wofford in the sum of $8,000, due one year after date, with interest at 6 per cent. per annum, and to recover the further sum of $490, due upon an open checking account maintained by said J. W. Wofford in said bank, and also to recover a United States Liberty bond or its value, which it is alleged J. W. Wofford had deposited in the bank.

It is alleged, in substance, that, subsequent to the issuance of the time certificate and the deposit of said funds and Liberty bond with the defendant bank, J. W. Wofford had died intestate; that there had been no administration upon his estate, and that there was no necessity for administration; that J. W. Wofford's wife died in 1913, and the only children born to him were the plaintiff Mrs. Tarwater and one son, Jack Wofford, the husband of Lillie Wofford and the father of the minor daughter, Jack Wofford: that Jack Wofford, son of said J. W. Wofford, died intestate on or about December 25, 1921; that, at the time Jack Wofford died, he was indebted to his father, J. W. Wofford, or proportionally to the plaintiff Mrs. Tarwater, as a legal heir of J. W. Wofford, in the sum of about $25,000, which indebtedness exceeded the sums due and owing by the defendant bank to the heirs of J. W. Wofford; that the indebtedness of Jack Wofford, now deceased, being for money borrowed and received from his father, J. W. Wofford, during the latter's lifetime, had never been repaid to the said J. W. Wofford prior to the time of his death, and for such reason, plaintiffs asserted that any interest which Lillie Wofford and her minor daughter, as heirs of Jack Wofford, might have had in the amount due by said bank should be awarded to plaintiff, and should be adjudged as an offset and credit on the indebtedness which Jack Wofford owed his father, J. W. Wofford; that plaintiff had never assigned her interest in the funds sued for; that J. W. Wofford was the owner of the certificate, was entitled to the deposit and to the Liberty bond at the time of his death; that said property had not been paid or delivered to any one legally entitled to receive the same at the time of J. W. Wofford's death, and no part of it had ever been received by plaintiff in settlement of her inherited share in her father's estate.

It is alleged that Jack Wofford, after the death of his father, J. W. Wofford, forged his father's name upon the time certificate of deposit, and upon such forged indorsement received the full amount due thereon; that he forged his father's name to a check on said bank for $490, which he also received; that said bank knew, or should have known by the exercise of reasonable diligence, that the signatures of J. W. Wofford were forgeries; and that it had wrongfully paid out the funds due from said bank to J. W. Wofford to Jack Wofford.

The plaintiffs prayed for judgment against the defendants, that Pearl Tarwater be adjudged solely entitled to have said funds and property, with interest thereon, and, in the alternative, that Mrs. Tarwater have judgment for her one-half interest in and to said property.

The appellees answered, alleging: First, that J. W. Wofford was not dead. Second, that his name, indorsed upon the time certificate, and signed to the check, were his true and genuine signatures; that, in the event it should be proven that J. W. Wofford was dead, and that he had not signed said certificate, then that Jack Wofford, as his son, was nevertheless entitled to the proceeds thereof, because J. W. Wofford, at the time said certificate was issued to him, had required the bank to write into the face of the certificate these words: "In case of the death of J. W. Wofford, this certificate is payable to Jack Wofford." Further, that Jack Wofford had paid his father all that he owed him, that the estate of Jack Wofford, deceased, was a necessary party to the suit, and that plaintiffs were not entitled to prosecute the suit without showing that the money received by Jack Wofford on the check and certificate were intended by his father as advances and not as a gift.

The court submitted issue No. 1 to the jury as follows:

"Is J. W. Wofford dead? Your answer should be either `Yes' or `No.' If your answer to question No. 1 is `No,' then you need not answer any other question; but if your answer to said question is `Yes,' then answer question No. 2."

The jury answered the first interrogatory "No." None of the other issues were answered. The court then rendered judgment that plaintiffs take nothing by their suit against any of the defendants.

Preliminary to the consideration of the appellant's propositions, it is necessary to dispose of the appellees' contention that the estate of Jack Wofford and his legal representatives were necessary parties to the suit, and that plaintiffs would be required to exhaust their remedy against said estate before proceeding against the bank. We cannot assent to this proposition. If J. W. Wofford was dead, and the property and funds sued for were paid to and delivered by the bank to Jack Wofford upon the forged signatures of J. W. Wofford, the bank would be liable to Mrs. Tarwater for her interest in her father's estate, if in fact he was dead at that time, as for conversion, and it was not necessary for her to make the legal representatives of the estate of Jack Wofford, deceased, parties to the suit. Banco Minero v. Ross & Masterson (Tex. Civ. App.) 138 S. W. 224.

The appellants' contention in the court below, and in this court, is that Jack Wofford murdered his father, J. W. Wofford, and thereafter, by forging the signature of his father to the certificate and check, obtained the funds and property sued for.

Under the first proposition, it is contended that, where the record contains evidence of circumstances fairly raising the inference that Jack Wofford murdered his father, it was not competent to rebut such inference by calling witnesses who testified that they did not think Jack was a man who would kill his own father and forge his name to a time certificate. Without discussing the weight of the evidence, we will say, in connection with our consideration of this and subsequent propositions to be discussed, that there was evidence which tended to show that Jack Wofford was indebted to his father in a considerable sum of money, and that the two had a quarrel or misunderstanding immediately preceding the time when Jack was suspected of having murdered his father, and that Jack was in straightened financial circumstances and then in need of funds. Other facts were introduced which appellant insists supported her contention that Jack Wofford had murdered his father. To counteract the inference to be drawn from such facts, the defendants below were permitted to ask several witnesses, in effect, whether they knew anything that would lead them to believe that Jack Wofford was a man who would murder his own father and then forge his name to a certificate of deposit, and one of the witnesses was further asked whether he would associate Jack Wofford, as known to the witness, with being a murderer and forger, to all of which evidence the appellant objected that the testimony was immaterial and irrelevant, that it was calling for the opinion and conclusion of the witnesses. The court overruled the objections, and each of the witnesses answered said questions in the negative. We think the admission of this testimony is error, and that it influenced the jury to some extent in their finding that J. W. Wofford was not dead. When evidence of good character and disposition is admissible, such evidence must be confined to proof of the general reputation of the party assailed. The individual opinion of a witness as to the character of the subject of the injury, and what he would or would not do, is not admissible. Negociacion Agricola Y Ganadera De San Enrigue v. Love (Tex. Civ. App.) 220 S. W. 224; Brownlee v. State, 13 Tex. App. 255; Hunter v. State, 54 Tex. Cr. R. 224, 114 S. W. 124, 130 Am. St. Rep. 887; Mutual Life Ins. Co. of New York v. Hayward (Tex. Civ. App.) 27 S. W. 36.

Over the objections of appellant, the appellees were permitted to introduce in evidence a series of letters purporting to have been written to the bank by Jack Wofford during the month of February, 1921, and another dated June 26th, presumably of the same year, in which the writer stated, in substance, that he was expecting and waiting for a letter from his father, who would help him pay his indebtedness to the bank, and further stating that he had heard from his father, who was willing to let him have the certificate for $8,000 to be used for that purpose, and, finally, in the letter of February 22d, inclosing the certificate and a check purporting to have been signed by his father, payable to Jack for the $490, on deposit. He states in the letter of June 26th that his father —

"is stuck on Western Mexico where it borders California and Arizona. I have heard from him once since I sold my place. He was at Loma Vista, and was going from there to Needles. He might help you some if he has not tied up in something somewhere."

The...