Union Nat. Bank of Little Rock v. Daneshvar, CA
| Citation | 803 S.W.2d 567,33 Ark.App. 171 |
| Decision Date | 20 February 1991 |
| Docket Number | No. CA,CA |
| Parties | UNION NATIONAL BANK OF LITTLE ROCK, Appellant, v. Mary DANESHVAR, Appellee. 90-185. |
| Court | Arkansas Court of Appeals |
Michael McCrary, Hot Springs, for appellant.
Stephen Cuffman, Little Rock, for appellee.
Appellee, Mary Daneshvar, brought an action against the appellant, Union National Bank, to recover funds paid from her account as a result of two forged checks totalling $12,000. Judgment was for the appellee in the full amount of damages requested, plus prejudgment interest and attorneys' fees.
Appellant asserts three points of error on appeal: (1) the trial court erred in refusing to grant appellant's motion for a directed verdict, (2) the trial court erred in refusing to give a jury instruction that if appellee had received the benefit of the funds, the bank's liability should be reduced accordingly, and (3) the trial court erred in refusing to instruct the jury on comparative fault. Because we agree with the appellant that there was sufficient evidence to justify the submission of the question of appellee's negligence to the jury, we reverse and remand. We also address the other issues to the extent that they are likely to arise on retrial.
Appellee opened a checking account with the appellant bank in March 1984. She was the only person authorized to draw checks on the account. Appellee testified that on February 24, 1987, she discovered two checks were missing from her checkbook. She reported the missing checks to the bank, and a few days later she went to the bank to inquire about her balance. At that time, she learned the missing checks had been paid and the balance of her account was $12,000 less than it should have been. She was advised by the branch manager that she needed to sign an affidavit so the bank could pursue the matter. At that time she told the manager she suspected her husband had taken the money, but that she wanted to think about it further before signing the affidavit because her husband had threatened her in the past. Subsequently, she questioned her husband, but he denied having taken the money from her account.
On March 3, 1987, appellee's husband gave her a letter from Superior Federal stating that the balance in that account was $10,541.48. This account at Superior Federal was a joint account to which both parties had access. Appellee testified to having written several checks on this account in the past. Appellee's husband told her he borrowed the money that was in this account from a friend in order to establish proof of funding which she needed for citizenship purposes. The day after she received the letter she went to Superior Federal to get copies of the letter and found out all but $351.48 had been withdrawn. Appellee learned later that the Superior account reflected that the entire proceeds from the forged checks had been deposited in early February into that account, though they were subsequently withdrawn.
Later in March or April, appellee's husband admitted taking the money from her Union account. She signed the affidavit required by the bank on April 9, 1987, five to six weeks after she discovered the missing checks and the $12,000 reduction in her account. The affidavit was signed over a month after she got the letter from Superior Federal stating their joint account had a balance of approximately $10,500.
On April 13, 1987, appellee filed for divorce. The divorce decree, rendered August 3, 1987, states that the parties entered into a property settlement agreement and recites the items divided between the parties. The decree is silent as to the proceeds of the forged checks. As part of the property settlement agreement, appellee signed an affidavit certifying that she had in her possession all items...
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Parker v. Holder
...determine. Ms. Holder also argues the instruction was abstract as defined in the Harkrider case, and Union Nat. Bank of Little Rock v. Daneshvar, 33 Ark.App. 171, 803 S.W.2d 567 (1991), which cites Newman v. Crawford Constr. Co., 303 Ark. 641, 799 S.W.2d 531 (1990). Finally she argues that ......
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