United States v. First Nat. Bank & Trust Co.

• Court: U.S. District Court — Western District of North Carolina
• Writing for the Court: J. M. Horner, Asheville, N. C., for defendant
• Citation: United States v. First Nat. Bank & Trust Co., 92 F. Supp. 356 (W.D. N.C. 1950)
• Decision Date: 08 September 1950
• Docket Number: Civ. No. 948.
• Parties: UNITED STATES v. FIRST NAT. BANK & TRUST CO. OF ASHEVILLE, N. C.

92 F. Supp. 356

UNITED STATES v. FIRST NAT. BANK & TRUST CO. OF ASHEVILLE, N. C.

Civ. No. 948.

United States District Court W. D. North Carolina, at Asheville.

September 8, 1950.

T. A. Uzzell, Jr., United States District Attorney, Asheville, N. C., and J. B. Craven, Jr., Assistant United States Attorney, Morganton, N. C., for U. S.

J. M. Horner, Asheville, N. C., for defendant.

WARLICK, District Judge.

This action was heard at Asheville in August, during the regular summer session, and is one in which the plaintiff, the United States of America, seeks to recover of the defendant, the First National Bank and Trust Company of Asheville, the sum of $1,320.00, and was heard by the Court without a jury. From the evidence heard and the argument made, the Court, in determining the matter, finds the following facts:

During the war, and on September 18, 1942, Wayne M. Elkins, a native of Asheville, North Carolina, was inducted into the Army of the United States and was assigned Serial Number 14149965.

On November 12, 1932, the said Wayne M. Elkins married Marie Price in Spartanburg, South Carolina, and to said marriage two children were born. Six years later they separated and following the separation the two minor children lived thereafter with their grandmother, Mrs. Mamie Elkins, mother of Wayne M. Elkins, at her home in West Asheville, North Carolina, and that since 1938, the time of the separation, Elkins and his wife, Marie Price Elkins, have remained continuously separate and apart.

For some years prior to his induction into the Army, and following his separation from his wife, Wayne M. Elkins began living with a widow by the name of Daisy Marie Bennett, who was the mother of a daughter born of her marriage to her deceased husband, and continuing and up to his induction into the service, lived with her as man and wife. During these years when they lived together as such husband and wife, they resided in Asheville in a large apartment house, known as Ravenscroft Apartments, and in the Number 2 apartment in said building. They subsequently lived together as husband and wife in Washington, D. C., and Newport News, Virginia, and elsewhere, and for all purposes lived continuously together under that supposed status.

On his induction into the service Wayne M. Elkins made application for an allotment to be payable to his wife and two minor children, and in said allotment papers he falsely and fraudulently designated Daisy Marie Bennett with whom he had been living for some three years or more as his wife, and likewise falsely and fraudulently represented in his application to the government that her name was Daisy Marie Elkins, the allotment as made out by the plaintiff being in the exact form and words as follows: to "Mrs. Daisy Marie Elkins, Ravenscroft Apts. #2, Asheville, N. C.", for the benefit of the wife and two minor children.

Daisy Marie Bennett was not aware of this allotment on his part until the first check was delivered to her by the postal authorities in Asheville.

Subsequently and on the first of February, 1943, a check in the sum of $72.00, payable to Daisy Marie Elkins was delivered to the said Daisy Marie Bennett at the address designated in the allotment and was received by the said Daisy Marie Bennett as such payee. Subsequently additional and further checks were made payable as above and in like and similar amounts, though subsequently increased in amount, were delivered as was the delivery in the first instance, and continued down through the months in such delivery until May 1, 1944, when the last of such checks were delivered. All of which totalled the sum of $1,320.00.

All of these checks were drawn by the authorized representatives of the government of the United States and were delivered by the Post Office Department to the said Daisy Marie Bennett, but under the name of Daisy Marie Elkins, as the allotment had been made out by the soldier, Wayne M. Elkins.

Following the delivery to the said Daisy Marie Bennett of the first check following its issuance on February 1, 1943, she took it to the defendant and tendered it to the defendant for cashing properly identifying herself as Daisy Marie Elkins. That prior to the cashing of said check and this requirement was subsequently followed in all of the checks tendered for cashing, the defendant bank, through its employees required Daisy Marie Bennett, who was then known to its employees and officials as Daisy Marie Elkins, to endorse the said check in her proper signature and in and under the name of the payee in each of said checks, and thereafter when the check had been cashed the defendant bank endorsed each of said checks as follows: "pay to the order of any bank or banker, or trust company, all prior endorsements guaranteed", and thereafter each of said checks on being presented through regular...