Waggoner v. Bank of Bernie

Citation281 S.W. 130
Decision Date02 March 1926
Docket NumberNo. 3936.,3936.
PartiesWAGGONER v. BANK OF BERNIE.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Joel Waggoner against the Bank of Bernie. From an order sustaining defendant's demurrer to the petition, plaintiff appeals. Appeal dismissed.

R. Kip Briney, of Bloomfield, for appellant. Wammack & Welborn, of. Bloomfield, for respondent.

BAILEY, J.

This is an action for damages growing out of defendant's failure to honor a check drawn on it by plaintiff and payable to the First National Bank of Dexter. Plaintiff has appealed from an order sustaining defendant's demurrer to plaintiff's petition. The petition, in so far as material, reads as follows:

"Plaintiff for cause of action further states that the defendant, the Bank of Bernie, was and is authorized by the laws of the state of Missouri to do a general banking business and to receive and pay out money for depositors in said bank, which said deposits are at all times subject to check and are to be paid out again upon the demand of said depositor and by his check without let, hindrance or unnecessary delay.

"Plaintiff further states that on the 30th day of July, 1924, there was on deposit in defendant bank a much larger sum than that of $25, to wit, more than $80, in the name of this plaintiff and his wife, jointly, and which said sum could be legally paid out on the check of either this plaintiff or his wife, or both of them.

"Plaintiff further states that on the said 30th day of July, 1924, he did draw his check, as he had good right to do, in the sum of $25, on the deposit aforesaid in said defendant bank, in the name of Joel Waggoner and wife, and cashed the same at the First National Bank of Dexter, Mo., and that thereafter and in due course of business the said First National Bank of Dexter presented the aforesaid check to defendant bank for payment, and plaintiff avers that, owing to the willful, negligent and malicious acts of defendant, by its officers, agents, and servants, the said check was dishonored, and payment was refused and marked `no account' and returned to the said First National Bank of Dexter. Thereupon and because of the aforesaid dishonor of check, the said First National Bank of Dexter, by its proper officers, agents, and servants, procured a warrant out of the office of C. A. Crane, one of the justices of the peace of Liberty township, Stoddard county, Mo., alleging the passing of a `bad check' by this plaintiff, and, by the proper officers plaintiff was arrested and incarcerated in the county jail of Stoddard county, Mo., for said alleged crime, and restrained of his liberty for a great period of time, and against his will, and to his great humiliation, mortification, and injury to his feeling and reputation, and his reputation amongst his neighbors as a good citizen, and caused him to lose much time of value by said restraint — all because of the willful, malicious, and negligent refusal to honor and pay the aforesaid check.

"Wherefore," etc.

In support of its demurrer respondent first argues the petition would seem to fail to state a cause of action because there is no allegation that the alleged deposit in the Bank of Bernie was made either by plaintiff or his wife as required by section 11779, R. S. Mo. 1919. It is pointed out that, in so far as alleged in the petition, the deposit may have been made by some third person, and that therefore the statute referred to would not apply. This point is highly technical, and to our minds places an entirely too strict and unreasonable a construction on the statute. Likewise respondent's point that the petition fails to allege the action of the First National Bank of Dexter was malicious and without probable cause is not well taken. This is not an action for false imprisonment. We doubt seriously the propriety of such an allegation. On the contrary, it would seem that an allegation that the Dexter bank maliciously had plaintiff arrested would clearly absolve defendant from liability under the doctrine of proximate cause hereinafter discussed.

The briefs and arguments of counsel for both appellant and respondent are devoted almost entirely to the question of what was the proximate cause of plaintiff's arrest and imprisonment. Appellant contends that the act of the defendant Bank of Bernie in dishonoring plaintiff's cheek was the proximate cause, while respondent argues that the act of the Dexter bank in having plaintiff arrested was an independent intervening cause, and, therefore, the proximate cause of plaintiff's alleged damage.

We shall first dispose of some preliminary matters. Respondent's demurrer, of course, admits the truth of all facts well pleaded. It is a well settled general rule that it is the duty of a bank to pay on demand all checks drawn by depositors on their checking accounts to the amount of their respective deposits. So in this case, under the allegations of plaintiff's petition, the fact that he had on deposit sufficient funds to pay the check given the Dexter bank made it defendant's duty to honor that check. O'Grady v. Stotts City Bank, 80 S. W. 696, 106 Mo. App. 366; Allen Grocery Co. v. Bank, 182 S. W. loc. cit. 781, 192 Mo. App. 476; 3 R. C. L. 521; 7 C. J. 628. Under our statute defendant bank would be liable in damages for failure to pay plaintiff's check when it should have been paid to the extent of the actual damages alleged and proven. Section 976, R.. S. Mo. 1919.

The particular question involved in this case, in so far as we have been able to discover, has never been determined by any appellate court of this state, and there is very scant authority from any other court directly on the proposition. The question of proximate cause of an injury is one always more or less beset with difficulty, and of necessity each case must be decided on its own particular facts. There are a great number of decisions in this state defining the term "proximate cause." In Holwerson v. Railway, 57 S. W. 770, 774, 157 Mo. loc. cit. 231 (50 L. R. A. 850), it is said:

"That negligence which sets in motion a train of events that in their natural sequence might, and ought to be expected to, produce an injury, if undisturbed by any independent intervening cause, is the proximate cause of that injury."

The same general rule is announced in other cases. Glenn v. Railway, 150 S. W. 1092, 167 Mo. App. loc. cit. 116; Strayer v. Railroad, 156 S. W. 732, 170 Mo. App. loc. cit. 525; Powell v. Walker, 195 Mo. App. 150, 185 S. W. 532. The cases also hold that:

"To constitute one act the proximate cause of another, it is not essential, according to the great weight of authority, that the supposed effect should have resulted of necessity from the act — in other words have been inevitable. * * * Events of causative influence may intervene between the initial act and the final result, without displacing of the initial act from the position of proximate cause, if the intermediate events themselves were natural sequences of the initial act." Lawrence v. Heidbreder Co., 93 S. W. 897, 119 Mo. App. 316.

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