Waggoner v. Bank of Bernie

• Decision Date: 02 March 1926
• Citation: 281 S.W. 130,220 Mo.App. 165
• Parties: JOEL WAGGONER, APPELLANT, v. BANK OF BERNIE, RESPONDENT.
• Court: Missouri Court of Appeals

281 S.W. 130

220 Mo.App. 165

JOEL WAGGONER, APPELLANT, v. BANK OF BERNIE, RESPONDENT.

Court of Appeals of Missouri, Springfield

March 2, 1926

Appeal from the Circuit Court of Stoddard County.--Hon. W. S. C. Walker, Judge.

AFFIRMED.

Appeal dismissed.

R. Kip Briney, of Bloomfield, for appellant.

(1) The plaintiff-appellant, Joel Waggoner, had the right to draw his check in the sum of $ 25 on the Bank of Bernie against the $ 86 general deposit account in the name of Joel Waggoner and wife and in form subject to check by either Joel Waggoner or wife, jointly or severally. Sec. 11779, R. S. 1919; 7 Corpus Juris, pages 865, 908. (2) The duty of the Bank of Bernie was to pay on demand all checks drawn by depositors on their general deposit account to the amount of the deposit. 3 Ruling Case Law 521; 7 Corpus Juris 628 No. 305; S. S Allen Grocery Co. v. Bank of Buchanan County, 192 Mo.App. 476, 182 S.W. 781. (3) The dishonor of the plaintiff-appellant's check by the Bank of Bernie was the proximate legal cause of the arrest, confinement in the county jail of Stoddard county, resultant injury and damage. 22 Ruling Case Law, page 111; Secs. 3552 and 3553, R. S 1919; Harrison v. Kansas City Electric Light Co., 195 Mo. 606, 93 S.W. 951; Freeman v. Missouri & Kansas Telephone Co., 160 Mo.App. 271, 142 S.W. 733; Lawrence v. Heidbreder, 119 Mo.App. 316, 93 S.W 897; Aetna Insurance Co v. Boon et al, (U. S. Sup. Ct.) 5 Otto 117-143; Book 24, S.Ct. Rept. 395; Brush v Lindsey, 206 N.Y.S. 304. (4) The Bank of Bernie is liable in damages to the plaintiff-appellant for the dishonoring the plaintiff's check to the extent of the damage alleged and proven by plaintiff-appellant. Sec. 976, R. S. 1919.

Wammack & Welborn, of Bloomfield, for respondent.

The dishonor of plaintiff's check by defendant was not the proximate cause of the plaintiff's arrest on the charge of passing "a bad check" by the First National Bank of Dexter. Hartford v. Bank, 150 P. 356; Beardon v. Bank of Italy,, 207 P. 270; Hudson v. Railway, 101 Mo. 34; Powell v. Electrical Co., 195 Mo.App. 158; Glenn v. Street Railway Co., 167 Mo.App. 116; Cody v. Lusk, 187 Mo.App. 342; Strayer v. Railway, 170 Mo.App. 524; Driskell v. Insurance Co., 117 Mo.App. 370; Holwerson v. Railway, 157 Mo. 231; Burbaker v. Electric Light Co., 130 Mo.App. 448.

BAILEY, J. Cox, P. J., and Bradley, J., concurs.

OPINION

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 they cashed the same at the First National Bank of Dexter, Missouri, 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 wilful, 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 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, Missouri, 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, Missouri, 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 to a good citizen, and caused him to lose much time of value by said restraint; all because of the wilful, 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 11,779, Revised Statutes 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 check 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 account 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, 106 Mo.App. 366, 80 S.W. 696; Allen Grocery Co. v. Bank, 192 Mo.App. 476, 182 S.W. 777; 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. [Sec. 976, R. S. 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, 157 Mo. 216, 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, 167 Mo.App. 109, 150 S.W. 1092; Strayer v. Railroad, 170 Mo.App. 514, 156 S.W. 732; Powell v. Walker, 185 S.W. 532, 195 Mo.App. 150.]

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 inevitable"--"Events of causative influence may intervene between the initial act and the final result, without the 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., 119 Mo.App. 316, 93 S.W. 897.]

Similar doctrine is announced in the following cases: [Sneed v. Hardware Co., 242 S.W. 696; Davis v. Hospital, 196 S.W. 104; Washburn v. Light Co., 202 Mo.App. 102, 214 S.W. 410; See, also, 223 S.W. 725.]

It is also a well-established rule of law that a defendant may be held responsible even if the casualty was not the result of his sole negligence, but by his...