Ninoff v. Hazel Green State Bank

RoseNBE^ry, J. The question presented here lies within very narrow limits. It is undisputed that the defendant bank is not liable if in making the payment in the manner and under the circumstances it was in the exercise of ordinary care. Wegner v. Second Ward Sav. Bank, 76 Wis. 242, 44 N. W. 1096. The following is a facsimile of the plaintiff’s signature appearing upon the signature card: A facsimile of the signature upon the order upon which the payment was made is as follows: There was evidence by three bankers of experience that they would, in the exercise of ordinary business prudence and caution, have cashed the order when accompanied by the pass-book as the defendant bank did in this case. The argument of the defendant is that the evidence in this respect is conclusive and that there is no evidence of want of care on the part of the defendant. The circumstances under which the book was taken are these: The plaintiff is a Bulgarian and was living in a boarding house in the city of Toledo, where he was working. He kept his pass-book in his inside coat pocket in a cover furnished by the bank. He observed the book and knew that [564] the book was in his possession. Each day he looked m his pocket and saw the cover, apparently undisturbed. About a week after he had last actually seen the book he went to the postoffice to cash a postoffice order and then discovered that the book had been removed from the cover and the cover and its contents returned to his pocket. ITe immediately notified the bank, but before receiving notice the bank had cashed the order already referred to. It appears to us that there is in this case, as there was in the case of Wegner v. Second Ward Sav. Bank, supra, a material difference in the two signatures. Not only was the spelling of the name different, but the whole character of the writing appears to us to be substantially different. The difference is so great it is for the jury to say whether or not the defendant bank should, in the exercise of ordinary care, have required some proof as to the identity of the person making the signature to the order upon which the money was paid. While the testimony of expert witnesses is entitled to full, fair consideration at the hands of the jury, it is, excepting in a very limited class of cases, not bound thereby. Ladwig v. Jefferson Ice Co. 141 Wis. 191, 124 N. W. 407; 22 Corp. Jur. p. 728, § 823; Baber v. Caples, 71 Oreg. 212, 138 Pac. 472. The payment here was not made to an individual presenting the pass-book personally, but was made upon the signature to the order, and it was the duty of the bank to have carefully scrutinized the signature, and in case of discrepancy or circumstances raising doubt it should have acted with caution. Error is assigned because of the admission of certain evidence of communications between the parties subsequent to the payment of the forged order. It appears that in response to a telegram from the plaintiff to the defendant, notifying the defendant of the loss of the book, the defendant telegraphed that it would pay no one but the plaintiff, overlooking the fact that payment had already been made [565] upon the forged order. In view of the fact that the only issue submitted to the jury was that of the negligence of the bank in making the payment, we do not see how evidence received as to communications had some days later' can be prejudicial. The court instructed the jury, to be sure, that they should consider all the testimony in the case. The question submitted by the special verdict related clearly to the exercise of ordinary care in making the payment on April 27th, and we think the jury must be presumed to have considered the evidence relating to that question as of that date, and that the admission of evidence as to subsequent communications, while the evidence is immaterial, did not constitute prejudicial error. By the Court. — Judgment affirmed.