Mousev.Sav. Tr. Co.

Supreme Court of OhioMay 22, 1929
120 Ohio St. 599 (Ohio 1929)
120 Ohio St. 599167 N.E. 868

No. 21446

Decided May 22, 1929.

Banks and banking — Liability to depositor imprisoned for issuing check without sufficient funds — Mistaken nonpayment proximate cause of arrest upon affidavit of payee — Bank not absolved by independent intervening cause — Depositor's mistaken arrest and imprisonment, without malice, constitutes actual damage — Section 710-132, General Code.

1. The mere fact that the intervention of a responsible human being can be traced between the defendant's alleged wrongful act and the injury complained of does not absolve him upon the ground of lack of proximate cause if the injury ensued in the ordinary course of events, and if the intervening cause was set in motion by the defendant.

2. Where the record shows that a bank, through mistake or error and though without malice, has refused payment of a check which should have been paid, and that the payee of the check, after consulting with the bank and making an investigation into the circumstances and after having been assured that the depositor has no account, has thereafter sworn out a warrant for the arrest of the depositor, under which warrant such depositor has been confined in jail, it is reversible error for the trial court to direct a verdict for the defendant bank upon the ground that as a matter of law such nonpayment of the check is not the proximate cause of the arrest of the depositor.

3. Under Section 710-132, General Code, the arrest and imprisonment of the depositor because of the nonpayment, through mistake or error and though without malice, of a check which should have been paid, constitutes an actual damage.

ERROR to the Court of Appeals of Summit county.

This case arises as an error proceeding to a judgment of the Court of Appeals of Summit county, which affirmed a judgment of the court of common pleas of Summit county rendered upon a verdict in favor of the defendant, directed by the court at the close of plaintiff's case.

The petition alleged that the defendant bank refused payment of certain checks at a time when the depositor had ample funds to pay such checks, and that a warrant for the arrest of the depositor was thereafter sworn out, under which warrant the depositor was confined in jail. The petition further prayed for damages.

The answer of the defendant admitted that the defendant is a banking corporation engaged in the general banking business in the city of Akron, and admitted the nonpayment of the checks and the fact that the depositor at the time had an account with the bank. The answer further alleged that the defendant had nothing to do with the alleged arrest and imprisonment of the plaintiff, had no wish to injure or humiliate him, and alleged contributory negligence on the part of the plaintiff.

The reply alleged that the bank consulted with the person who filed the affidavit, and that the bank acted without care or caution in the matter, and denied that the plaintiff was guilty of contributory negligence.

At the close of plaintiff's testimony, the defendant moved that the jury be directed to return a verdict in favor of the defendant, and the court made the following statement:

"There is no evidence of malice, and under this decision, by showing the mere arrest and the refusal to pay the check, and the arrest following, it is not the proximate cause. That the court decides. They say it is not the proximate cause. No special damages are alleged, so none can be proven. It follows that the motion will be sustained and exceptions will be given."

The jury thereupon returned a verdict in favor of the defendant under the instruction of the court, upon which verdict judgment was entered, which was affirmed, as above set forth, by the Court of Appeals of Summit county.

The case comes into this court upon allowance of motion to certify the record.

Mr. Carl M. Myers, for plaintiff in error.

Messrs. Beery, Sheppard, Meisner Pool, for defendant in error.


This record presents two questions of legal significance. The first is whether, in case of the arrest of the drawer of a check, upon a warrant issued upon an affidavit sworn out by the payee, after notice given by the bank to the payee that the check is dishonored because there is no account in the name of such depositor with the bank, and after such statement is repeated to the payee by the bank upon an investigation by the bank and the payee, such statement being made by the bank's employee through mistake or error, but without malice, the arrest of the depositor and his consequent imprisonment is as a matter of law not the proximate result of the act of the bank.

The second question is whether such an arrest and imprisonment of itself alone constitutes an actual damage.

In order to discuss these questions, it will be necessary to consider the facts as shown by the record.

The plaintiff gave some evidence in favor of the allegations of his petition, and indeed the defendant concedes the following facts:

The depositor opened his account at the bank on April 9, 1924, signing his name on the identification card in a form which was read "Meuse." The account was hence opened in the name of "G.C. Meuse," and so written in the deposit book received by the depositor at the time. Two later deposits were made by Mouse, prior to his arrest, and prior to the return of the two checks in question. These two checks were signed "G.C. Mouse." Prior to issuing these checks, Mouse signed a card authorizing his wife to draw checks upon his account, in which the name of the account is called "Mr. and Mrs. G.C. Meuse," but the signature of Mouse was written "G.C. Mouse," the wife's signature was written "E. Mouse," and the wife's name also appeared "Mrs. G.C. Mouse." Hence the bank records contained three entries where the name was written "Mouse," and this upon a card headed Name of Account: Mr. and Mrs. G.C. Meuse."

On June 13, and again on June 17, 1924, Mouse gave his wife checks which she cashed with Elias Cory. It is conceded that at all times Mouse had sufficient money in the bank to meet the checks so issued. The bank charged Cory's account with the first check, and notified Cory that the check was not good when he presented the second check for credit, stating that the account was closed. Cory went to the bank and personally interviewed the bookkeeper. The two looked for the signature on the books, but failed to locate the correct name. Several days later, Cory went to the police court and filed an affidavit, charging Mouse with issuing checks without funds. A warrant was issued upon this affidavit, and Mouse was arrested and thrown into jail until released upon bond. The bank, upon learning of the arrest, and discovering the facts respecting Mouse's account made immediate payment of the checks, and procured Mouse's release from prison by having an officer of the bank sign his bond for that purpose. The charge was dismissed.

Since the bank was in possession of a card signed "G. Mouse," and "E. Mouse," as well as the one which was read "G.C. Meuse," there was some evidence of negligence upon the part of the bank; but the court directed a verdict upon the ground that there was no evidence that the act of the bank caused the arrest of the plaintiff.

The majority of the court disagree with this conclusion. There was evidence in the record tending to show, in our opinion, that the act of the bank was the causative factor in the entire transaction. The very gist of the prosecution was the nonpayment of the check. If at any time prior to the institution of the prosecution the bank had notified Cory of its mistake, concededly Cory would not have sworn out the affidavit and caused the warrant to issue. This is not the case in which the negligence of the bank was a mere condition upon which the independent act of Cory intervened to produce the result. The case is differentiated from the Hartford case, 170 Cal. 538, 150 P. 356, L.R.A., 1916A, 1220, which we discuss below, by the fact that Cory deliberately consulted with the bank, looked over its books with the bookkeeper, and made a searching investigation before he instituted the prosecution. Hence evidence was presented tending to show that the act of Cory was under the control of the bank, in the sense that if its bookkeeper had carefully compared the entire records, and had observed the name "Mouse" plainly written in at least three places on the records of the bank, it would have been evident that Mouse had an account with the depositary, and the arrest would have been stayed.

This case is entirely dissimilar from the familiar case in which the delay in the delivery of goods is caused by a tort-feasor, and while the goods so delayed are in transit, or on the water, they are injured by some tempest. In such a case, if there had been no delay, the tempest would have occurred exactly as it did occur, and hence the tempest is an independent intervening cause. In this case, however, if the bank had at any time notified Cory of its mistake, he would not have sworn out the affidavit. There would have been no arrest if the bank had not reported that the two checks were not good, and persisted in that report upon consultation with Cory. Hence there is some evidence to the effect that the connection of the bank with the transaction is more than that of merely being a remote factor in the process by which Mouse was wrongfully arrested and confined in the county jail. Reasonable minds might conclude as a matter of fact from this record that the bank's act, even though entirely without malice, stimulated and instigated Cory to procure the arrest. This is particularly true under our Code, Section 710-176 of which provides as follows:

"Any person, who, with intent to defraud, shall make or draw or utter or deliver any check, draft or order for the payment of money upon any bank or other depository, who, at the time thereof, has insufficient funds or credit with such bank or depositary, shall be guilty of a felony, and upon conviction thereof shall be fined * * * or imprisoned in the Ohio state penitentiary * * * .

"As against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud, and knowledge of insufficient funds in, or credit with, such bank or other depository."

This section has been construed and strictly applied in the case of State v. Lowenstein, 109 Ohio St. 393, 142 N.E. 897, 35 A. L. R., 361.

In view of these provisions, it was entirely natural and probable that the act of the bank would result in the arrest of Mouse. By the exercise of reasonable diligence, the bank could have foreseen that this exact consequence would occur, for the issuance of a check upon a bank without funds or credit to meet it is a public offense, which, notoriously, frequently results in the arrest and imprisonment of the drawer of the check. As said in Siminoff v. Jas. H. Goodman Co. Bank, 18 Cal.App. 5, 121 P. 939, when the bank returned the check to the payee with the indorsement "No funds," the act at once suggested a possible violation of a penal statute punishable as a felony.

An excellent discussion of the question whether an act, although in fact negligent, would have resulted in the injuries complained of, had it not been for the intervention of an independent cause, is to be found in 22 Ruling Case Law, 132 to 135. We quote one paragraph of this authority:

"It is universally agreed that the mere fact that the intervention of a responsible human being can be traced between the defendant's wrongful act and the injury complained of will not absolve him. On the contrary the general rule is that whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary course of events, though such consequences are immediately and directly brought about by an intervening cause, if such intervening cause was set in motion by the original wrongdoer, or was in reality only a condition on or through which the negligent act operated to produce the injurious results. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. The question always is: Was there any unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise."

It is certainly the general rule, as stated in the same authority, that "a person's liability for his acts depends upon their tendency under the circumstances known to him. * * * Fault on the part of the defendant is to be found in action or non-action accompanied by knowledge, actual or implied, of the probable results of his conduct." 20 Ruling Case Law, 11.

As stated in Pollock on Torts (7th Ed.), 34:

"For, although we do not care whether the man intended the particular consequences or not, we have in mind such consequences as he might have intended, or, without exactly intending them, contemplated as possible. * * * This is the limit introduced by such terms as 'natural' — or more fully 'natural and probable' — consequences."

Thus in the case of Guille v. Swan, 19 Johns. (N.Y.), 381, 10 Am. Dec., 234, the descent of a balloonist, which attracted a crowd of people into the garden of the plaintiff, which broke down the vegetables and flowers, was held to be the proximate cause for all that was done by the crowd. The court said:

"If his descent, under such circumstances, would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation, all this he ought to have foreseen, and must be responsible for."

It is the general rule "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 the initial act from the position of proximate cause, if the intermediate events themselves were natural sequences of the initial act." Lawrence v. Heidbreder Ice Co., 119 Mo. App., 316, 93 S.W. 897.

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 was caused by his negligence concurring with that of another, or any other independent intervening cause. Thompson v. City of Slater, 197 Mo. App., 247, 193 S.W. 971; Brennan v. City of St. Louis, 92 Mo., 482, 2 S.W. 481; Thompson v. Louisville Nashville Rd. Co., 91 Ala. 496, 8 So. 406, 11 L.R.A., 146; Farnon v. Silver King Coalition Mines Co., 50 Utah 295, 167 P. 675, 9 A. L. R., 248.

The defendant in error cites certain cases, notably decisions from California, counter to this holding. In the case of Hartford v. All Night and Day Bank, 170 Cal. 538, 150 P. 356, L.R.A., 1916A, 1220, however, at the time the plaintiff drew his check he had on deposit in the savings department of the bank the sum of $25. It was a rule of the bank that it was not bound to make payment upon any savings account unless the passbook was presented. The plaintiff drew an ordinary commercial check in the sum of $10 in favor of himself, which was returned with the notice, "Has no account." The record showed that the bank's attention was never called to the fact that an ordinary commercial check had been drawn, which the plaintiff expected would be paid out of his savings account. The principal discussion of the case centers around this fact, the court questioning whether under the circumstances it can be said that the bank was negligent at all. This holding was later followed in Bearden v. Bank of Italy, 57 Cal.App. 377, 207 P. 270, a case which evidently involved the refusal of the bank to pay a check upon a commercial account. In this case it is true that the payee notified the bank that he would cause the arrest of the drawer, thus calling to its attention the probable consequences of its refusal to pay the check.

In the case of Waggoner v. Bank of Bernie, 220 Mo. App., 165, 281 S.W. 130, the court states that the natural consequence to be expected from refusal of payment of the check was that the payee would immediately notify the plaintiff of its dishonor and demand payment. The court comments that arrests are not usually made without investigation, and then follows the doctrine of the Hartford case.

It does not appear in most of these cases what are the statutes of the particular jurisdictions, nor that they are identical with our own. Since Section 710-176, above quoted, specifically makes the refusal of the check prima facie evidence of intent to defraud, which is an essential element in the crime defined in the preceding paragraph, the bank has notice that its refusal to pay the check is apt immediately to suggest criminal prosecution. The mere fact that an intervening party actually swears out the affidavit, upon which the warrant of arrest is founded, does not as a matter of law break the chain of causation. Reasonable minds might conclude, under such circumstances, that the swearing out of the affidavit is predicated upon, stimulated and instigated, and thus actually caused, by, the failure of the bank to pay the check. This is peculiarly true in the instant case, where the bank, upon investigation in good faith by the payee, persisted in the statement that the checks were not good.

The question next arises as to whether, conceding the arrest, and the fact that there is evidence tending to show that the arrest is caused by the act of the bank, the plaintiff has failed to make out a cause of action, because he has alleged no other damage than the arrest, confinement in jail, and the humiliation consequent thereon.

The trial court apparently had in mind Section 710-132, General Code, when it made the ruling that "no special damages are alleged, so none can be proven." This section reads as follows:

"No bank shall be liable to a depositor because of the nonpayment through mistake or error and without malice of a check which should have been paid unless the depositor shall allege and prove actual damage by reason of such non-payment and in such event the liability shall not exceed the amount of damage so proved."

What is an actual damage? A careful reading of the statute leads us to conclude that, when the Legislature enacted this section, it did not intend to deprive a depositor of the right of action in case of the nonpayment of his check through error or mistake, and without malice, but intended merely to eliminate speculative and punitive damages in the absence of malice on the part of the depositary. "Actual damages" is a term synonymous with compensatory damages, and covers all loss recoverable as matter of right. Gatzow v. Buening, 106 Wis. 1, 81 N.W. 1003, 49 L.R.A., 475, 80 Am. St. Rep., 1. In the states where punitive damages are recoverable, the phrase "actual damages" is used in contradistinction to vindictive damages. Ellis v. Brockton Pub. Co., 198 Mass. 538, 84 N.E. 1018, 126 Am. St. Rep., 454, 15 Ann. Cas., 83. Corpus Juris defines the word "actual" as "real, present, visible, existent; existing at the time; existing in fact."

What could be a more real and existing damage to a person of good reputation than confinement in the county jail upon a charge concededly erroneous? Such damage is actual, so real, present, and existing, in fact, that the unlawful restraint by one person of the physical liberty of another gives rise to a cause of action all its own, namely, that of false arrest. We have little sympathy with the proposition that a genuine damage would be proved here if the bank's act had resulted in a damage to the plaintiff in his trade or occupation, but that the dishonor thrust upon him by this act of negligence has no existence in fact.

Upon both features of the case we think that the judgment of the courts below was erroneous, and the judgment will be reversed, and the case remanded to the court of common pleas for further proceedings according to law.

Judgment reversed and cause remanded.

ROBINSON, MATTHIAS and DAY, JJ., concur.