Cereguti v. Peoples Bank & Savings Co.

This case is submitted to me upon a motion by defendant for a judgment in its favor notwithstanding the verdict of the jury in favor of the plaintiff. It was contended in argument by *160counsel for the defendant company that the evidence showed clearly that the defendant company in paying out the money of the plaintiff on deposit, by mistake to another person, acted with reasonable care under all the circumstances and that the defendant company is therefore not liable and is entitled to a judgment in its favor. At the trial I submitted to the jury the question as to the exercise of reasonable care by the defendant company in the payment of the money. The jury returned a verdict for the plaintiff, and in an answer to special interrogatories found that the defendant had not exercised reasonable care.

The question is difficult. "When I first learned' the facts in the ease, I was under the impression that the defendant company had acted with reasonable care, but after hearing all the evidence and carefully considering the case, I was of the opinion that the question of the exercise of reasonable care by the defendant was a proper question to submit to the jury. Upon further reflection, while I am still somewhat uncertain in mind about it, I am, upon the whole, still inclined to the opinion that it was a proper question for the jury, and the jury having found for the plaintiff upon the question, I do not feel warranted in entering a judgment for the defendant notwithstanding the verdict. I think it a question about which reasonable minds might differ, but that probably the finding of the jury is the more, reasonable view, and the view more likely to be taken by impartial minds. • This is the third trial of the case. In the second trial before my colleague, Judge Hunt, and a jury, the issue was presented to the jury as in this case. It is quite certain that the question will have to be finally determined by the higher courts and I am of opinion that so far as this question is concerned, it should proceed to such determination without further jury trial.

The motion for a 'judgment notwithstanding the verdict will therefore be overruled.

There is pending another motion for a new trial; which motion has not been argued to me, which I am informed by counsel for the defendant, it is his desire to present. That motion will be heard.