Union Bank of Georgetown v. Forrest

(nem. con.) refused to give the instruction.

Mr. Jones then moved the court to instruct the jury, “that if they find from the evidence that according to general bank usage, no other or higher kind or degree of care was required of tellers or other bank officers, in the tiansaction of the bank business, than what *564a prudent, cautious, and careful man would exert in his own affairs, and in the like case; and that the plaintiffs themselves had, for several years before the claim was set up by them in this case, tolerated and accepted of the said Forrest without complaint, a discharge of his duty as teller, with no other or higher kind or degree of care than as aforesaid; then it is competent for the .iury to presume that the plaintiffs dispensed the said Forrest and his sureties from any other or higher kind and degree of care than as aforesaid; and in such case the plaintiffs are not entitled to recover in this action, any loss, as for the want of care of the said Forrest; unless they prove to the satisfaction of the jury that he failed in the instance complained of, in such reasonable and proper care as a prudent, cautious, and careful man would have exerted, or should be presumed to exert, in the like case.”

•But THE COURT (nem. con.) refused the ■instruction, because the evidence, as they thought, did not warrant the jury in inferring such usage, or such toleration; and because -such usage, if proved in regard to banks who • have not taken security against damage sustained by “want of care” of the teller, would not control the express stipulation to indemnify a bank for such damage, and because the instruction prayed would throw the burden of proof of negligence upon the plaintiffs, the bank, after they had shown that he had received money which he had not accounted for.

Verdict for the defendants; motion for new trial overruled; judgment for the defendants.