Mouse v. Central Sav. & Tr. Co. , 6 Ohio Law. Abs. 715 ( 1928 )

LElVfERT, J.

We believe the law to be well settled that a bank which wrongfully refuses payment of a check is not liable in damages for the arrest of the drawer, procured by the drawee or some other person without the knowledge of the bank on a wrongful charge of drawing or uttering the cheek with intent to defraud — such arrest not being a proximate result of the nonpayment of the check.

Sec. 10132 of the General Code provides that 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 damages by reason of such nonpayment; and in such event the liability shall not exceed the amount of damages so proved.

So, by reason of this statute, it is incumbent upon the depositor to show an adequate account, proper presentation of the cheek, the refusal of the bank to honor it, and that such refusal arose not by mistake or error and that there was malice on the part of the bank. The depositor in his petition alleges all of the facts necessary to bring the case within the purview of this statute except the allegation of malice, which allegation, however, he makes in his reply-

The evidence in this case clearly shows that the failure of the bank to pay the two checks of the depositor arose by reason of an error, which error was the opening of the depositor’s account under the name of G. C. Meuse, instead of G. C. Mouse.

The language of G. C. Sec. 10132 is so clear and explicit that it leaves no room for judicial interpretation. Under the ordinary and usual meaning of the words used, it is plain that a depositor in a bank, whose check has been wrongfully refused payment, where malice is absent, cannot recover more than nominal damages, unless he both allege and prove special damages.

We therefore find and hold that the motion to direct a verdict in this case was properly sustained. Therefore the judgment of the court below will be affirmed.

(Houck, P. J., and Sullivan, J., concur.)