Hair v. Bank , 103 S.C. 343 ( 1916 )

March 2, 1916. The opinion of the Court was delivered by This was an action by plaintiff against the defendant to recover the sum of $2,476. Plaintiff alleged that during the years 1909 and 1910 she had on deposit with the defendant bank a sum in excess of $4,000; that during these years the defendant charged against her account $2,476 on a number of checks purporting to be signed by her, but which checks were in truth and fact forgeries; that she made demand upon the bank for repayment, but her demand had been refused. The defendant denied that the checks were forged, but alleged that if the same had been forged the plaintiff had been negligent in not giving prompt or reasonably prompt notice to the bank when she either knew, or should have known, that the forgeries had been committed, and that hence she should be estopped to recover.

The case was tried before his Honor, Judge Prince, and a jury, at the Fall term of the Court, 1915, for Fairfield county, and resulted in a verdict for the plaintiff in the sum of $2,476. After verdict a motion for a new trial was made by the defendant and refused, and after entry of judgment defendant appeals.

The exceptions 1, 2 and 3 impute error in charging the jury as he did; exceptions 4 and 5 in not charging certain requests of the defendant; and exceptions 6, 7 and 8 in not setting aside and granting a new trial on grounds urged by the defendant.

This Court has said that it will not consider exceptions based upon part of the Judge's charge, or detached portions thereof, where the charge taken as a whole shows that the portions excepted to are not prejudicial to the parties complaining.

A careful reading of Judge Prince's charge as a whole shows that there is no foundation for the exceptions made by the defendants.

In charging the jury as he did he was careful to give the law applicable to the case, he charged the jury fully that if the checks were forged that the bank was liable unless the plaintiff was guilty of negligence either in discovering the forgery or in failing within a reasonable time after she discovered it to notify the bank.

His charge as a whole, as to what her actions, her conduct, and her duty in the premises were, and what would estop her was full. His charge as a whole was able, fair and impartial, and was a correct interpretation of the law of the case, and was not in any manner prejudicial to the defendant. He submitted to the jury as was proper the disputed facts, and in no manner invaded their province, and correctly charged the law to them.

A Judge has the right in declaring the law in a case to do so in his own language, and where a request is preferred, and is sound and correct law, the party preferring the request has a right to have the jury get the benefit of it, but not as a matter of right in the language of the lawyer, but the Court can convey it to the jury in the language of the Court.

The exceptions that complain of error on the part of his Honor are overruled, as it has not been made to appear that either what he charged or failed to charge the requests of the defendant were prejudicial to the defendant.

He charged all the law that was necessary for the jury to have. His charge was correct; he neither charged anything that was prejudicial to the defendant or by his failure to charge any requests of the defendant prejudiced the defendant.

Judge Prince's charge was an able exposition, covering every phase of the case, he laid down the principles of law applicable to the case. He neither did nor left undone anything that was prejudicial to the defendant in any of the exceptions made by the defendant.

The Judge after hearing the whole case refused the motion for a new trial, and having refused to set it aside this Court has no power to interfere, as there is no error of law on the part of the Judge in any of the particulars complained of. All exceptions overruled.

Judgment affirmed.

MESSRS. JUSTICES HYDRICK and FRASER concur in the opinion of the Court.

Neither the CHIEF JUSTICE nor MR. JUSTICE GAGE sat on the hearing of this case, nor participated in its consideration.