Before WILKEY and EDWARDS, Circuit Judges, and MacMAHON,* Chief Judge, United States District Court for the Southern District of New York.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-0857).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACMAHON
This is an appeal by plaintiff-appellant Ramzi A. Boutros ("Boutros") from the entry of a judgment n.o.v. in favor of defendant-appellee Riggs National Bank of Washington, D.C. ("Riggs") in the United States District Court for the District of Columbia. This action to recover for the allegedly unauthorized withdrawals of funds from Boutros' savings account at Riggs, was tried to a jury which rendered a verdict for Boutros for $21,000, the full amount claimed. Upon motion of Riggs, Judge John H. Pratt set aside the verdict and entered judgment for defendant. For the reasons set forth below, we reverse and remand to the district court with the direction to enter judgment in accordance with the verdict.
An award of judgment notwithstanding the verdict should only be made if the Court, after viewing all of the evidence, together with all inferences reasonably to be drawn, in the light most favorable to the successful party, determines that the evidence is so overwhelmingly in favor of the other party that reasonable men could not disagree. Upon review, we must do the same. Vander Zee v. Karabatsos, 191 U.S. App. D.C. 200, 589 F.2d 723 (D.C.Cir.1978); Luck v. Baltimore & Ohio Railroad Co., 510 F.2d 663 (D.C.Cir.1974). Moreover, it is the function of neither the trial nor the appellate court to assess the credibility of witnesses or determine the weight of the evidence. Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171 (3d Cir. 1975). With these principles in mind, the facts are as follows.
Boutros, an Egyptian citizen, opened a savings account with an initial deposit of $1,500 at Riggs' Dupont Circle branch in September 1976 during a visit to the United States. He was introduced at the bank by John Beshai ("Beshai"), a fellow Egyptian residing in this country, whom Boutros had known for some time. Beshai already had an account at Riggs. Boutros opened the account in his name alone and his were the only signatures, in English and Arabic, on the signature card. However, Boutros instructed the branch manager to send all statements of his account to Beshai's office in Washington, explaining that the maintenance of the account violated Egyptian currency regulations at that time.
The following day, Boutros executed a power of attorney which provided as follows:
I am the undersigned RAMZI ATTIA BOUTROS, EGYPTIAN, BORN Oct. 27, 1929 on MONDAY SEPTEMBER THE THIRTEENTH YEAR NINETEEN HUNDRED SEVENTY SIX here declare the power of attorney to Mr. John A. Beshai, Egyptian Attorney and member of Egyptian Bar, all my rights to ship any car or spare part in my name to Egypt and take for that all necessary. I also give him the power of attorney to represent me at immigration office (sic) or any governmental departments and hand necessary papers.
Shortly thereafter, Boutros returned to Egypt. In March 1977 Boutros wired a further deposit of $23,349.88 into the account.
Commencing in February 1977 and continuing to September of that year, Beshai made a series of withdrawals from the account totaling $21,000. Beshai concededly made the withdrawals by presenting to the bank withdrawal slips on which he had signed Boutros' name. An officer of Riggs admitted at trial that at the time the withdrawals had been made he thought that the slips had in fact been signed by Boutros and was unaware that it was Beshai who signed them. At this time Riggs had an established policy requiring that a power of attorney be on file with the bank for any person other than the depositor to make withdrawals. No such document was filed with Riggs.
Each of the withdrawals appeared on the bank statements. However, the bank statements were mailed to Beshai and Boutros was not aware of these transactions.
Boutros returned to the United States in September 1977 and requested Riggs to forward all future statements to his son-in-law, who then lived in New Jersey. When the next statement was received on October 3, 1977, Boutros noticed the withdrawals and promptly contacted Riggs, asserting that the withdrawals had not been authorized. Riggs refused to credit his account for the money paid over to Beshai and this suit resulted.
The jury returned a verdict for Boutros in the amount of $21,000. Judge Pratt, however, granted judgment n.o.v. to Riggs, finding, at Riggs' urging, that the evidence conclusively established that Beshai was authorized to withdraw funds from Boutros' account and that therefore the Uniform Fiduciaries Act insulated Riggs from liability. Alternatively, the trial court rested its decision upon its finding ...