dissenting:
I dissent from the majority opinion because I believe that the jury was given proper instructions to decide the issue of the bank’s liability based upon the evidence presented at trial.
In syllabus point 2, the majority opinion states: “Absent circumstances which might place a reasonably prudent bank on notice that its fiduciary duty to its account-holder demands additional inquiry, the bank may rely on the terms of the power of attorney to discern the authority of the holder of such power demanding a withdrawal of funds.”
This principle is sound. However, in this case, the evidence presented at trial raised questions related to this very issue, that is, whether such circumstances were absent or not. The jury decided that such circumstances were not absent in this case, and the trial court erred in setting this determination aside.
The evidence at trial clearly indicated that the account in question had a balance of $19,695.00 when Garfield Milner, Jr. *278withdrew $19,600.00, thus, leaving a balance of only $95.00. Despite numerous deposits during the course of several years, this single withdrawal had the practical effect of depleting the account.
Although the bank did inquire into the validity of the power of attorney in this case, there is nothing in the record to indicate that the bank inquired into the circumstances of that with which it was faced, specifically, an attempt by one acting under the authority of a power of attorney to essentially remove all of the funds from a well established account. The majority opinion acknowledges that the bank did not direct any inquiries to Garfield Mil-ner, Jr. as to why he desired to withdraw almost all of this substantial amount of money and designate himself, without any qualifications, as payee on the cashier’s check.
Moreover, as the majority opinion also acknowledges, the bank made no attempt to contact Gary Milner, the other joint owner of the bank account, and only a minor attempt to contact Garfield Milner, Sr.
In Renzi v. Aleszczyk, 44 A.D.2d 648, 352 N.Y.S.2d 736 (1974), a New York appeals court addressed issues relating to a bank’s duty to exercise due care in transferring funds out of accounts where the attempt to transfer such funds was under the authority of two powers of attorney.* There, the court held: “Where some fact or circumstance ought to ‘have excited the suspicion and inquiry of a[n] ordinarily careful person’, the bank has a duty to inquire into the circumstances before it pays out the funds[.]” 44 A.D.2d at 649, 352 N.Y.S.2d at 738 (emphasis supplied). See also Novak v. Greater New York Savings Bank, 30 N.Y.2d 136, 141-42, 282 N.E.2d 285, 287-88, 331 N.Y.S.2d 377, 381 (1972).
In this case, the bank merely inquired into the validity of the power of attorney, and authority arising therefrom. Under the eyebrow-raising circumstances of this case, the bank did not pursue an inquiry into these circumstances or the specific facts involved.
The majority opinion relies heavily upon a decision of the United States Supreme Court, namely, Empire Trust Co. v. Cahan, 274 U.S. 473, 47 S.Ct. 661, 71 L.Ed. 1158 (1927). While the result reached in Empire Trust is the same as that reached in the case now before us, the majority opinion in this case focuses on the unrestricted nature of the power of attorney, thus comparing it to the one at issue in Empire Trust. The majority opinion fails to recognize and note the additional grounds expressed by the Supreme Court for its decision in Empire Trust: “For in addition to what we have said, the [withdrawal] transactions went on for over two years and the petitioner [bank] fairly might expect the respondent [grantor] to find it out in a month or two if anything was wrong.” 274 U.S. at 479-80, 47 S.Ct. at 662, 71 L.Ed. at 1161.
In this case, there was only one critical transaction: the withdrawal of $19,600.00. This critical transaction did not extend over a period of time whereby any of the other interested parties would have had the opportunity to learn of the account’s depletion.
The majority opinion also has no problem with the fact that the withdrawal request was satisfied by the bank with a cashier’s check made payable to Garfield Milner, Jr., in his individual capacity and not as attorney in fact for Garfield Milner, Sr. Citing no authority and, therefore, presumably relying upon none, the majority opinion asserts that the bank is under no obligation to issue a check in the name of Garfield Milner, Jr., as attorney in fact for Garfield Milner, Sr.
By issuing the check to Garfield Milner, Jr. in his individual capacity, this made it simpler to subsequently deposit the funds in an out-of-state bank in his own account, and, ultimately, to convert the funds to his personal use. In a similar context, it has been stated:
*279The mere fact that an agent or fiduciary deposits in his individual account paper drawn by him in his fiduciary capacity is not generally considered to be sufficient to charge the bank with notice of his intended misappropriation of the funds; this fact, when coupled with additional circumstances, may be sufficient to charge the bank with notice of an intended misappropriation, but without additional circumstances it will not constitute such notice.
10 Am.Jur.2d Banks § 525, at 499 (1963) (emphasis supplied).
It is undisputed that Garfield Milner, Jr. was acting as attorney in fact for his father when he requested the withdrawal of $19,600.00, as this was acknowledged by the bank when it inquired into his authority to do so. Consequently, a fiduciary relationship existed between Garfield Milner, Jr. and his father. “A power of attorney creates an agency and this establishes the fiduciary relationship which exists between a principal and agent.” Kanawha Valley Bank v. Friend, 162 W.Va. 925, 928, 253 S.E.2d 528, 530 (1979) (emphasis supplied).
The question as to what constitutes notice to a bank of an intended misappropriation by a fiduciary of trust funds is one that depends upon the particular facts and circumstances attending the case at hand. Whether the bank had notice or was put on inquiry is a question of fact, not one of law.
10 Am.Jur.2d Banks § 525, at 498-99 (1963) (emphasis supplied) (footnote omitted).
Certainly, all of the circumstances in this case gave rise to a question of fact regarding the bank’s liability. The jury was properly instructed on this factual question and its determination with respect to this question should have been left undisturbed.
Although the trial court set aside the verdict against the bank, in reality, the trial court had responded favorably to the bank’s motion for a directed verdict, which motion was made at the close of the plaintiff’s case-in-chief. Majority op. at 518, n. 2.
Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.
Syl., Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932).
Accordingly, based upon all of the circumstances in this case, the verdict should not have been set aside.
I am authorized to state that Justice MILLER joins me in this dissenting opinion.
In Renzi, the powers of attorney that were at issue were executed not with a signature, but merely with an "X.” Similarly, in this case, the signature on the power of attorney granting authority to Garfield Milner, Jr. is hardly dis-cernable.