Buena Vista Loan and Sav. Bank v. Bickerstaff

Decision Date05 February 1970
Docket NumberNo. 44696,No. 3,44696,3
Citation121 Ga.App. 470,174 S.E.2d 219
CourtGeorgia Court of Appeals
PartiesBUENA VISTA LOAN & SAVINGS BANK v. W. L. BICKERSTAFF

Syllabus by the Court

1. The relationship of the bank to its customer, under the evidence in this case, in furnishing for a fee a safe deposit box for the use of the customer, in which he placed valuables, including cash which mysteriously disappeared, is that of a depositary for hire to which the law of bailment applies.

2. The pleadings and evidence do not eliminate, as a material and genuine issue of fact for jury determination, whether the bank fulfilled it duty of ordinary care under the law of bailment to safeguard the contents of the safe deposit box.

3. The trial court properly refused to grant a summary judgment for the defendant.

This action is based on the alleged mysterious disappearance of $9,400 in cash from a safe deposit box which the plaintiff customer had rented from the defendant bank. The bank appeals from the denial of a summary judgment.

The evidence considered by the court on the motion for summary judgment consists of answers to interrogatories, depositions, and affidavits. Nothing in this evidence discloses any written agreement between the customer and the bank setting forth the terms and conditions under which the customer rented and used the safe deposit box.

The plaintiff's deposition shows that he rented the box about 1958 and received one key to the box. It was difficult to open the box with this key and he exchanged it at the bank for another key. He did not know what the bank did with the returned key. On November 10, 1967, he borrowed $5,000 from the Bank of Commerce in Clayton, Alabama, and on November 14, 1967, he borrowed an additional $5,000 from the same bank. In each instance he received cash in the form of $100 bills. On November 13, 1967, he placed $4,400 in $100 bills in a blue envelope and put it in the safe deposit box. On November 15, 1967, he put the additional $5,000 in the box, in another blue envelope. When he examined the contents of the box on June 20, 1968, the money had been removed from the envelopes, but otherwise the contents of the box were undisturbed. After ascertaining from an employee of the bank that the president was out of town he did not report the matter, but did tell his wife about it. On the following day he reported the matter to the president of the bank.

The plaintiff's deposition shows further that when he desired to gain access to the box he would give his key to a bank employee, who would use the key and a guard key retained by the bank to get the box and bring it to him. He would sign a card either before or after he used the box. Whether he could see the employee during this time depended on where he was standing. Usually the employee would be out of sight. The majority of the time an employee would return the box, but he might have done it himself two or three times in ten years. If an employee returned the box, this employee would be out of sight while locking the box unless he stood at the door of the vault, but because of the close quarters he did not do this. The key could be pulled out of the door to the box without the box being locked.

The president of the bank discloses in his deposition that there are two customer keys to each safe deposit box, and that both keys are given to the customer. He did not recall the exchange of keys as related by the plaintiff. If a customer lost a key in most instances the bank would simply replace the key by ordering another at the customer's expense. All employees except the janitor have access to the guard key. It is kept in a box together with the customer keys for unrented boxes. There are separate sections of boxes, and different guard keys are required. There are spare guard keys for each section stored in the same box with the customer keys. No record is made to identify which employee assists a customer. There is no system of dual control over the guard keys. A customer is not invited to go to the box to assist in opening it. He is requested to stand, if he desires, so as to witness getting the box and returning it. Generally, the customer receives his box in a position very close to the front of the vault door. Customers are kept out of the vault. While a customer is examining his box both the guard key and the customer key are left in the locks. On occasion a different employee from the one getting a customer's box will return it. On an unusual occasion within the past five years a customer may have returned a box. The keys returned by a former customer are furnished to a new customer when the box is rented again. By a memorandum dated September 27, 1967, which he signed, customers were notified of some changes in procedure. This memorandum requested that the customer sign and date a card on the outside the vault and remain outside the vault while an employee got the box in his view, that he use a booth in the new part of the bank to work with his box, and return the box to a bank employee to place in the vault. These changes were made because of changes in the physical plan of the bank, and as a diplomatic way of asking people to stay out of the vault. An earlier memorandum, dated September 15, 1967, which he signed, instructed bank employees to allow no one to enter the vault unless accompanied by an officer or employee, and outlined virtually the same procedure as the later memorandum to customers, noting that this would change the habit of a good many customers and that the employees should tactfully ask them to follow this procedure. The president knew of the loss as reported by the customer, and knew of nothing to explain the loss. Questioning of employees had produced negative replies concerning the loss. All keys were tested and none of the keys kept in the vault would open the plaintiff's box. The depositions of two bank employees are in substantial accord with the testimony of the president as to the procedure followed.

The affidavit of an officer of a bank in an adjoining county in Georgia discloses that it is contrary to accepted practice in the banking industry to allow all employees to assist boxholders, to fail to maintain a rigorous indoctrination and training program for employees who assist boxholders, to fail to obtain a receipt for keys issued to a boxholder, or to allow the return of a customer key for indefinite retention and further availability. In his opinion the accepted practice if a boxholder loses a key is to have the lock changed, and to assign a new box to the renter as soon as possible, and the practice of merely having new keys cut and issued to the holder is disapproved. The guard key should not be left available to employees generally, but should be retained in the possession of a specially trained vault attendant, and under a system of dual control when locked in the vault so that the co-operation of two individuals is required to gain access to it. Keys to unrented boxes and guard keys not in actual use should also be under strict control. The bank should keep access records to show who assisted a boxholder. The procedure should insure that the key or box is never out of sight of the customer, and the attendant should never become acquainted with the contents or handle the contents....

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5 cases
  • Brown v. Five Points Parking Center
    • United States
    • Georgia Court of Appeals
    • May 27, 1970
    ...places money or securities therein the relationship of bailor and bailee arises between him and the bank. Buena Vista Loan &c. Co. v. Bickerstaff, 121 Ga.App. 470, 174 S.E.2d 219. Whether our holding in that case may conflict with that of the Supreme Court in the Baker case and in Tow v. Ev......
  • Hossain v. Rauscher Pierce Refsnes, Inc.
    • United States
    • U.S. District Court — District of Kansas
    • April 9, 1999
    ...Bldg. Corp., 33 Ill.App.3d 1083, 339 N.E.2d 497, 503 (1975) (citations omitted) (emphasis added); Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga.App. 470, 174 S.E.2d 219, 222 (1970) (A special deposit may include "a sealed package of money, or property or securities" delivered to an in......
  • Park 'N Go of Georgia, Inc. v. U.S. Fidelity and Guar. Co.
    • United States
    • Georgia Supreme Court
    • June 17, 1996
    ...the personal property of another and exercises complete dominion at all times over the property. See Buena Vista Loan, etc., Bank v. Bickerstaff, 121 Ga.App. 470, 475, 174 S.E.2d 219 (1970). For all practical purposes, Park 'N Go, by virtue of its lot design and processing procedures, exerc......
  • Pastis v. Cobb Exchange Bank
    • United States
    • Georgia Court of Appeals
    • June 9, 1977
    ...to you, I don't know what's happened." The bank officer denied both allegations. Defendant, citing Buena Vista Loan & Savings Bank v. Bickerstaff, 121 Ga.App. 470(1), 174 S.E.2d 219, cert. den., contends the relationship between a bank and a customer who has rented a safe-deposit box therei......
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