Citizens Bank of Coldwater v. Callicott

• Decision Date: 26 April 1937
• Docket Number: 32704
• Citation: 174 So. 78,178 Miss. 747
• Court: Mississippi Supreme Court
• Parties: CITIZENS BANK OF COLDWATER v. CALLICOTT et al

174 So. 78

178 Miss. 747

CITIZENS BANK OF COLDWATER v. CALLICOTT et al

No. 32704

Supreme Court of Mississippi

April 26, 1937

Division B

1. BANKS AND BANKING.

Bank which accepted diamonds for safekeeping from depositor placed them where they would be safe against every one except officers of bank, and subsequently was unable to find them on demand for their return held liable for value of diamonds.

2. BANKS AND BANKING.

Where bank accepts special deposits and its managing officer subsequently converts securities to his own use, even though a gratuitous bailee, the bank is liable to depositor for the loss, regardless of whether such loss is occasioned by mere negligence or fraud, the act of conversion by the controlling officer being, in effect, the act of the bank itself.

3. BANKS AND BANKING.

Bank is not a gratuitous bailee where it invites and accepts special deposits as accommodation to its customers.

4. TROVER AND CONVERSION.

Parties seeking to recover values of articles lost or converted must produce dependable evidence as to value of such articles.

5 EVIDENCE.

Best evidence capable of being produced must be produced.

6 EVIDENCE.

Hearsay evidence is inadmissible.

7 EVIDENCE.

That a party produces the best evidence he has, or could be expected to have, does not exempt him from rule which requires evidence to be sufficient to satisfy jury.

8. BANKS AND BANKING.

In suit against bank for value of diamonds which had been deposited with bank for safekeeping, based on failure of bank to return diamonds on demand, evidence of persons not qualified to testify as to value of diamonds held insufficient to sustain judgment for plaintiff for amount awarded.

HON. L. A. SMITH, SR., Chancellor.

APPEAL from the chancery court of Tate county HON. L. A. SMITH, SR., Chancellor.

Action by W. C. Callicott and others against the Citizens Bank of Coldwater, Mississippi. Judgment for the plaintiffs, and the defendant appeals. Judgment affirmed in part, and reversed and remanded in part.

Affirmed in part, and reversed and remanded in part.

Herbert Holmes, of Senatobia, for appellant.

The rule is well settled that in the absence of special contract, an ordinary bailee for hire is not an insurer against theft, and cannot be held liable for loss of the property by this means without negligence on his part.

Wylie v. Northampton National Bank, 119 U.S. 361, 30 L.Ed. 455, 7 S.Ct. 268; Louisville & N. R. Co. v. Burlington, 131 Ala. 620, 31 So. 592; Copelin v. Berlin Dye Works & Laundry Co., 168 Cal. 715, L. R. A. 1915C 712, 144 P. 961, 12 N. C. C. A. 362; Hebert v. Patrick, 27 Colo.App. 204, 146 P. 190; Renfroe v. Fouche, 26 Ga.App. 340, 106 S.E. 303; Mote v. Chicago & N.W. R. Co., 27 Iowa 22, 1 Am. Rep. 212; Keen v. Beckman, 66 Iowa 672, 24 N.W. 270; Cass v. Boston & L. R. Co., 14: Allen 448; Knights v. Piella, 111 Mich. 9, 66 Am. St. Rep. 375, 69 N.W. 92; Bagley Elevator Co. v. American Exp. Co., 63 Minn. 142, 65 N.W. 264; Corbin v. Gentry & F. Cleaning & Dyeing Co., 181 Mo.App. 151, 167 S.W. 1144; Grout v. Meyer, 91 Neb. 845, 137 N.W. 844; Greenberg v. Mermelstein, 188 N.Y.S. 250; Donhm v. Pehr, 188 N.Y.S. 522; Smith v. Maher, 84 Okla. 49, 23 A. L. R. 270, 202 P. 321; Erie Bank v. Smith, 3 Brewst. 9; Frank Bros. v. Central R. Co., 9 Pa. S.Ct. 129; Whitemore v. Haroldson, 2 Lea, 312; Kelton v. Taylor, 11 Lea 264, 47 Am. Rep. 284, 1 Am. Neg. Cas. 933; Staley v. Colony Union Gin Co., 163 S.W. 381; Sanchez v. Blumberg, 176 S.W. 904; Tancil v. Seaton, 28 Graft. 601, 26 Am. Rep. 380, 1 Am. Neg. Cas. 843; Firestone Tire & Rubber Co. v. Pacific Transfer Co., 26 A. L. R. 217; Hutchinson v. U. S. Exp. Co., 63 W.Va. 128, 14 L. R. A. 393, 59 S.E. 949; Finucane v. Small, 1 Esp. 315; Dominion Exp. Co. v. Krigbaum, 18 Ont. L. Rep. 533, 13 Ont. Week. Rep. 364; Hill v. Stait, 23 Manitoba L. R. 832, 25 West. L. R. 475, 5 West. Week. Rep. 225, 14 D. L. R. 158.

There is no proof in this case that any servant or employee of the bank stole the diamonds, but the mere fact that the goods were stolen, if they had been, or if they were, from a bailee for hire by one of its own servants is insufficient to show negligence on the part of the bailee.

Finucane v. Small, 1 Esp. (England) 315; Schmidt v. Blood, 9 W. (New York) 268, 24 Am. Dec. 143; Copelin v. Berlin, 168 Cal. 715, L. R. A. 1915C 712.

The weight of authority appears to support the proposition that, at; least, in actions based on negligence, the ultimate burden, as Mr. Wigmore's phrase puts it, the burden in the sense of the risk of nonpersuasion--of proving negligence, is ordinarily upon the bailor, where he is seeking to recover for the loss of property which it is conceded, or which the evidence tends to show with reasonable certainty, has been stolen while in the possession of the bailee.

Lampley v. Scott, 24 Miss. 582; Fleming v. Northampton National Bank, 62 How. 177, Fed. Cas. No. 4862A; California, 179 Cal. 63; Colorado, 146 P. 190; Illinois, 198 Ill. 584; Maine, 138 Am. St. Rep. 345; Massachusetts, 7 Allen 98; Michigan, 66 Am. St. Rep. 375; Minnesota, 65 N.W. 264; Missouri, 218 S.W. 403; Nebraska, 95 N.W. 779; New York, 176 N.Y.S. 341; Texas, 163 S.W. 381; Claflin v. Meyer, 75 N.Y. 260, 31 Am. Rep. 467; Firestone Tire & Rubber Co. v. Pacific Transfer Co., 120 Wash. 665, 208 P. 55.

There is no proof in the record of the case at bar that the bank was negligent in selecting and keeping E. C. Turley, W. H. Newton, Mr. Ballard, or Mr. Covington, in its employ, and as well said in the Firestone case, supra, the burden is on the ballot to show negligence in this respect on the part of the bailee.

Caldwell v. Hall, 60 Miss. 330.

We think that stating the case most strongly in favor of the Callicotts and admitting for the sake of argument that the Citizens Bank was a bailee that there is a failure on the part of the appellees to prove their case, either by showing a special contract or special deposit by which the bank assumed liability, or showing that the bank was quality of some negligence in some manner, and if negligence was shown, many of our courts have held it must be more than passive negligence, that is, it must be such as would amount to gross negligence. They did not prove any special contract whatever, but the most that was proven was that one of the complainants, Mr. Billy Callicott, delivered the diamonds one night to his friend, Mr. Turley, telling him to put them in the bank, and Mr. Turley kept them that night and on the next day put them in an absolutely safe place where the money of the bank was kept, inside the screw door safe of the vault. If Mr. Callicott was the ballot, then there was certainly no special contract. If Mr. Turley was the bailor, there is no consideration passing, and the most the bank could be is a gratuitous bailee, in any event under the record in this case, there certainly could be no liability on the bank, and these innocent stockholders whose bank did not profit one cent directly or indirectly should not be held liable.

Neither Mrs. Harry Calhcott or Mr. Callicott were able to give facts as to the value or the fair market value of the diamonds lost, and were able only to express an opinion, and that opinion was gained from Brodnax and was not their own opinion. Mr. Callicott frankly admitted that he gained his information from Brodnax, and this was done by correspondence. The proof should have been as to the fair market value of the diamonds either on the day that they were unlawfully converted or on the day they failed to return them when called on to do so.

Merchants Wharf Boat Assn. v. Woods, 3 So. 249; Columbus & G. R. Co. v. Coleman, 16() So. 277, 172 Miss. 514; Board of Levee Corers. v. Dillard, 25 So. 292.

If the witnesses did not know the fair market value of the diamonds in question, it is certainly not competent for them to say what the fair market value was, and they could not by quoting from what some man in Brodnax said fix the value of these diamonds, the man in Brodnax never having seen them.

King v. King, 134 So. 827; Masonite Corp. v. Dennis, 168 So. 613; Western Union Tel. Co. v. Goodman, 146 So. 128; Long v. Griffith, 74 So. 614; Hall v. Clopton, 56 Miss. 555; Allen v. Lenoir, 53 Miss. 321; Herron v. Bondurant, 45 Miss. 683, 115 So. 555.

James McClure, of Sardis, for appellees.

The evidence fully establishes the relationship of bailor and bailee under the law.

6 Am. Jurisprudence, page 140, par. 4; 3 R. C. L. 72, par. 2; Grenada Bank v. Moore, 131 Miss, 339, 95 So, 449.

A chancellor's decision on the facts of a case will be sustained by the Supreme Court unless it be manifestly wrong.

Grace v. Pierce, 127 Miss. 831, 90 So. 590, 21 A. L. R. 1035; Gulf Transp. Co. v. Fireman's Fund Ins. Co., 121 Miss. 655, 83 So. 730, 9 A. L. R. 1307.

The evidence supports the finding of the Chancellor that the defendant Bank negligently failed to return to complainants the diamonds in question.

An essential feature of a bailment is the agreement to return the subject matter of the bailment, either on demand or at the agreed time, or if not returned, to account for the property to him from whom the bailee has received it. It implies a trust that as soon as the purpose of the bailment is answered the bailed property shall be restored to the bailor and in the absence of an expressed agreement by the bailee to return the bailed property to the bailor, the law implies such an agreement.

3 R. C. L., page 114, par. 27, page 88, par. 17, page 115, par. 38; 6 American Jurisprudence, page 453, par. 373, page 454, par. 374, page 455, par. 375, and page 457, par. 376; Y. & M. V. R. R. Co. v. Hughes, 94 Miss. 242; Meridian Fair & Exposition Assn. v. N. Birmingham St. Ry. Co., 12 So. 555.

I submit that the...