Coristo v. Twin City Bank

• Decision Date: 14 April 1975
• Docket Number: No. 74--183,74--183
• Citation: 257 Ark. 554,522 S.W.2d 417
• Court: Arkansas Supreme Court
• Parties: Iris CORISTO and Don Coristo, Appellants, v. The TWIN CITY BANK and Melvin L. Huffman, Individually and as Executor of the Estate of Gladys Clements, Deceased, Appellees.

Page 417

522 S.W.2d 417

257 Ark. 554

Iris CORISTO and Don Coristo, Appellants, v. The TWIN CITY BANK and Melvin L. Huffman, Individually and as Executor of the Estate of Gladys Clements Deceased, Appellees.

No. 74--183.

Supreme Court of Arkansas.

April 14, 1975.

Ray & Donovan by Robert J. Donovan, Marianna, for appellants.

Wallace, Hilburn & Wilson, Ltd., by Zachary D. Wilson, North Little Rock, for The Twin City Bank.

E. L. Schieffler and Harvey L. Yates, West Helena, for Melvin L. Huffman, individually, and as executor of the estate of Gladys Clements, deceased.

[257 Ark. 563-A] FOGLEMAN, Justice.

By petition for rehearing, appellants assert that we failed to consider their argument that the Twin City Bank is estopped by the passbook statement. Although we made particular application of the rules relating to estoppel to facts particularly pertinent to the estate of Gladys Clement, we unintentionally failed to extend our treatment to the position of the bank. The evidence in support of an estoppel is perhaps stronger in the case of the bank than it was as to Mrs. Clement. The bank obviously did know that the notation as to presentation was on the first page of the passbook. But, as we have pointed out, the bank viewed it as a measure for its own protection and not for the benefit of the depositor, and never represented to Mrs. Coristo that it was for her protection or that it afforded her any protection.

The chancellor did not find that there was a basis for estoppel, and, in view of the burden of proof in such cases, we cannot say that he was in error. Mrs. Coristo drew her own inference to arrive at her conclusion. Since an estoppel bars the truth of the contrary, the party asserting it must prove it strictly. We cannot say that estoppel as to the bank has been shown strictly or to the degree of certainty required. Usually, estoppel can only be predicated upon a statement made with the intention to mislead the party asserting it or that it be acted upon by the party to whom it was made. Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 752, 18 S.W.2d 327. It must be clearly established that there was such intention or that there was negligence so gross as to be culpable. Hope Lumber Co. v. Foster & Logan Hardware Co., 53 Ark. 196, 13 S.W. 731. Gross negligence falls just short of that reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong, and the distinction is said to be so slight as to...