Corning Bank v. Rice, 82-189

• fullCitation: Corning Bank v. Rice, 645 S.W.2d 675, 278 Ark. 295 (Ark. 1983)
• Decision Date: 07 February 1983
• Citation: 645 S.W.2d 675,278 Ark. 295
• Docket Number: No. 82-189,82-189
• Parties: The CORNING BANK, Appellant, v. Bobby RICE, Administrator of the Estate of Melvin Rice, and Marlin Rice, Appellees.
• Court: Arkansas Supreme Court

Page 675

645 S.W.2d 675

278 Ark. 295

The CORNING BANK, Appellant, v. Bobby RICE, Administrator of the Estate of Melvin Rice, and Marlin Rice, Appellees.

No. 82-189.

Supreme Court of Arkansas.

Feb. 7, 1983.

Rehearing Denied March 14, 1983.

Scott Manatt and Phillip Crego, Corning, for appellant.

Joe Morphew, Corning, for Marlin Rice.

Gus R. Camp, Piggott, for Robert J. Rice.

GEORGE ROSE SMITH, Justice.

Melvin Rice died intestate in April, 1981, survived by four children. At his death Melvin owned 11 certificates of deposit issued by the Corning Bank, totaling $39,525.08 and payable on Melvin's death to his brother, the appellee Marlin Rice. A controversy arose between Marlin and Melvin's administrator, because Melvin had not designated in writing, over his signature, that the CD's were payable on his death to Marlin, as the statute and cases require. Ark.Stat.Ann. § 67-552(e) (Repl.1980); Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969); McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980).

To settle that dispute the bank filed this bill of interpleader, asking the court to determine ownership as between Marlin and the estate. Marlin, however, filed a counterclaim against the bank, seeking judgment for the face amount of the certificates on the ground that the bank had negligently failed to carry into effect Melvin's intention that the certificates be made payable on his death to Marlin. This appeal by the bank is from a decree holding (a) that the bank is liable to the estate as the owner of the certificates and (b) that the bank is also liable to Marlin, as the third-party beneficiary of the bank's contract with Melvin, for the amount of all the certificates except one, which was issued more than five years before Melvin's death. Marlin cross appeals as to the excepted certificate. The bank argues several theories in its effort to escape double liability. Our jurisdiction is under Rule 29(1)(c).

The facts are not in dispute. The bank never required the purchaser of a CD to designate in writing the payable-on-death beneficiary of the CD. Melvin Rice was a regular customer of the bank up until his death, buying CD's from time to time. On July 20, 1978, he bought a $3,000 certificate payable to himself or on his death to Marlin. During that transaction, which was handled by Louise Coleman, a vice-president of the bank, he asked about his other certificates and learned that some were payable on his death to his son Robert and some to his brother Marlin. He directed that all of them be made payable to Marlin. Ms. Coleman made appropriate changes on the bank's carbon copies of the various certificates. She asked Melvin to bring in the originals so that he could initial the changes on them as well. The chancellor found that he did bring in the originals, which is obviously true, because in every instance the change that was made on the original conformed exactly to the change on the bank's copy, except that it was written on a different typewriter. Ms. Coleman conceded that the changes could have been made by someone else in the bank. That evidently happened, because the various changes could not have conformed exactly to the bank's records unless they had been made at the bank. Certificates bought later by Melvin were made payable on his death to Marlin.

The present controversy arises solely because the bank did not require Melvin to comply with the statute by designating in writing that the certificates be payable on his death to Marlin. Ever since the Cook case was decided in 1969 we have consistently held that a payable-on-death certificate is not so payable unless the holder signs some instrument to that effect. Hence the trial court was right in holding that the certificates now in issue are owned by Melvin's estate. Indeed, the bank does not question that holding except by arguing that the bank should not be doubly liable.

The bank's additional liability for its negligence is clear. Marlin's cause of action as a third-party beneficiary is established by two similar cases. In Lovell v. Marianna Federal S. & L. Ass'n, 264 Ark. 99, 568 S.W.2d 38 (1978), we imposed liability in an analogous situation:

After all the deposit of funds in a joint account with right of survivorship under such circumstances is nothing more than a convenient way to plan one's estate--it has sometimes been referred to as a 'Poor Man's Will.' A bank holding out to the public that money could be so deposited and withdrawn is not in a position to allege fraud to protect it from its malfeasance ....

On facts similar to the case at bar the Court of Appeals held the bank liable to a third-party beneficiary of the mishandled transaction between the bank and the purchaser of the certificate, saying:

There was ample testimony to show that Rebecca Self intended that the three certificates were to pass to Barbara Ann Baker upon Mrs. Self's death, and that Mrs. Self effectively conveyed that intention to appellee [the bank] .... The loss to appellant arose because of the failure of appellee to follow its own procedures.

The appellee is not required, or permitted, to give legal advice to its customers, but it does hold out to the public that money can be deposited and passed on in the way Rebecca Self attempted.

Baker v. Bank of Northeast Arkansas, 271 Ark. 948, 611 S.W.2d 783 (Ark.App.1981).

We are not impressed by the bank's argument that Marlin had to offer testimony that the bank holds itself out as competent to carry out the wishes of its customers in issuing certificates of deposit. A bank can certainly be expected to exercise ordinary care in handling its customers' business. We agree with the trial court's disposition of this argument:

The Corning Bank, as well as any banking institution who receives money from its depositors in exchange for certificates of deposit, does indeed hold itself out to issue the Certificate of Deposit in such manner as to comply with the wishes of the depositor. In this instance, Melvin Rice clearly intended that at his death his brother was to have the proceeds and the bank by the testimony of its own employees and former employees admits that it attempted to comply with his wishes. Unfortunately, the bank simply did not comply with the provisions of Section 67-552, Arkansas Statutes Annotated, and it is not incumbent upon the depositor to insist that the provisions of that statute are complied with because the average layman has absolutely no knowledge of the statute. On the other hand, every banking institution should have knowledge of any relevant statutory provision regarding banks in the State of Arkansas.

The bank's other theories for reversal can be disposed of quickly. Inasmuch as the statute had been in force for years and had been construed in 1969 in Cook v. Bevill, supra, our present holding is in no way unfairly retroactive as to any vested right. As to the statute of frauds, the third-party beneficiary agreement did not have to be in writing, for the statute applies only to contracts incapable of being performed within a year. Reed Oil Co. v. Cain, 169 Ark. 309, 275 S.W. 333 (1925). Here the bank could of course have performed its contract had Melvin died before the expiration of a year.

The bank argues in its brief that it should not be liable twice for the same money. That argument misses the point. The bank has always been liable for the amount of the CD's, which represented money belonging not to the bank but to the purchaser. The only question is whether the bank should pay for its negligence. If not, it gets off scot-free from carelessness that caused a substantial loss to Marlin Rice. There is no double liability, only a single liability for negligence.

On cross appeal Marlin argues that the chancellor was wrong in holding that the statute of limitations bars Marlin's cause of action upon the CD issued more than five years before Melvin's death. That argument must be sustained. A statute of limitations does not begin to run until the plaintiff has a complete and present cause of action. Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969). Marlin could not have asserted any cause of action upon the CD's until Melvin's death, for until then Melvin was free to change the alternative payee or to cash the CD's himself. Marlin also argues that the trial court should have allowed him more interest on his recovery, but his terse argument, unsupported by a clear statement of the facts or by any citation of authority, does not meet his burden of showing error.

Affirmed on direct appeal, reversed on cross appeal as to the amount of the bond disallowed by the trial court.

ADKISSON, C.J., not participating.

PURTLE, J., dissents.

PURTLE, Justice, dissenting.

I do not agree with the application of the law to the facts as stated in the majority opinion. I am at a loss to understand how this court could order a bank to pay the same money out twice when it is being held in trust for the rightful owner. The majority primarily anchor their opinion on Ark.Stat.Ann. § 67-552(e...