Farmers Bank of Greenwood v. Perry

• Citation: 301 Ark. 547,787 S.W.2d 645
• Decision Date: 19 March 1990
• Docket Number: No. 89-303,89-303
• Parties: FARMERS BANK OF GREENWOOD, Appellant, v. Steve PERRY, et al., Appellees.
• Court: Arkansas Supreme Court

Page 645

787 S.W.2d 645

301 Ark. 547

FARMERS BANK OF GREENWOOD, Appellant, v. Steve PERRY, et al., Appellees.

No. 89-303.

Supreme Court of Arkansas.

March 19, 1990.

James B. Pierce, Greenwood, for appellant.

Robert S. Blatt, Mark E. Ford, Fort Smith, for appellees.

GLAZE, Justice.

This case comes to us on appeal from a judgment against Farmers Bank, the primary issue on appeal being the admissibility in evidence of an exculpatory clause in the Bank's rental agreement for a safety deposit box.

In June 1979, Wanda, Steve T. and Steve L. Perry, appellees, went to the Farmers Bank of Greenwood, appellant, where they had accounts, to obtain a safety deposit box. Appellees were advised the Bank had no boxes available in Greenwood, but some were available at its branch office in Hartford. Appellees were able to secure a box at the Hartford Branch. The boxes were available only to customers of the Bank and no rent was charged. The Bank obtained the signature of Wanda Perry on the following signature card:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On the night of December 22, 1983, the Hartford Branch office was burglarized and 113 of the 120 deposit boxes were broken into. The contents of appellees' box were lost, which included currency and coins. Appellant denied responsibility for the loss, and appellees brought this suit, claiming appellant negligently failed to take proper measures to protect the contents of appellees' safety deposit box.

At trial, the court refused to allow the introduction of the signature card in evidence on the ground that appellant could not contractually eliminate its tort liability. The jury returned a verdict for the appellees in the amount of $20,000, and Farmers Bank has appealed from the judgment entered on the verdict.

As its primary point on appeal, the Bank challenges the trial court's ruling in excluding the signature card from the jury and asks us to reverse on that basis. Arkansas law, however, clearly supports the trial court's decision. In fact, this court has never upheld an agreement purporting to release a party from liability for his own negligence before it occurred. See Williams v. U.S., 660 F.Supp. 699 (E.D.Ark.1987). The rationale behind the numerous decisions invalidating so-called releases given before liability arises is based upon the strong public policy of encouraging the exercise of care. Id. When construing such release contracts, this court has said that it is not impossible to avoid liability for negligence through contract however, to avoid such liability, the contract must at least clearly set out what negligent liability is to be avoided. Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972). Finally, contracts which exempt a party from liability for negligence are not favored by the law, and they are strictly construed against the party relying on them.

Here, the appellant Bank prepared the signature card, containing exculpatory language, which says, "The undersigned customer holds the Farmers Bank harmless for loss of currency or coin left in the box." Such language does not expressly exempt the Bank from liability for its own negligence. If it had intended to exempt itself from liability for negligence, the Bank could have more aptly done so in its card or written release. Cf. Gulf Compress Co. v. Harrington, 90 Ark. 256, 119 S.W. 249 (1909) (where written warehouse receipt provided the company was "not responsible for loss by fire ...," and this court held the release did not exempt the company for its negligence, causing fire damage to cotton plaintiff had stored with the company).

In the present case, the record reflects proof that the Bank had been negligent in failing to restore a burglar alarm system that had been inoperative for more than a week prior to, and including, the day burglars entered and stole monies and valuables from the Bank's vault. The vault stored the lock box which contained appellees' valuables that were also stolen. During the trial, the Bank attempted to introduce into evidence its signature card--signed by appellee Wanda Perry--with its disclaimer for loss of currency and coins. The trial judge excluded the card, holding the Bank could not "sweep away" its tort liability through the card's introduction. We believe the trial judge correctly concluded the Bank's disclaimer failed to contain language that removed the Bank's liability for negligence. That being so, he was also correct in excluding the disclaimer from evidence because it was irrelevant.

Appellant Bank also objects to the court's refusal to allow certain testimony from an expert. During the trial, the appellant called Ken Sanders, who was at the time working for another bank, but who had previously worked as a bank examiner. Appellant argues that Sanders testified to a number of matters, but the court, upon objection from appellees, refused to let him testify about security measures exercised by appellant in comparison to branch banks of similar sized communities within the state.

Neither the objection nor the discussion between the trial judge and the attorneys is abstracted with regard to this point. Further, Sanders' proffered testimony, if any, does not appear in the abstract, as well. Therefore, without going to the record, we cannot determine whether the trial court erred. As we have stated numerous times, we will not go to the single record to determine whether reversible error has occurred. See Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984); First National Bank of Brinkley v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984).

Appellant also sought to introduce testimony of six customers reflecting that they had been told not to keep currency or coins in their safety deposit boxes. Specifically, the profferred testimony was to the effect that the witnesses had been instructed by Connie Ford, the Bank's branch manager, that the boxes were not provided for the purpose of keeping valuables, but were only for storing important papers and documents. One witness offered testimony that it was "common knowledge of the community" that these boxes were only for important papers. Appellant offered testimony of these witnesses to undergird its efforts to introduce the Bank's disclaimer signed by appellees and to show the applicable standard of care. Under the circumstances of the cases and in view of our earlier discussion and holding that the Bank's disclaimer was inadmissible, we agree with the trial court's ruling that these witnesses' testimony was irrelevant. As we have said repeatedly, rulings on the relevancy of evidence are discretionary with the trial court, and we do not reverse absent an abuse of discretion. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985); A.R.E. Rule 104.

Appellant also contends the trial court erred in refusing to instruct the jury on the proper duty of care. One instruction classified the Bank as a gratuitous bailee, there being proof that the boxes were provided without charge. But the signature card expressly states that the box is given in consideration of checking or savings accounts held by the bailor and only patrons with accounts at the Bank were given boxes. A bailment for the mutual benefit of the parties is not a gratuitous bailment. See Hinkle v. Perry, 296 Ark. 114, 752 S.W.2d 267 (1988); Warren v. Geater, 206 Ark. 518, 176 S.W.2d 242 (1943).

In addition, appellant wanted an instruction defining negligence in comparison to the standards of similar banks. It was not error to refuse an instruction on this point, as there was no evidence of other standards.

In its next point for reversal, appellant argues the trial court erred when it allowed appellees to impeach a witness with an inadmissible prior inconsistent statement. Appellees had called the branch manager, Connie Ford, who testified that the burglar alarm had been inoperative "for a few days." The appellees sought to impeach this testimony with a prior inconsistent statement. Ms. Ford had talked to an FBI agent after the burglary and told him that the alarm had been out for a much longer time than a few days prior to the burglary. Appellee read the statement taken by the FBI agent and asked Ms. Ford if that is what she had told him. The appellee never asked that the statement be admitted into evidence and only read it verbatim, at the suggestion of the court, when the witness could not remember the contents of the statement she had made to the agent.

Appellant's objection below is not entirely clear, but we interpret the objection as being: 1) appellees had refused to give the statement to appellant earlier when requested and 2) had refused to call the FBI agent as a witness. On appeal, appellant argues that it was 1) hearsay, 2) unauthenticated, and 3) appellant was entitled to see the statement before it was offered into evidence.

The appellees could properly examine the witness about a prior inconsistent statement for impeachment purposes under A.R.E. Rule 613. That rule also provides that the statement or its contents need not be disclosed at that time, but on request shall be shown to opposing counsel. This answers the only objection that was made both below and on appeal. We note that there was never any request by appellee that this be used as substantive evidence under A.R.E. Rule 801(d)(1), nor could it have been so treated in this case. The statement of the agent was hearsay, the statement of Ms. Ford was not. Nevertheless, her statement could have been admissible under A.R.E. Rule 613 for impeachment purposes. See Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). Aside from the evidentiary rule arguments now made by the Bank, we note that none would have been prejudicial error even if one of them had merit, since the F.B.I. report, containing Ms. Ford's statement, was allowed to be introduced without objection.

Finally, the appellant contends certain errors arose in the...