First Bank of Southwest Mississippi v. Bidwell, 56841

• Decision Date: 07 January 1987
• Docket Number: No. 56841,56841
• Citation: 501 So.2d 363
• Parties: FIRST BANK OF SOUTHWEST MISSISSIPPI v. Bernard C. BIDWELL.
• Court: Mississippi Supreme Court

Page 363

501 So.2d 363

FIRST BANK OF SOUTHWEST MISSISSIPPI v. Bernard C. BIDWELL.

No. 56841.

Supreme Court of Mississippi.

Jan. 7, 1987.

Robert W. Brumfield, Brumfield & Austin, McComb, for appellant.

T. Mark Sledge, Robert W. Sneed, Jackson, for appellee.

Before HAWKINS, P.J., and DAN M. LEE and GRIFFIN, JJ.

DAN M. LEE, Justice, for the court:

First Bank of Southwest Mississippi appeals a $20,000.00 judgment entered against it in the Circuit Court of Pike County.

On September 15, 1983, Bernard C. Bidwell brought suit against the Bank alleging a breach of contract and negligence.

The complaint alleged that Bidwell and his father, B.W. Bidwell, on or about March 30, 1982 leased a safe-deposit box at the bank as joint tenants with right of survivorship. Bidwell alleged that after B.W. Bidwell died on or about October 12, 1982, the bank wrongfully allowed Shirley R. Dykes, B.W. Bidwell's roommate, to enter the safe-deposit box and remove the contents of the box. Bidwell sought damages in the amount of $79,168.00 and sought punitive damages in the amount of $20,000.00.

At the close of the trial, a special interrogatory was submitted to the jury to determine the amount of cash in the safe deposit box. The jury returned the interrogatory, answering that there was $8,700.00 in the box. However, the jury also returned a general verdict for actual damages in the amount of $20,000.00. Defendant bank moved for a reconciliation of verdict and judgment to reflect a judgment in the amount of $8,700.00, then moved to amend the verdict to reflect an award consistent with the interrogatory pursuant to M.R.C.P. 59(e). Both motions were denied by the trial court.

The Bank appeals assigning four errors, all related to its argument that judgment should only have been entered in favor of Bidwell in the amount of $8,700.00--the amount of cash the jury found to be taken from the safe deposit box in its answer to the interrogatory. We do not agree, but we find the unique factual situation and obvious confusion present requires reversal for a new trial on the issue of damages alone.

FACTS

Bernard Bidwell opened a safe-deposit box with his father as a joint tenant on March 30, 1982. Their agreement was with First Bank of Southwest Mississippi (hereinafter the Bank), the defendant below. At trial Bidwell was granted a peremptory instruction to the effect that the Bank had breached its contractual agreement and had been negligent in allowing someone other than Bidwell or his father to enter the safe-deposit box.

The only dispute on appeal concerns the amount of damages assessed against the Bank for the breach of its duties.

Bernard Bidwell testified that he placed $8,700.00 in cash in the safe-deposit box on March 30, 1982, the same day he and his father opened the box.

Bernard had wanted the box as a place to keep B.W. Bidwell's money while he was recuperating from a mild heart attack in Beacham Hospital.

The Bank maintained a signature card for signatures of those seeking entrance to the box.

The card reflects, and Bernard testified, that he entered the box only on March 30, 1982 when he put the $8,700.00 in the box, and on February 11, 1983, when he closed the box.

However, the card reflects that B.W. Bidwell also entered the box on two different occasions; April 14, 1982, and May 12, 1982. Bernard testified that April 14, 1982 was the day the elder Bidwell was released from the hospital after his heart attack. B.W. Bidwell died October 12, 1982.

The signature card also reflects that a Shirley Bidwell entered the box on October 14, 1982, two days after B.W. Bidwell's death. The record is unclear as to whether Shirley was actually married to B.W., but it appears she was merely using B.W.'s name. Bernard testified that Shirley Bidwell was Shirley Dykes, who lived with B.W. in his mobile home near Osyka along with Dykes' two small children.

Bernard Bidwell did not know of Shirley Dykes' entry until he went to close the box on February 11, 1983. At that time the box was empty.

There was additional proof that B.W. Bidwell was holding $20,000.00 in cash in trust for Bernard, and Bernard did not see this money after B.W. Bidwell made his last visit to the safe-deposit box. Bernard also testified that his automobile title might have been in the box.

Bernard's testimony concerning when he last saw the $20,000.00 in cash was contradicted by his testimony in two different depositions, but Bernard withdrew those statements at trial.

Gail Smith, the bank employee who allowed Shirley Dykes access to the box, testified that she had no idea what, if anything, Ms. Dykes took out of the box.

LAW

This case presents an abundance of confusion. There is confusion evident in the jury's verdict, and the briefs of counsel evidence confusion with the procedure for having the jury render special verdicts under M.R.C.P. 49(b).

There was an obvious inconsistency in the jury's answer to the interrogatory and its award of actual damages. This inconsistency was fostered by the instructions.

Instructions D-3 and D-6 required the jury to determine the amount of cash in the box. Instruction D-3 provided:

The person or party who claims that certain facts exist, must prove them by a preponderance of the evidence. This obligation is known as the burden of proof. The burden of proof is upon the Plaintiff to prove what was in the lockbox on October 14, 1982, and that it was removed at that time by Shirley Bidwell.

If he fails to establish by a preponderance of the evidence the amount of cash, if any, was in the lockbox on October 14, 1982, and that it was removed at that time by Shirley Bidwell, then you should find for the Defendant.

Instruction D-6 provided:

If you find for the Plaintiff, Bernard C. Bidwell, then you must also determine from a preponderance of the evidence what cash, if any, was in the lockbox on October 14, 1982, and removed by Shirley Bidwell, and the form of your verdict may be, to wit:

"We, the jury, find that there was cash in the lockbox on October 14, 1982, in the sum of $_____ which was removed by Shirley Bidwell."

writing your answer in the special interrogatory given you with these instructions for that purpose.

The jury returned the special interrogatory, finding that there was $8,700.00 removed from the box.

However, the jury was also instructed...