First Nat. Bank v. Langley

• Decision Date: 05 May 1975
• Docket Number: No. 47996,47996
• Citation: 314 So.2d 324,77 A.L.R.3d 570
• Parties: FIRST NATIONAL BANK v. James LANGLEY.
• Court: Mississippi Supreme Court

Page 324

314 So.2d 324

77 A.L.R.3d 570

FIRST NATIONAL BANK v. James LANGLEY.

No. 47996.

Supreme Court of Mississippi.

May 5, 1975.

Rehearing Denied July 7, 1975.

Watkins & Eager, W. F. Goodman, Jr., Thomas M. Murphree, Jr., Jackson, for appellant.

Davey L. Tucker, Jackson, for appellee.

Before RODGERS, INZER and WALKER, JJ.

RODGERS, Presiding Justice.

The plaintiff James Langley brought suit in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against the First National Bank of Jackson, Mississippi, for damages sustained by reason of the bank's negligence. The trial court entered judgment for the plaintiff in the amount of five thousand three hundred and thirty-nine dollars ($5,339.00) in accordance with the jury's verdict. From this judgment, the bank appeals, arguing the following assignments of error:

(1) The court below erred in failing and refusing to grant defendant-appellant a peremptory instruction;

(2) The court below committed error in authorizing upon a finding for the plaintiff, damages including physical and mental pain and suffering of the plaintiff;

(3) The court below committed error in authorizing, upon a finding for the plaintiff, damages including loss of earnings and loss of earning capacity;

(4) The court below committed error in submitted to the jury the question of whether or not the bank was negligent or exercised ordinary care and diligence in finding the deposit;

(5) The court below erred in overruling defendant's motion for a judgment non obstante veredicto or for a new trial; and

(6) The verdict of the jury is contrary to the overwhelming weight of the evidence and not supported by the evidence and contrary to the law and evidence.

Mr. Langley cross-appealed, submitting the following sole assignment of error: The trial court erred in refusing to grant the instruction of cross-appellant (plaintiff below) allowing the jury to assess punitive damages, in addition to actual damages, and further erred in granting the instruction of cross-appellee which expressly denied the jury the right to consider punitive damages without defining or describing what such a term encompasses in relation to actual damages.

The plaintiff has worked for the Great Atlantic & Pacific Tea Company (A & P) for twenty-two (22) years. He has worked his way up from a produce helper to the manager of the Canton Road Plaza A & P Store, a position that he held for three and one-half years prior to the incident in issue.

The A & P had for years carried an account with the First National Bank of Jackson (bank). Deposits of the account were made usually by the managers of the various stores and the duplicate deposit slips were mailed by the bank to the New Orleans office of A & P. On Saturday, July 22, 1972, the bookkeeper at the Canton Road Plaza A & P made up two deposit slips and put them with cash and checks into two drawstring deposit bags as she customarily did every Saturday. One deposit was made up from the morning's receipts, and the other was made up from the afternoon's receipts. After the store closed and the deposits were made up, the plaintiff, as manager of the store, took the two deposits to the Woodland Hills Branch of the First National Bank. The plaintiff used his key to open the night deposit box, placed the first deposit into the box and closed the drawer. He then opened the drawer to check that the bag had slid down. He then placed the second bag into the box, went through the same procedure of checking the drawer, and then closed the door and locked it.

On Monday, July 31, 1972, the New Orleans office of A & P notified the plaintiff that it had not been sent a duplicate deposit slip for one of the deposits of July 22, 1972, totalling two thousand three hundred and ninety-two dollars and fifty cents (2,392.50), which had been reported by the plaintiff to the New Orleans office. The plaintiff immediately notified the head teller of the bank, Mrs. Sarah Somers, of this fact. Mrs. Somers checked the records, acknowledged that two deposits had been made every Saturday in the past, but stated that there was no record of the deposit in question having been made. The plaintiff stated to her, 'That thing's got to be hund up in there because I dropped it,' and he asked her to get the key and look. She took him to see the Assistant Cashier, Mr. Bill Fisher. The plaintiff repeated the story and again requested that the night deposit box be checked. Mr. Fisher was hesitant in doing so, but was instructed to get the key by a superior, Mr. Dexter Barr, who had overheard the conversation.

The first search was then made by Mr. Fisher and a teller, Miss Christy Johnson. They opened the vault and looked up inside the chute, and then went outside and dropped a legal size envelope down through the chute. They concluded that the deposit was not there. There is conflicting testimony that Miss Johnson said, 'It's dark (in the chute). Anyone got a flashlight?' None was provided. Throughout the entire search, the plaintiff continually pleaded that the deposit had to be hung up in the night depository.

The plaintiff then returned to his store and had his bookkeeper call the Accounting Service Department of the bank's main office to check their records. They reported no record of such deposit having been made. The plaintiff continued calling the bank once or twice daily that week inquiring about the deposit.

On Friday, August 4, 1972, Mr. Rudolph Bryan, the vice-president and manager of the Woodland Hills Branch of the bank, came to the plaintiff's store to explain the procedures of receiving the night deposits inside the bank. The plaintiff insisted that the deposit was in the deposit box somewhere. Mr. Bryan stated that he knew of no way the deposit could have hung up in the box, but suggested, 'I don't know what happened, unless it didn't go all the way through, and when they pulled the lid back open somebody got it out.' Mr. Bryan testified that he may have told the plaintiff, 'There's no way it could be hung up.'

Also, on probably what was that same Friday, the supervisor of A & P, Mr. C. W. Miller, went to the bank to talk with the manager Mr. Bryan about the deposit in response to instructions from the auditors of A & P in New Orleans. Mr. Bryan opened the night deposit vault and looked up into the chute, and then went outside and dropped a bag of coins down the chute in an attempt to dislodge anything that might be hung up. The missing deposit was not found. Mr. Miller asked Mr. Bryan if there was 'any possible way to help us be assured that it wasn't hung up in that night depository.' According to Mr. Miller's testimony, Mr. Bryan indicated that 'he'd investigated it and dropped those sacks of change through there, and he couldn't see how it was hung up in there.'

The next day, Saturday, August 5, the plaintiff was requested by his supervisor, Mr. Miller, to take his two-week vacation and turn in his store keys. In his absence, the locks on the store doors were changed; five auditors came in and audited the books, inventoried all stock in the store, and audited the books again. The plaintiff worried himself sick during his vacation, wondering what had happened to the deposit. He could not sleep at night. He and his wife went to Texas, but after two days he had to return to see if he could find out more about the deposit. When the plaintiff returned to work, the supervisor had transferred him to another store as assistant manager, giving as the reason that it was due to the 'troubles' in the store.

The evidence is not clear, but there is some evidence to indicate that additional searches of the night depository system were made by other employees of the branch bank.

Several weeks later, the A & P auditor in New Orleans called the bank's auditor in Jackson, Mr. Hugh Pierce, in an attempt to locate the missing deposit. On August 24, 1972, Mr. Pierce and an assistant auditor, Mr. Rod Carney, came to the bank to inspect the night deposit system. They opened the depository from the inside. Mr. Pierce lay down on his back and stuck his head in the vault. Mr. Carney went on the outside and opened and closed the door and worked the mechanism. They saw nothing. They then reversed the procedure with Mr. Pierce going outside and Mr. Carney staying inside. After about fourty-five minutes Mr. Carney caught a glimpse of 'something.' They bodh looked closer. Mr. Pierce testified, 'There was a slight opening in the mechanism, and he pointed out to me and we looked closer; and I said that possibly could be fabric of some sort that we could see.' Mr. Pierce immediately called the manufacturer, Diebold, Inc., to send someone out to dismantle the mechanism.

Mr. Lloyd Magee, the representative of Diebold, Inc., came to the bank and brought the service manager with him. Within twenty minutes they removed the depository head and found the missing deposit bag trapped between the flipper plate and the back plate of the hopper. Mr. Magee testified that he had never seen a bag get caught completely behind the flipper plate as this one had, but that when using a drawstring bag, it is 'very easy for either the ball on the end of the string, or the string itself to become snared at the edge of the flipper plate and hang, and when the flipper plate comes back to his home position, it will throw it right behind the flipper plate.' The evidence did show, however, that deposits had been known to get lodged in night deposit boxes.

The information of the discovered deposit was immediately conveyed to the plaintiff by the bank's branch manager, Mr. Bryan.

In the meantime, the plaintiff had suffered physical and mental pain as a result of his worrying about the missing deposit. He had been referred to a psychiatrist, Dr. W. L. Waldron, who testified that the physical and mental problems of the plaintiff continued even after the deposit was found. He stated that the plaintiff suffered from...