Mulenix v. Fairfield National Bank of Fairfield
| Decision Date | 21 June 1926 |
| Docket Number | 37083 |
| Citation | 209 N.W. 432,203 Iowa 897 |
| Parties | A. B. MULENIX, Appellee, v. FAIRFIELD NATIONAL BANK, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 7, 1927.
Appeal from Jefferson District Court.--E. S. WELLS, Judge.
Action in trover, for the conversion of certain liberty bonds deposited by plaintiff with the defendant bank for safe-keeping. Verdict and judgment for the plaintiff, and defendant appeals.
Affirmed.
Thoma & Thoma, for appellant.
No appearance for appellee.
STEVENS J. DE GRAFF, C. J., and FAVILLE and VERMILION, JJ., concur.
I.
This is an action to recover the value of certain liberty bonds which appellee alleged were deposited with the Fairfield National Bank, at Fairfield, Iowa, for safe-keeping, and which the bank is alleged to have converted to its own use. After the action was commenced, and before the trial, a receiver was appointed for the bank. The answer to the petition was filed by the receiver. The deposit by appellee of liberty bonds of the aggregate face value of $ 750 in the Fairfield National Bank on January 13, 1920, for safe-keeping is admitted. The bonds were placed in an envelope by the cashier, and put in the compartment of the safe in which the funds of the bank were kept. Appellant, for answer to the petition, alleged that, if any bonds were deposited in the bank by appellee for safe-keeping, same were returned to him, and denied the allegations in the petition charging the conversion of the bonds. By way of an amendment to the answer, appellant alleged that the deposit of the bonds in the bank for safe-keeping was gratuitous, and that, if the said bonds were appropriated or converted by anyone while they were in the possession of the bank, it was by an employee or employees thereof, without any fault or negligence upon the part of the bank or its officers.
A motion to strike the amendment to the answer was sustained. This ruling is assigned as error. All of the employees, directors, and officers of the bank were called as witnesses, and denied that they had any knowledge whatever of the misappropriation of the bonds by the bank or of the conversion thereof by it or any of its employees. Appellant also sought to show by the officers of the bank that they had never had occasion or cause to suspect or question the integrity of any of the bank's employees. This testimony was, upon objection of counsel for appellee, excluded.
The amendment to the answer apparently proceeded on the theory that it was a good defense for appellant to show that the bonds were not lost by the negligence of the officers or employees of the bank. In view of the theory upon which appellant tried the case,--that is, that the bonds were in fact returned to appellee,--we do not deem it necessary to pass upon the question as to whether or not freedom from negligence might ever be available to a gratuitous bailee as a defense to an action charging conversion. If it were conceded that the ruling of the court on the motion to strike the amendment to the petition was erroneous, this court would, nevertheless, be compelled to hold that the ruling was without prejudice.
No authorities are cited on the point except Kubli v. First Nat. Bank, 199 Iowa 194, 200 N.W. 434. The cause of action pleaded in that case was based solely upon negligence, and nothing said therein is in point here. The record will be more fully stated in another subdivision of this opinion. The evidence offered as to the character of the bank's employees tended only to establish the bank's freedom from negligence in the selection of its employees, and was, therefore, not relevant to any issue involved. Furthermore, the ruling of the court excluding the evidence was without prejudice to appellant.
II. At the conclusion of all of the evidence, appellant moved the court for a directed verdict, upon the ground that the evidence was insufficient to sustain a verdict for appellee. The specific points of the motion were that the evidence wholly failed to show that any demand was made by appellee on the bank for the bonds, prior to the commencement of this action; that the bank conclusively established its freedom from negligence in caring for the bonds; that no evidence of the value thereof was introduced by appellee; and that there is a total absence of evidence to establish the charge of conversion.
We will dispose of the several grounds of the motion in the order stated. Conversion is any distinct act of dominion or control wrongfully exerted over the chattels of another, in denial of his right thereto. Brown v. Dubuque Altar Mfg. Co., 163 Iowa 343, 144 N.W. 613; Lee v. Coon Rapids Nat. Bank, 166 Iowa 242, 144 N.W. 630; Peninsular Bank v. Citizens Nat. Bank, 186 Iowa 418, 172 N.W. 293.
The receipt of the bonds by the bank is admitted, and the evidence disclosed that they were at all times, while in the possession of the bank, kept in the safe to which the employees of the bank had access.
It is admitted that, on or about April 3, 1920, appellee requested the cashier to give him the bonds. The cashier testified that he went to the safe and took therefrom the envelope containing the bonds, and that he believed, and was quite certain, that he then delivered them to appellee. An employee of the bank who was present corroborated the testimony of the cashier, except as to the delivery of the instruments to appellee. Both the cashier and the employee testified that appellee was asked for the receipt which was given him for the bonds when deposited, and that he stated he did not have it with him, and that the cashier then said, in substance "You may, or will, have to mail or send them to the bank." Appellee categorically denied that the bonds were, on the occasion mentioned, returned to him. The employee of the bank above referred to also testified that she did not remember having seen the bonds in the safe subsequent to the above transaction. There was evidence of a somewhat indifferent character of a further demand for the bonds. No other transaction is referred to by any of the officers connected with the bank in which it is claimed they might have been returned to appellee. Except as stated, the bank was unable to account for the disappearance of the bonds and their failure to return the same upon...
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