Pastis v. Cobb Exchange Bank

Decision Date09 June 1977
Docket NumberNo. 2,No. 53956,53956,2
Citation142 Ga.App. 519,236 S.E.2d 279
PartiesJohnny L. PASTIS et al. v. COBB EXCHANGE BANK
CourtGeorgia Court of Appeals

Stanley H. Nylen, Atlanta, for appellants.

Downey, Cleveland & Moore, Lynn A. Downey, Joseph C. Parker, Marrietta, for appellee.

QUILLIAN, Presiding Judge.

This is an appeal from a jury verdict and judgment in favor of the plaintiff bank in a suit upon a note. The Cobb Exchange Bank filed a complaint against Johnny L. Pastis and Mary R. Pastis on a note in the amount of $23,503.87, plus interest, costs of collection and attorney fees. Defendants filed a denial and counterclaim in the amount of $105,000. The jury found for the plaintiff bank in the amount of $26,496. The court entered judgment for the plaintiff in that amount and defendants appeal. Held :

1. Plaintiffs filed a motion to dismiss defendants' appeal on the ground that their enumeration of errors was not filed within the requisite 20 days after docketing of the appeal in this court. The motion is denied, as Rule 14(a), of this court (Code Ann. § 24-3614(a)), provides: "Failure to file the enumeration of errors within the time specified in these rules shall subject the offender to contempt. Failure to comply with an order of this court directing the filing of the enumeration of errors shall cause the appeal to be dismissed." This court did not issue an order to defendants to file their enumerations of error. Thus, the appeal is not subject to dismissal. See Worthington Financial Services v. Ivey, 135 Ga.App. 577, 218 S.E.2d 640.

2. Defendants enumerate as error a denial of their request for a directed verdict and also contend the verdict was contrary to the evidence. As these allegations address the sufficiency of the evidence they will be discussed together.

The defendants stipulated into evidence a prima facie case on the note due the bank, that is defendants executed the note, the contents are correct, and the amount stated in the complaint is due and owing. This leaves in issue only the sufficiency of the evidence to support the counterclaim.

The counterclaim was predicated principally on the testimony of the defendants, Johnny L. Pastis and his wife Mary, that he had rented a safe- deposit box from the plaintiff bank on December 5, 1972 and had placed therein $105,000 in cash on December 7, 1972. He had given his key to the box to his attorney. He had the safe-deposit box drilled open on September 11, 1973 after he had gone to the attorney for the key and was informed that it had been misplaced. When the safe-deposit box was opened it contained only one rubber band. The defendant testified that a bank vice-president assisted him in placing the money in the box and was present when the box was opened and exclaimed: "Johnny, I swear to you, I don't know what's happened." The bank officer denied both allegations.

Defendant, citing Buena Vista Loan & Savings Bank v. Bickerstaff, 121 Ga.App. 470(1), 174 S.E.2d 219, cert. den., contends the relationship between a bank and a customer who has rented a safe-deposit box therein in which he places valuables, is that of a depositary for hire. Buena Vista distinguishes Tow v. Evans, 194 Ga. 160, 163, 20 S.E.2d 922, 924 which held that "(w)here a banking corporation leases to its customer a safety-deposit box in the bank's vault, the relation of lessor and lessee arises." We concur with the opinion in Buena Vista that "the mere labeling of the relationship" such as "lessor-lessee" is not fully dispositive of the duty of a bank to its customer "for a mysterious disappearance of the contents" of a rented safe-deposit box. Whatever label is attached to this transaction, under the factual setting of this case, we find the law of bailment applies. Buena Vista Loan & Savings Bank v. Bickerstaff, 121 Ga.App. 470, 474-475, 174 S.E.2d 219, supra. "Depositaries for hire are bound to exercise ordinary care and diligence . . . " Code § 12-404. "In all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper diligence." Code § 12-104. This burden on the bailee is regarded as a presumption of negligence, a rebuttable inference, thus requiring him to produce evidence of care and diligence to negate the presumption. Buena Vista Loan & Savings Bank v. Bickerstaff, 121 Ga.App. 470, 476, 174 S.E.2d 219, supra.

It would be extremely difficult to paraphrase the evidence in this extensive transcript of 564 pages. Suffice it to say that it is lengthy and conflicting. Questions of credibility arose as to some of the witnesses. However, the evidence clearly showed the bank's policy and procedure for persons to gain access to the vault and the safe-deposit boxes. "Where some evidence of this nature is adduced in the trial of a case, whether the bailee has overcome the rebuttable inference (of negligence) would ordinarily be a matter for jury determination." Buena Vista Loan & Savings Bank v. Bickerstaff, 121 Ga.App. 470, 476, 174 S.E.2d 219, supra. The jury heard, construed, and resolved the evidence presented to it and was properly instructed as to the law. On appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury's verdict. Boatright v. Rich's, Inc., 121 Ga.App. 121(1), 173 S.E.2d 232. Where the evidence of the plaintiff and defendant is in conflict, the jury is the final arbiter. Smith v. Hornbuckle, 140 Ga.App. 871, 875, 232 S.E.2d 149. There is sufficient evidence to support the verdict and the court did not err in denying the motion for a directed verdict for the defendant.

3. In their amended...

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3 cases
  • In re Stone & Webster, Inc.
    • United States
    • U.S. Bankruptcy Court — District of Delaware
    • December 16, 2005
    ...inference, thus requiring him to produce evidence of care and diligence to negate the presumption." Pastis v. Cobb Exch. Bank, 142 Ga.App. 519, 236 S.E.2d 279, 281 (1977). Negligence, however, is not the same as conversion. Southern Express Co. v. Sinclair, 130 Ga. 372, 60 S.E. 849, 849 (19......
  • Garner v. Atlantic Bldg. Systems, Inc.
    • United States
    • Georgia Court of Appeals
    • June 9, 1977
  • Jordan v. State
    • United States
    • Georgia Court of Appeals
    • May 13, 1983
    ...after filing a notice of appeal fails to file an enumeration of error or brief within an appropriate time. See Pastis v. Cobb Exchange Bank, 142 Ga.App. 519(1), 236 S.E.2d 279. Having concluded that the actions of Jordan are such as to expose him to a citation for contempt, we next consider......

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