Smith v. Republic Nat. Bank & Trust Co.

• Decision Date: 28 June 1934
• Docket Number: No. 3056.,3056.
• Citation: 73 S.W.2d 552
• Parties: SMITH et al. v. REPUBLIC NAT. BANK & TRUST CO.
• Court: Texas Court of Appeals

73 S.W.2d 552

SMITH et al. v. REPUBLIC NAT. BANK & TRUST CO.

No. 3056.

Court of Civil Appeals of Texas. El Paso.

June 28, 1934.

Error from County Court at Law No. 2, Dallas County; John A. Rawlins, Judge.

Suit by Mable Smith and another against the Republic National Bank & Trust Company. Judgment for defendant, and plaintiffs bring error.

Affirmed.

Edgar Hartsfield, of Dallas, for plaintiffs in error.

Owen T. Lewis and Eugene De Bogory, both of Dallas, for defendant in error.

HIGGINS, Justice.

On March 23, 1931, Mable Smith, an ignorant and illiterate negro woman, deposited $150 in the savings department of the Republic National Bank & Trust Company of Dallas. Clarence Holloway, a negro man, went to the bank with her. The deposit was received by John K. Campbell, an employee of the bank in charge of accepting new accounts.

Because of Mable Smith's inability to read or write, the deposit was made in the name of Wade Erwin, a brother of Mable Smith. Holloway signed Erwin's name upon the signature card and ledger sheet at Mable Smith's request. Campbell did not know Holloway was not Wade Erwin. Campbell thought the man was Wade Erwin. Passbook was issued in the name of Wade Erwin and delivered to Mable Smith. She took the book home and hid it under a mattress. She was a working woman, and during her absence from home the back door was left unlocked. On July 4, 1931, she discovered the book was missing. Upon inquiry at the bank, she ascertained the account had been closed by withdrawals of $145 on March 27, 1931, and $5 on June 27th, and the passbook taken up by the bank. It was shown that Wade Erwin did not make the withdrawals. The receipts for the withdrawals bore the signature of Wade Erwin in the same handwriting as upon the signature card and ledger sheet. J. M. Cott, teller in the bank's savings department, paid out the moneys, but had no independent recollection of the withdrawals. Holloway lived a short distance from Mable Smith and Wade Erwin, and it is very evident Holloway unlawfully obtained possession of the passbook and withdrew the money. The appellants so contend.

The passbook contained certain rules and regulations and among these are the following:

"Notice to Savings Depositors: The Republic National Bank and Trust Company of Dallas will receive deposits in its Savings Department and permit withdrawals thereon on the following terms and conditions, to which the customer assents by using the bank's facilities:

"As the officers and agents of the bank may not be able to identify every depositor, and the possession of the depositor's pass book may, if in improper hands, tend to mislead said officers and agents in making payments, payment made by the Bank to one holding the pass book shall be binding on the owner of the account, unless such owner has, prior to such payment, notified the Bank in writing that the book has been lost, stolen or destroyed, and requested the Bank not to make payment on presentation of said book.

"The personal signature which has been given to the Bank by each depositor or the agent of such depositor on one of its cards used for this purpose, and which corresponds by number with this book, evidences the consent of such depositor to an agreement to be bound by the terms and conditions enumerated above, and such changes, additions, eliminations and variations as may have been, are or shall be duly made thereto."

The bank had no notice of the loss of the book until...