Takoma Park Bank, Inc. v. Abbott

• Decision Date: 09 April 1941
• Docket Number: 3.
• Citation: 19 A.2d 169,179 Md. 249
• Parties: TAKOMA PARK BANK, Inc., v. ABBOTT.
• Court: Maryland Court of Appeals

19 A.2d 169

179 Md. 249

TAKOMA PARK BANK, Inc., v. ABBOTT.

No. 3.

Court of Appeals of Maryland

April 9, 1941

Rehearing Denied June 10, 1941.

Appeal from Circuit Court, Carroll County; Francis Neal Parke and Wm. Henry Forsythe, Jr., Judges.

Action by LeRoy Abbott against the Takoma Park Bank, Incorporated for loss of property placed in a safe deposit box in vault of defendant bank. From an adverse judgment, defendant appeals.

Affirmed.

William D. Macmillan, of Baltimore (Leonard J. Ganse, of Washington, D. C., D. Eugene Walsh, of Westminster, and Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellant.

James E. Boylan, Jr., of Westminster (William C. Sullivan, of Washington, D. C., on the brief), for appellee.

Argued before SLOAN, JOHNSON, DELAPLAINE, and COLLINS, JJ.

COLLINS Judge.

The appellee, LeRoy Abbott, recovered a judgment against the appellant, Tokoma Park Bank, Inc., in a jury trial, in the Circuit Court for Carroll County, in the amount of $50,500 for the loss of fifty $1,000 gold certificates and five $100 notes which he had placed in a safe deposit box in the vault of the appellant bank, which he had rented from it, and which he alleged was abstracted therefrom as a result of negligence and default of the appellant, in not using reasonable care and diligence in guarding and safe keeping said box. The appeal is taken from that judgment. Twenty-five exceptions were taken by the appellant to the rulings of the trial court. A part of the testimony follows.

LeRoy Abbott, the appellee, testified on direct and cross examination that in 1919 he married Bassie M. Weber from whom he was separated in 1936. Sometime in the fall of 1925 or 1926, his aunt, Carrie Points, came to his office and handed him an envelope and told him to put it away for future use that she was so glad that he was improving himself in his line of business and to see that he was climbing up the ladder instead of going down, and when she handed him this envelope, she told him to put it away until a future date, that he was too young to appreciate its value. He further stated that several times he and his wife had been separated, and that Carrie Points would come and give him a lecture like a mother would, and if he was busy in the office, she would hand him a note for him to read and go on away. He took the envelope home and kept it in his cupboard until he acquired a gasoline station at 14th and Quincy Streets, Washington, and at that time, he put it in an iron safe at that place. On the 14th of July, 1936, he and his wife separated and about that time, in looking for some insurance policies, he came across the envelope which was of heavy manila paper, brown, and had two little seals on it and sealing wax. He opened the envelope and found in it fifty $1,000 bills, gold certificates, an earring, a diamond ring and a note. The note, from his aunt, Carrie Points, related that Gene's father had practically raised the family but that he had gotten the boys all their jobs, and that she thought he was justly entitled to it to repay for what he had done for his mother and family since he had been working. The note further indicated that the money had come from a safe deposit box which she and her sister, Nancy Hobbs, had in Baltimore. He further testified that Carrie Points died in 1927, and at that time she was rooming in a rooming house in N.E. Washington, and that she had formerly lived with her son-in-law, William Towers, a grandson and her daughter. Nancy Hobbs was his father's sister who at one time lived in Baltimore and then went back to Philadelphia to live where she died. He stated that when he opened the envelope in July, 1936, this was the first time he knew about the money being in the envelope and he then decided to sell the store, which he later did. In payment, he received a note, a check for $3,762, some cash, and a boat, He testified that he had a man working for him in his store, James Payne, who asked him three or four times why he was selling the business; that Payne said it was a good paying business and wanted to know why it was being sold. He took Payne upstairs and went in the cupboard and opened the safe and got out the box, opened the envelope, counted the money and showed it to Payne. He resealed the envelope and put it back in the box and he did not open it again until on August 17th when he went to the bank. James Payne later testified that he saw the envelope containing the fifty $1,000 gold notes. Appellee further testified that he had previously had checking and savings accounts with the Takoma Park Bank, appellant. On August 17, 1936, after he had sold his business, he went to the appellant bank, deposited $2,762 to his checking account and the bank book offered in evidence proved this deposit, and received from the cashier ten $100 bills. He then opened a savings account with a deposit of $200. He stated that the reason he did not deposit the gold certificates was because of the trouble he had with his wife and he was afraid that she would find out that he had this money. He further stated that he did not know at that time that the bills or gold certificates should be turned in to the Treasury and exchanged. After making the deposit, he went to the safe deposit box department where the woman attendant in charge is behind a grille. He was admitted by this attendant and he rented a box for three years and stated that he was going to leave Washington and did not know exactly when he would be back. He further testified that he placed in the safe deposit box the $1,000 he had received from the cashier and the envelope containing fifty $1,000 gold certificates, an earring and a diamond ring. He signed a contract of rental which provided that no one other than the renter shall have access to the safe deposit box. The woman attendant came back with the receipt signed H. Funkhauser, and at that time he had finished putting his personal belongings and other things into the safe deposit box and she put the box in the vault, gave the key a turn and handed him two keys to the box. He stated that the safe deposit box was black metal, two or three inches high, about four inches wide and about eighteen inches long. It had a little hook on one end and the lid was hinged.

He visited the bank at various times and entered his safe deposit box. He was not able to give the exact amounts and dates, but took out $100 or whatever he needed at that particular time, and the last time he saw the box was on November 30, 1937.

As to the visit to the bank on November 30, 1937, the appellee's testimony follows: On that date he went to the bank and after the attendant had used the guard key and his key, his safe deposit box was handed to him by the attendant, and he went to a table behind the grille and in front of the vault, and one gentleman was standing at the end of the table, because of which, he used the end nearest the vault door and took out $200. He then counted the bills in an envelope and there were $500 left, and at that time the envelope was in the box containing fifty $1,000 bills, an earring and a diamond ring. He left the gentleman standing there, put the box away in the depository, locked it and the attendant was at the door and let him out of the safe deposit box room. He then walked over to a line and waited for a couple of people to make deposits and put his deposit through the window and turned around and walked on out. His bank book offered in evidence shows a deposit on that date.

He further said that on December 13, 1937, he went to the Morris Plan Bank and saw a Mr. Collegeman and asked him if he could dispose of one of the $1,000 gold certificates. He was asked how many of these certificates he had and when told he had fifty, he was advised to get counsel. Pursuant to that advice, that afternoon he called Henry F. Woodward, an attorney, and was advised to go to the bank on the morning of the 14th to get the box and take it to him and he would take it to the Treasury. On December 14, 1937, appellee went to the bank to the door leading to the safe deposit box room, and rang the bell, and while he was signing the register, the lady took his key and opened the safe deposit door and as he turned around from registering, she had the door open and she said, 'there is no box there, you must have left it outside in one of the booths.' The attendant called the assistant cashier, a Mr. Gates, who asked him what had happened to the box, and appellee told him that he did not know. Gates asked what was in it and also asked him why he came to the bank so early in the morning. Appellee then told him that he had seen Woodward, his attorney, the night before and he sent him to get the package. The official asked what the box contained and appellee replied that he would like to get in touch with his counsel and see what he says to tell you. Gates called Mr. Woodward on the telephone, and appellee talked to Woodward and was told to give the official a full list of the contents of the box. He then gave him a list of the contents, which were fifty $1,000 bills, gold certificates, five $100 bills, a diamond earring, a finger ring, some insurance papers and a couple of old income tax reports.

The next morning appellee and Mr. Woodward went to the bank and saw Mr. Gates, and Woodward was shown the registry of the safe deposit boxes, and Woodward related to Gates that Abbott had told him about the gold certificates and that he suggested to Abbott to go to the bank the next morning and get from the safe deposit box the $50,000 in gold certificates and bring them to him, and he would take them to the Treasury Department and explain why they had not been turned in. Woodward then asked to see one of the officials of the...