Thornton v. Athens Nat. Bank

• Decision Date: 14 May 1923
• Docket Number: (No. 961.)
• Citation: 252 S.W. 278
• Parties: THORNTON v. ATHENS NAT. BANK.
• Court: Texas Court of Appeals

252 S.W. 278

THORNTON v. ATHENS NAT. BANK.

(No. 961.)

Court of Civil Appeals of Texas. Beaumont.

May 14, 1923.

Rehearing Denied May 23, 1923.

Appeal from District Court, Henderson County; W. R. Bishop, Judge.

Action by Wiley Thornton against the Athens National Bank. Judgment for defendant, and plaintiff appeals. Affirmed.

J. J. Faulk and A. B. Watkins, both of Athens, for appellant.

Phillips, Townsend & Porter, of Dallas, and Sam Holland, of Athens, for appellee.

O'QUINN, J.

Thornton sued the bank to recover the sum of $5,000, the value of Liberty Bonds which he had deposited with the bank for safe-keeping in 1918, and which were forcibly taken from the bank by robbers on July 13, 1920. Plaintiff alleged that he had been a regular customer of the bank for more than 10 years, depositing his money and valuable papers therewith; that he had complete faith in the business ability and integrity of the defendant and its officers and employés; that in 1918 he deposited Liberty Bonds, in the sum of $5,000, with the defendant for safe-keeping; that defendant issued to plaintiff its receipt for said bonds, to the effect that same had been deposited with defendant for safe-keeping, and obligating itself to return same to plaintiff upon the return of said receipt; that said bonds were United States unregistered bonds, payable to bearer; that he had demanded said bonds, and defendant had failed and refused to deliver same; that about June 10, 1920, plaintiff instructed defendant and its agents and officers to have said bonds exchanged for other and new bonds of the United States, which they agreed to do, but which they neglected to do, and but for which neglect said bonds would not have been lost at the time of said robbery.

Defendant answered by general denial and specially under oath: (1) That it did not obligate itself to safely keep said bonds; (2) that it did not agree to exchange said bonds for new ones; (3) that it not only did not make any agreement to exchange said bonds for new ones, but that there was no consideration for any such agreement; (4) that the bank received no consideration for the keeping of said bonds, but that the act of receiving said bonds for safe-keeping was entirely gratuitous, and without consideration; (5) that on July 13, 1920, at the noon hour, and while the bank was open for business, bank robbers forcibly took possession of and carried away from the bank the bonds in question, together with other bonds and money in the bank; (6) and that defendant had exercised due precaution in its effort to safely keep said bonds and other property in its possession, and was guilty of no negligence.

The case was submitted to a jury upon the following special issues:

"First. Were the bonds deposited by the plaintiff in the bank, left there with the understanding that the bank collect the interest coupons as they became due and deposit the amount collected to the credit of plaintiff?"

To which the jury answered, "No."

"Second. Did the plaintiff request the bank and did the bank agree to exchange the bonds for permanent coupon bonds?"

To which the jury answered, "No."

"Third. Did the employés of the bank exercise such degree of care as an ordinarily prudent person would under the same circumstances to protect the bonds from loss by robbery?"

To which the jury answered, "Yes."

"Fourth. Did the employés of the bank exercise only such slight degree of care as to justify the belief that they were indifferent to the interest of the plaintiff and those for whom he acted in depositing the bonds, to protect the bonds from loss by robbery?"

To which the jury answered, "No."

Upon the answers of the jury judgment was rendered for appellee, from which appellant has appealed.

Appellant groups his first four propositions, presenting, as we understand his brief, the liability of appellee under the contract evidenced by the receipt given by appellee for the deposit of the bonds, and insists that appellee, by reason of said receipt, became and was an insurer of the safety of the bonds, and could discharge its liability to appellant only by returning the bonds or by the payment of their value, urging (in his written argument) that —

"Where a party by his own contract in writing, as the bank has done in this case, creates a duty or charge upon himself, he is bound to make it good, although the accident may have been inevitable and beyond his power to prevent, for the very good reason that he might or had an opportunity to provide against them by his own contract, but chose not to do so. The bank made a contract with Thornton to safely keep his bonds and return them to him, without any qualification, limitation or exception, and it must abide by its contract by either returning the bonds or paying damages."

We cannot agree with appellant in this contention. It is true that a bailee may, by special contract or agreement, enlarge his liability so as to become an insurer of property bailed, but to what extent an agreement to keep or safely carry actually varies the general implied obligations of a bailee, and for what casualties under such agreement he is rendered liable, and for what excused, it does not seem possible to lay down any general rule. The only rule to be adduced from the authorities would seem to be not to expound the contract unfavorably to the bailee beyond the obvious scope of its terms. Story on Bailments, §§ 35, 36. Does the agreement upon which appellant relies (the receipt) show that appellee obligated itself as an insurer? The bonds were deposited in four parcels, amounting to $5,000, and the receipt in each instance was the same, varying only as to the amount deposited, and worded as follows:

"Wiley Thornton has deposited in this bank $2,000 government bonds bearing interest at 4¼ per cent. The above bonds are left for safe-keeping and are the property of said Wiley Thornton, and are to be delivered to him or his assigns upon return of this receipt. March 16th, 1918.

                            "By I. P. LaRue, Cashier."
                

We do not think that the receipt was an agreement to absolutely produce the bonds or to pay their value, but rather that it merely evidenced the receipt of the bonds by the bank and the purpose for which they were deposited. Whitney v. Bank, 55 Vt. 155, 45 Am. Rep. 598; Bank v. Graham, 79 Pa. 106, 21 Am. Rep. 49; City of Healdsburg v. Mulligan, 113 Cal. 205, 45 Pac. 337, 33 L. R. A. 461.

In Whitney v. Bank, supra, Whitney deposited United States bonds with the bank for safe-keeping, the bank giving him the following receipt:

"The National Bank of Brattlesboro, Brattlesboro, Vt., July 23, 1866. Received of J. D. Whitney $4,000 for safe-keeping, as a special deposit.

                                               S. M. Waite, C."
                

The bonds were deposited in the bank's safe, with the valuables of the bank, and it was claimed that the bonds were taken therefrom by robbery. The safe was left open during the business hours for the transaction of business, and only one person was left in charge of the bank during the noon hour. The trial court charged the jury that there was evidence of a special agreement to keep the bonds safely. But the Supreme Court said:

"But, as has been intimated, the leaving the bonds for `safe-keeping,' or accepting them for that avowed purpose, is not a covenant or warranty that the defendant will protect the bonds absolutely from all danger, or indemnify the plaintiff against loss, but is rather a declaration of the purpose of the parties in placing them in the defendant's safe, and giving the protection and immunity which the means of safety in the bank afforded like securities of the defendant."

It was held that the bank was a gratuitous bailee, and therefore liable only for gross negligence, and that the evidence did not show gross negligence.

In the case of Bank v. Graham, supra, the plaintiff deposited $4,000 in United States bonds with the bank, and received the following receipt:

                         "Carlisle, Pa., October 22d, 1868
                

"Miss F. L. Graham has left in this bank, for safe-keeping, four thousand dollars in U. S. 5-20 bonds of 1867, to be returned on the return of this receipt.

                               "Charles H. Hepburn, Cashier."
                

When plaintiff demanded the bonds they were not delivered to her, the officers of the bank informing her that they had been stolen from the vault of the bank with other valuables belonging to the bank. The receipt given for the bonds in this case, as in the case at bar, recites that the bonds were "left for safe-keeping," and that they were "to be returned on the return of this receipt." We take it that the terms, so far as indicating purpose and liability are concerned, are identical. The trial resulted in a judgment for the plaintiff, but the Supreme Court reversed the judgment, and held that the bank was a gratuitous bailee and liable only for gross negligence.

City of Healdsburg v. Mulligan, supra, was an action brought upon the official bond of Mulligan as treasurer of the city of Healdsburg to recover $3,541.49, which it was alleged he had received and refused to pay over, but had converted to his own use. Defendant pleaded, and it was not, as a matter of fact, disputed, that he was compelled, at the hour of 4 a. m., by robbers, by force and against his will, to open the vault of the safe furnished him by the city in which to keep said funds, and that said money was forcibly taken by the robbers. Mulligan had executed an official bond, conditioned:

"Now, therefore, the condition of this obligation is such that if the said George V. Mulligan shall well and faithfully perform all official duties now required of him by law, and shall well and faithfully execute and perform all the duties of such office of treasurer, * * * then this obligation is to be void and of no effect; otherwise, to remain in full force and effect."

An ordinance of the city provided:

"It shall be the duty of the treasurer to receive and safely keep all...