Worthen Bank & Trust Co. v. Adair

• Decision Date: 05 June 1985
• Docket Number: No. CA,CA
• Citation: 15 Ark.App. 144,690 S.W.2d 727
• Court: Arkansas Court of Appeals
• Parties: WORTHEN BANK & TRUST CO., Appellant, v. Beverly F. ADAIR, Appellee. 84-117.

Page 727

690 S.W.2d 727

15 Ark.App. 144

WORTHEN BANK & TRUST CO., Appellant, v. Beverly F. ADAIR, Appellee.

No. CA 84-117.

Court of Appeals of Arkansas,

En Banc.

June 5, 1985.

Rehearing Denied June 26, 1985.

Fred E. Bosshart, N. Little Rock, for appellant.

William Issacs, Fayetteville, for appellee.

MAYFIELD, Judge.

In this case the appellant, Worthen Bank, filed a complaint against John and Beverly Adair to collect $3,070.87, alleged to be the unpaid balance due on charges made on a Visa card issued by the bank. John was never served with summons, but service was obtained on Beverly and she filed a motion to dismiss. The motion contained allegations that she had never received a credit card from the bank, that the complaint was apparently based on an open account but no verified accounting was supplied, and that the only exhibit attached to the complaint clearly indicated that she had no contractual liability for the account sued upon.

A response to the motion to dismiss denied most of the allegations of the motion and stated that the proper way to obtain a verified and itemized statement of the account was by motion for a more definite statement. However, an amendment to the complaint was filed the same day and attached to it were picture copies of the appellant's records showing itemized charges made to the Visa card account and a running total of the amount due.

Eventually the case came on for trial before the judge without a jury and without any hearing on the motion to dismiss. The appellant's only witness was the supervisor of the bank's recovery department who was also the keeper of its records. The witness testified he was familiar with the Visa charge accounts and he identified the application for the Visa card to which the amounts sued for were charged. This application is a form signed by John Adair as the applicant. It contains information about his employment, income, and credit references. About two-thirds of the way down from the top of the form are two boxes. One is to be checked if another person will be liable upon or permitted to use the bank card account. That box is not checked. The other box is to be checked if the applicant is relying on another person's income in paying the bank card account. That box is checked. However, at the bottom of the form, under the signature of the applicant, on a line designated "other signature," there is the apparent signature of Beverly Adair. Underneath that signature line the form states, "Only if also to be contractually liable." There was no evidence introduced to show the relationship between John and Beverly.

Counsel for appellee, Beverly Adair, objected to the introduction of this application into evidence and the judge stated he would sustain the objection unless there was some evidence that her apparent signature was actually made by her. No such evidence was offered and the appellant rested. The judge then stated that the appellant had failed to prove its cause of action and that the complaint was dismissed. An order signed by the judge concludes with the following paragraph:

The plaintiff proceeded to present its case against Beverly F. Adair and at the conclusion of the plaintiff's case, the defendant moved to dismiss for failure to present a prima facie case. After an examination of the pleadings filed herein and after listening to the testimony provided by the plaintiff, the court finds that the defendant's motion to dismiss should be and hereby is granted, and the plaintiff's cause of action as against Beverly F. Adair is dismissed in all respects with prejudice.

On appeal, the bank makes three arguments. It first says the court erred in dismissing its complaint because of Ark.Stat.Ann. § 28-202 (Repl.1979) which provides that in suits on accounts "the affidavit of the plaintiff, duly taken and certified according to law, that such account is just and correct, shall be sufficient to establish the same, unless the defendant shall, under oath, deny the correctness of the account...." See also Walden v. Metzler, 227 Ark. 782, 301 S.W.2d 439 (1957); Rice v. Kroeck, 2 Ark.App. 223, 619 S.W.2d 691 (1981). The appellant contends that its amendment to the complaint with the attached copies of the itemized charges made to the Visa card account, plus the original complaint which contained a verification subscribed and sworn to before a notary public, made a prima facie case, under the authority of the statute and cases cited above, since the appellee did not deny the correctness of the account under oath.

The problem is that the copies of the itemized charges all show they were made to John Adair. This may have made a prima facie case against him but no such case was made against Beverly. We have some doubts as to the case against John because the verification of the original complaint would not seem to be sufficient to verify a subsequent amendment to the complaint, and because the itemized charges did not list the various items purchased but listed only the name of the business that supplied the item or service purchased. See Griffin v. Young, 225 Ark. 813, 286 S.W.2d 486 (1956), and Everett v. Parts, Inc., 4 Ark.App. 213, 628 S.W.2d 875 (1982). But in any event, it seems clear that the itemized charges against John did not make a prima facie case against Beverly. In Starlight Supply Company v. Feris, 462 S.W.2d 608 (Tex.Civ.App.1970), the court said:

The rule which makes a verified account prima facie evidence unless a written denial under oath in conformity with Rule 185 is filed does not apply to or cover transactions between third parties who were strangers to the transaction. (Citations omitted.)

It matters not that Appellant has pleaded that Appellee owes the account. As stated in Copeland, above, where an obligation alleged in the pleading does not conform to the writing exhibited as a basis thereof, the document rather than the pleading controls.

And in Lee v. McCormick, 647 S.W.2d 735, 740 (Tex.Civ.App.1983), the court said it is well established that "a verified account is not prima facie evidence, even in the absence of a written denial under oath, as to transactions between the plaintiff and third parties, or plaintiff and parties who were strangers to the original transaction."

Another argument made by the appellant is related to the one just discussed. This contention is that the trial judge erred in refusing to allow appellant to introduce into evidence monthly statements issued on the Visa account. These proffered statements are addressed to John Adair and do not show or make reference to the name of Beverly Adair at any place. Just as the itemized account charged only to John Adair did not make a prima facie case as to Beverly Adair, the monthly statements addressed only to John were not admissible into evidence in the trial of the case against Beverly.

Appellant's third argument on appeal is that the application was admissible into evidence even though there was no testimony that the apparent signature of Beverly was actually made by her. The appellant relies upon Ark.Stat.Ann. § 28-927 (Repl.1979) which reads as follows Where a writing, purporting to have been executed by one of the parties, is referred to in, and filed with, a pleading, it may be read as genuine against such party, unless he denies its genuineness by affidavit before the trial is begun.

In J.R. Watkins Med. Co. v. Montgomery, 140 Ark. 487, 215 S.W. 638 (1919), the court held the above statute allowed a written instrument to be introduced into evidence where it met the conditions of the statute but held that the genuineness of the signature could be questioned by evidence and this would make a fact question for the jury; however, the burden would still be on the plaintiff to establish its case by a preponderance of the evidence. Accord Callaway v. Ashby, 192 Ark. 929, 95 S.W.2d 907 (1936).

In the instant case we believe the application containing the apparent signature of the appellee, which was attached as an exhibit to the complaint, was admissible as the appellee did not deny the genuineness of the signature by an affidavit before trial. However, this does not mean that the trial court erred in dismissing the appellant's complaint. According to the order signed by the judge, the action he took in dismissing the complaint was, in effect, the granting of a motion by appellee for a directed verdict. In Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 464, 642 S.W.2d 877 (1982), the Arkansas Supreme Court said:

In determining on appeal the correctness of the trial court's action concerning a motion for a directed verdict by either party, the test is to take that view of the evidence that is most favorable to the party against whom the verdict is sought and to give it its highest probative value, taking into account all reasonable inferences deducible from it, and to grant the motion only if the evidence viewed in that light would be so insubstantial as to require that a jury verdict for the party be set aside. Dan Cowling and Associates v. Clinton Board of Education, 273 Ark. 214, 618 S.W.2d 158 (1981) (Emphasis added.)

We think the trial judge was correct in granting the appellee's motion for directed verdict because he would have had to set aside a verdict for appellant, if one had been returned in its favor, because that verdict would not have been supported by substantial evidence. We think this is true because the application is ambiguous, because it was...