Bullitt County Bank v. Publishers Printing Co.

684 S.W.2d 289, 39 U.C.C. Rep. Serv. (West) 232, 1984 Ky. App. LEXIS 568
CourtCourt of Appeals of Kentucky
DecidedSeptember 7, 1984
Docket83-CA-2201-MR, 83-CA-2452-MR and 80-CI-05476
StatusPublished
Cited by23 cases

This text of 684 S.W.2d 289 (Bullitt County Bank v. Publishers Printing Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bullitt County Bank v. Publishers Printing Co., 684 S.W.2d 289, 39 U.C.C. Rep. Serv. (West) 232, 1984 Ky. App. LEXIS 568 (Ky. Ct. App. 1984).

Opinions

CLAYTON, Judge.

This appeal is from a summary judgment in favor of Publishers Printing Company, Inc., (Publishers) against Bullitt County Bank (Bank). Final judgment awarded Publishers $147,480.85 plus costs against the appellant bank. The ultimate issue to be resolved is whether summary judgment was proper. Intermediate questions necessarily include (1) determining the standard of care to be exercised by the bank when handling checks drawn to its order by a drawer not indebted to that bank and (2) establishing the effect of alleged negligence upon the part of the drawer (Publishers) in its handling of those same checks prior to their tender to the bank and (3) prejudgment interest raised by the appellee Publishers as cross-appellant.

Publishers Printing Company, Inc., is a closely held printing corporation located in Shepardsville, Bullitt County, Kentucky. The majority of its voting stock, 44,600 shares of the 50,000 shares of issued common voting stock, is owned by Frank E. Simon (Simon), President of Publishers. The other two principal officers of the company are James C. Haberman, vice president and secretary, and Karl Gerhard, Treasurer. Simon, Haberman, and Ger-hard composed the Board of Directors during the entire period involved in this litigation.

Since 1964, Publishers had employed William B. Young. Characterized by the parties at different times as a “chief clerk,” “officer manager,” and “trusted employee,” Young’s primary duties at Publishers appear to have consisted of depositing checks to Publishers’ accounts; cashing small checks which he was required to endorse; and ensuring that account balances were maintained. Depositions of the bank’s tellers indicate that the activities Young conducted at the bank consisted primarily of making deposits. Young was not authorized to cash checks payable to Publishers, nor to endorse or divert them. The bank did not permit him to negotiate loans for Publishers, nor to write checks on its [291]*291accounts, nor transfer monies from Publishers’ accounts.

However, from October 22, 1975, through January 18, 1980, Young began presenting checks at the bank drawn on Publishers’ accounts made payable to the bank. Apparently it was a common, though questionable, practice for Simon to leave pre-signed blank checks in Young’s possession to which Haberman or Gerhard would co-sign as a matter of routine. Young would then present these cheeks at the bank requesting that it exchange them for cashier checks made payable to Citizens Fidelity Bank, a Louisville Bank where Young maintained a private account.

The common, and equally questionable, policy of the bank with regard to checks made payable to it and drawn by known depositor’s account to exchange for cashier checks was to negotiate these checks without requiring endorsement. None of the tellers handling these transactions questioned Young about his authority to make such exchanges. Nor did any Bank employee notify Publishers or question it concerning Young’s departure from his ordinary routine of making deposits. They apparently assumed that Young was involved in Publishers’ business with Citizens.

During the period of time involved, annual audits of the records and bookkeeping of Publishers were performed by the national accounting firm of Touche, Ross & Co. through their employee, Whelan, who in 1979 became employed by Publishers. Simon also made it a practice to examine the monthly statements provided by the Bank. Neither Touche, Ross & Co. nor Simon discovered the embezzlement during its commission. Neither raised questions about the checks being made payable to the bank, nor the peculiarity that several of the checks were written ostensibly to purchase postage, which Publishers routinely bought directly from the post office in Louisville, Kentucky.

On June 6, 1980, the proverbial “walls came a tumblin’ down.” Publishers filed a complaint in Jefferson Circuit Court against Young. A subsequent first amended complaint was later filed including First National Bank, Bullitt County Bank, and Citizens Fidelity Bank & Trust Company as additional defendants. Allegations of the amended complaint relating to Bullitt County Bank are that the Bank negligently violated its duty and failed to exercise ordinary care in handling the checks, damaging Publishers in the amount of $350,000 plus punitive damages of $100,000. Bullitt County Bank by answer denies all allegations of duty, negligence, and failure to exercise ordinary care. Affirmative defenses of apparent authority, estoppel, laches, negligence, and statute of limitations have also been raised. Both Publishers and the bank moved for summary judgment in their behalf following the dismissal of First National and Citizens Fidelity upon agreed order of settlement. On June 30, 1982, the Jefferson Circuit Court granted summary judgment on behalf of Publishers thus bringing about this appeal.

I. THE STANDARD OF CARE OF THE BANK.

We begin with an analysis of the nature and extent of the duty owed to Publishers by Bullitt County Bank. In brief, that duty is to exercise good faith and use ordinary care in handling the accounts of its customers. Bank of Southern Maryland v. Robertson’s Crab House, Inc., 39 Md.App. 707, 389 A.2d 388, 391 (1978) [citing Taylor v. Equitable Trust Co., 269 Md. 149, 304 A.2d 838 (1973)]. While the Uniform Commercial Code (U.C.C.) as adopted in Kentucky does not expressly state that a collecting or payor bank is liable for negligently paying on an instrument, numerous U.C.C. provisions indirectly indicate that this is so. These begin with KRS 355.1-103 incorporating the common law rules of negligence into the U.C.C. § 3-419(3); KRS 355.3-419(3) speaks also of limiting recovery against collecting banks for conversion where they have acted in good faith and followed reasonable commercial standards. Section 3-406, dealing exclusively with material alterations and unauthorized signatures, guar[292]*292antees a payor, who has paid in good faith and in accordance with reasonable commercial standards of his business, protection from assertions of material alteration or unauthorized signature by parties whose negligence substantially contributed to his injury. Finally, under § 4-103(1) a bank may not disclaim its own lack of good faith or failure to exercise ordinary care, thus implying that such duties do indeed exist.

Outside the provisions of the U.C.C., further indication of the Bank's duties of good faith and ordinary care can be found in the inherently contractual relationship of a bank to its depositor. See Hileman v. Hulver, 243 Md. 527, 221 A.2d 693 (1966). “Implicit in the contract is the duty of the bank to use ordinary care in disbursing the depositor’s funds.” Bank of Southern Maryland v. Robertson’s Crab House, Inc., supra 389 A.2d at 392 [citing Commonwealth Bank of Baltimore v. Goodman, 128 Md. 452, 97 A. 1005 (1916)].

In situations such as that arising between Publishers and the Bullitt County Bank, the bank’s duty of ordinary care has been effectively summarized,

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Bluebook (online)
684 S.W.2d 289, 39 U.C.C. Rep. Serv. (West) 232, 1984 Ky. App. LEXIS 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bullitt-county-bank-v-publishers-printing-co-kyctapp-1984.