Utts v. Texas State Bank of Canton

Court of Appeals of Texas

Utts v. Texas State Bank of Canton

263 S.W. 620, 1924 Tex. App. LEXIS 1092

CourtCourt of Appeals of Texas

DecidedMay 16, 1924

DocketNo. 2931.

StatusPublished

This text of 263 S.W. 620 (Utts v. Texas State Bank of Canton) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Utts v. Texas State Bank of Canton, 263 S.W. 620, 1924 Tex. App. LEXIS 1092 (Tex. Ct. App. 1924).

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Opinion

BEVY, 3.

(after stating the facts as above). The evidence is'conflicting as to whether the appellant placed $3,000 or $2,500 worth of war savings stamps in the care and custody of the appellee bank for safe-keeping. The appellant claims that he placed in the bank’s custody $3,000 worth of stamps, and the bank claims that it received from the appellant only $2,500 worth. If it be true as a fact, as claimed by the bank, that only $2,500 worth of the stamps was received by it for safe-keeping, then clearly the appellant, as admitted by him, has received back all of his stamps and the bailment was fully terminated. But if it be true as a fact, as claimed by appellant, that he placed $3,000 worth of stamps in the custody and care of the' bank, then admittedly the appellant has not received all of his stamps from the ban£, and the bank -has failed to return $500 worth of the stamps on the appellant’s demand therefor. In this special phase of the case the bank, even as-a gratuitous bailee, was legally bound to return all of the $3,000 if actually placed in the bank, to the appellant on his demand therefor in September, 1920, and the proof by appellant of failure to return part of the stamps, to the extent of $500 worth, establishes a sufficient prima facie case against the bank to put it upon its defense. The fact of failure to return all the property on demand raises the presumption, unless rebutted, of loss through negligence or detention from an inexcusable cause on the bank’s part. As stated:

“If the bailee to whose. possession, control, and care goods are intrusted will not account for the failure or refusal to deliver them on demand of the bailor, the presumption is not violent that he has been wanting in diligence, or that he may have wrongfully converted, or may wrongfully detain them.” Davis v. Hurt, 114 Ala. 146, 21 South. 468.

The bank, in rebuttal, offered in effect the defense that the loss, if any, of the $500 worth of stamps was not occasioned by a lack of due care on its part to safely keep them, nor to any wrongful act on the part of its officers or employees. The hank proved that the place where the stamps wore kept was a proper and suitable place, and that only its officers and employees had access thereto, and that none of its officers or employees, or any third person to its knowledge, 'appropriated them.

It can fairly he predicated on this evidence that, if the particular $500 worth of stamps had been actually placed in the care of the hank, the failure to return them to appellant on his demand was solely because that amount of stamps had unaccountably disappeared. It may he true that the particular stamps, if ever placed in the bank, disappeared through no lack of due care on the part of the bank in respect to their safekeeping. It may also be true that the circumstances are sufficient to acquit the bank of any conversion of the particular stamps on the part of its officers or employees. But the question is: Can it be beld as a matter of law in tbe circumstances that appellee whs excused and exonerated from any liability for the nondelivery of the particular $500 worth of stamps, if they were actually placed ' in its care for safe-keeping? If the bank actually received tbe $500 worth of stamps, then the fact of their disappearance would authorize the presumption that either some .one appropriated them, or they had been lost while in the custody of the bank. As the evidence showed that no person other than officers .and employees of the bank had access to the vault where the stamps were kept, the jury would be authorized to reasonably infer, as within their province to. do, that the bank still had tbe particular stamps and withholds them from appellant and refuses to deliver them to him. While the witnesses each testify that they did not appropriate the stamps, and their statement is probably true, yet such statements are not conclusive, and' the question is entirely one of credibility which the law requires the jury to. decide, and which must be passed to the jury for decision, From this view it results that there was error in the instruction given.

The judgment is reversed, and the cause is remanded for another trial.

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BEVY, 3.

(after stating the facts as above). The evidence is'conflicting as to whether the appellant placed $3,000 or $2,500 worth of war savings stamps in the care and custody of the appellee bank for safe-keeping. The appellant claims that he placed in the bank’s custody $3,000 worth of stamps, and the bank claims that it received from the appellant only $2,500 worth. If it be true as a fact, as claimed by the bank, that only $2,500 worth of the stamps was received by it for safe-keeping, then clearly the appellant, as admitted by him, has received back all of his stamps and the bailment was fully terminated. But if it be true as a fact, as claimed by appellant, that he placed $3,000 worth of stamps in the custody and care of the' bank, then admittedly the appellant has not received all of his stamps from the ban£, and the bank -has failed to return $500 worth of the stamps on the appellant’s demand therefor. In this special phase of the case the bank, even as-a gratuitous bailee, was legally bound to return all of the $3,000 if actually placed in the bank, to the appellant on his demand therefor in September, 1920, and the proof by appellant of failure to return part of the stamps, to the extent of $500 worth, establishes a sufficient prima facie case against the bank to put it upon its defense. The fact of failure to return all the property on demand raises the presumption, unless rebutted, of loss through negligence or detention from an inexcusable cause on the bank’s part. As stated:

“If the bailee to whose. possession, control, and care goods are intrusted will not account for the failure or refusal to deliver them on demand of the bailor, the presumption is not violent that he has been wanting in diligence, or that he may have wrongfully converted, or may wrongfully detain them.” Davis v. Hurt, 114 Ala. 146, 21 South. 468.

The bank, in rebuttal, offered in effect the defense that the loss, if any, of the $500 worth of stamps was not occasioned by a lack of due care on its part to safely keep them, nor to any wrongful act on the part of its officers or employees. The hank proved that the place where the stamps wore kept was a proper and suitable place, and that only its officers and employees had access thereto, and that none of its officers or employees, or any third person to its knowledge, 'appropriated them.

It can fairly he predicated on this evidence that, if the particular $500 worth of stamps had been actually placed in the care of the hank, the failure to return them to appellant on his demand was solely because that amount of stamps had unaccountably disappeared. It may he true that the particular stamps, if ever placed in the bank, disappeared through no lack of due care on the part of the bank in respect to their safekeeping. It may also be true that the circumstances are sufficient to acquit the bank of any conversion of the particular stamps on the part of its officers or employees. But the question is: Can it be beld as a matter of law in tbe circumstances that appellee whs excused and exonerated from any liability for the nondelivery of the particular $500 worth of stamps, if they were actually placed ' in its care for safe-keeping? If the bank actually received tbe $500 worth of stamps, then the fact of their disappearance would authorize the presumption that either some .one appropriated them, or they had been lost while in the custody of the bank. As the evidence showed that no person other than officers .and employees of the bank had access to the vault where the stamps were kept, the jury would be authorized to reasonably infer, as within their province to. do, that the bank still had tbe particular stamps and withholds them from appellant and refuses to deliver them to him. While the witnesses each testify that they did not appropriate the stamps, and their statement is probably true, yet such statements are not conclusive, and' the question is entirely one of credibility which the law requires the jury to. decide, and which must be passed to the jury for decision, From this view it results that there was error in the instruction given.

The judgment is reversed, and the cause is remanded for another trial.

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263 S.W. 620, 1924 Tex. App. LEXIS 1092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/utts-v-texas-state-bank-of-canton-texapp-1924.

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