Takoma Park Bank v. Abbott

Collins, J., delivered the opinion of the Court. The appellee, LeRoy Abbott, recovered a judgment against the appellant, Takoma Park Bank, Inc., in a jury trial in the Circuit Court for Carroll County, in the amount of S50,500 for the loss of fifty $1000 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 Bessie M. Weber from whom he was separated in 1936. Some time 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 ²⁵² 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 lect.ure like a mother would, and if he was busy in the office, she would hand him a note 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 o.n it and sealing wax. He opened the envelope and found in it fifty $1000 bills, gold certificates, an ear ring, 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 $3762, some cash, and a boat.

He testified that he had a man working for him in the store, James Payne, who asked him three or four times why ,he ²⁵³ 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 §1000 gold notes.

Appellee further testified that he had previously had checking and savings accounts with the Takoma Park Bank, appellant. On August 17th, 1936, after he had sold his business he went to the appellant bank, deposited §2762 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 women 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 $1000 he had received from the cashier and the envelope containing fifty $1000 gold certificates, an ear ring 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 women 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 mental, two or three inches ²⁵⁴ 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 30th, 1937. As to the visit to the bank on November 30th, 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 §1000 bills, an ear ring 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 13th, 1937, he went to the Morris Plan Bank and saw a Mr. Collegeman and asked him if he could dispose of one of the §1000 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 in the morning of the 14th to get the box and take it to him, and he would take it to the Treasury. On December 14th, 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 ²⁵⁵ 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 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 the 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 $1000 bills, gold certificates, five $100 bills, a diamond ear ring, 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 bank. A few minutes later, an official, who later proved to be Mr. Harvey W. Turnage, executive vice-president, came down and had a conversation with Mr. Woodward in the presence of the appellee and Gates, in a private room, and, as related in part of the testimony, the bank official said that he had nothing to worry about because the bank was covered by insurance and they could sue.

Hazel Funkhauser, a witness produced by the appellant, testified that she was an employee of appellant as proof desk clerk and was assistant to Mrs. Adler when ²⁵⁶ she was at lunch or was busy with her work. She testified that she waited on Abbott, the appellee, when he came to the bank on August 17th, 1936, and rented a safe deposit box. She further testified that she got the key number 648 from one of the safe deposit boxes in the vault where the keys are kept that are not in use, and in order to get in the safe deposit box it is necessary to use both a guard key and the key to the box. The guard key was kept by Mrs. Adler, who had charge of the safe deposit boxes in her cage back of the grille, and the key to the box where the unused keys are placed was kept in a money drawer in Mrs. Adler’s cage and sometimes hangs right beside her and is available to all employees of the bank.

She further testified that on November 30th, Mr. Abbott came to the bank late in the afternoon, pressed the buzzer and, Mrs. Adler being busy, she went back, took Mr. Abbott behind the grille, used the guard key, made a complete turn and then took his key and made the half turn which opened the door, that either she or Mr. Abbott took the box out to the coupon booths and went back to her desk to the other part of the bank and that she did not see Mr. Abbott any more. She further stated that the guard key makes a complete turn and then Mr# Abbott’s key makes a half turn and in order to lock the container for" the box, it was only necessary for Mr. Abbott to turn his key back. It was pay day and the vault and bank remained open until six o’clock in the afternoon. We will first consider the prayers.

The plaintiff offered three prayers; the first and second as modified and the third as modified were granted. The defendant offered nine prayers. The defendant’s first, one-A, second, second-A and third prayers'were granted. The defendant’s B, C, and fourth and fifth prayers were refused.

Of the twenty-five exceptions taken by the appellant, the last relates to the ruling of the Court upon the prayers. This court decided in the case of Security Storage Company v. Martin, 144 Md. 536 , 125 A. 499 , that the relation existing between the lessor and lessee ²⁵⁷ of a safe deposit box is that of bailor and bailee, and further that failure to deliver and account for the contents of the safe deposit box should be treated as prima facie evidence of the negligence of the defendant in not exercising ordinary or reasonable care and diligence in the safe keeping of the contents of the box. We feel that the facts in the instant case are sufficiently similar to those in the case of Security Storage Company v. Martin, supra, as to make the same rulings applicable and as the plaintiff’s prayers as amended, are substantially the same as in that case, the ruling of the court on those prayers was correct. The defendant’s fourth and fifth prayers were substantially the same as the second and fourth prayers of the defendant in the case of Security Storage Company v. Martin, supra, and under the decision of this court in that case, were properly refused.

The defendant’s B prayer was the usual demurrer prayer and for the same reason we agree with the ruling of the trial court on that prayer. The defendant’s C prayer we will discuss later in this case. The defendant filed two pleas, the first plea being the general issue plea. The second plea was a special plea reciting that plaintiff had no interest, legal or equitable in the fifty §1000 gold certificates of the United States of America because he held them in violation of Section 5 (b) of the Act of Congress of October 6th, 1917, as amended by section 2 of the Act of Congress of March 9th, 19EE and the Executive Order No. 6260, section 5, dated August 28th, 1933, and is not legally entitled to maintain his action to recover damages, interest, and profits for the alleged loss thereof.

To this second plea the plaintiff demurred and the demurrer was sustained. Was the court correct in sustaining this demurrer? Section 5 of the Executive Order No. 6260 above referred to provides that after thirty days from August 28th, 1933 no person shall hold or retain any interest, legal or equitable, in any gold coin, gold bullion, or gold certificates situated in the United States and owned by any person subject to the jurisdiction of the United States, except under ²⁵⁸ license therefor issued pursuant to this Executive Order. The special plea did not state that the plaintiff did not have a license. “To constitute a good plea in bar, the matter pleaded, must, if true, afford a full and complete answer to the action and show that there is no right of recovery.” Glenn v. Williams, 60 Md. 93 ; Carroll v. Bowen, 113 Md. 150 at page 154, 77 A. 128 .

Section 3 of the Act of March 9th, 1933, supra, also directs that the Secretary of the Treasury shall pay therefor an equivalent amount of any other form of coin or currency issued under the laws of the United States, and although the gold certificates in this case were held after thirty days from August 28th, 1933, in order for confiscation to take place, it appears that intent to violate the Act must be shown. United States v. 98 $20 United States Gold Coins et al., 20 Fed. Supp. 354. The case of Schmidt v. Twin City State Bank, 151 Kan. 667 , 100 P. 2nd 653, is cited by the appellant but in that case, at the conclusion of the plaintiff’s case, the defendant filed a motion to strike from the record all evidence concerning gold coins. Further, the special plea does not answer the whole declaration because there is no defense set up therein to the loss of §500 in currency.

Mitchell v. Sellman, 5 Md. 376 . Unless the plea expressly states that it is intended only as an answer to a part, it will be taken as extending to the whole, and will necessarily then be held bad on demurrer, unless it presents a good defense to the whole. 1 Poe Pl. & Pr. sec. 664. We must also note that, as above stated, based on the ruling in the case of Security Storage Company v. Martin, supra, the relation of bailor and bailee existed and that a bailee cannot dispute the bailor’s title. Van Zile, Bailments & Carriers (2nd Ed. 1908), sec. 20, pp. 17-18.

We, therefore, concur with the trial court in sustaining this demurrer to the second plea. The demurrer to the second plea having been sustained, the defendant’s C prayer based on the second plea was