93 Ga. 503 | Ga. | 1893
Guilmartin sued the Merchants National Bank, alleging that it was indebted to him $20,000, in that on March 7th, 1887, he had intrusted to and bailed as a special deposit in the charge and custody of the defendant, which was then engaged in the business of banking,
The evidence warranted the verdict, aud no error requiring a new trial was committed by the court below in admitting evidence, or in charging the jury, or in refusing to charge as requested. It appears that the bank received the bonds sued for from the plaintiff as a gratuitous special deposit, and that its cashier, Gadsden, fraudulently took them from the bank and converted them to his own use; and the main question in the case was, whether or not the defendant exercised due diligence in retaining Gadsden as cashier and custodian of this property, under the circumstances shown by the evidence. It appears from the evidence that during the time the bonds were in the bank and in Gadsden’s keeping as cashier, he was engaged, on his own account, in numerous and large speculations in stocks and bonds, on “ margins”; and there was evidence that the president of the bank knew something of this. A broker with whom Gadsden dealt in these speculations testified that their dealings extended continuously through a
The law applicable to the case is so clearly stated in the charge of the court below, that we give in substance the principal portions of the charge, adopting the same as a part of this opinion : All bailees are required to exercise care and diligence in protecting and keeping safely the thing bailed. Different degrees of diligence are required according to the nature of the bailment. It being conceded that the bank, in accepting the plaintiff’s bonds on special deposit, did so gratuitously and without any stipulation or agreement that it was to receive or have the right to demand any reward or compensation for so doing, in its duty of protecting and keeping safely the bonds so deposited it was bound to exercise only slight care and diligence, “ that care which every man of common sense, how inattentive soever he may be, takes of his own property.” It would be liable only in the event it was guilty of a want of that degree of care and diligence which is termed “ gross negligence,” and the bonds were lost because of that gross negligence. If,.after-..this -deposit was made with the bank, the plaintiff by his agent demanded the return of his bonds by the bank, and the bank failed to return them, this would constitute sufficient proof of loss, and put upon the bank the burden of showing that its fail
Whatever was notice enough to excite attention and put the bank on its guard and call for inquiry, was also
The purchase or sale of stqek by the cashier cf a bank would not of itself be proof of dishonesty, while the buying and selling of stock beyond his evident means might be. This is entirely a matter for the jury. It is for them to determine whether or not speculation on his part is such a circumstance as would render him unfit to hold his position as cashier. If the cashier had been
There was no undertaking on the part of the bank to the plaintiff that an officer of the bank should not steal, the ease does not rest on any such 'warranty or undertaking, but on gross negligence in care-taking. Nothing short of a knowledge of the true character of Gadsden before he stole the plaintiff’s bonds, or reasonable grounds to suspect his integrity, followed by neglect to remove him, would amount to gross negligence.
If the plaintiff knew from his own personal experience that as to securities received,, such as the bonds here sued for were, the directors of the bank neither examined nor looked to their custody, but that they were left entirely in the charge and control of the cashier, and that the only guarantee to parties leaving bonds under such
In giving this abstract from the charge, of course much of the language, especially as to formal matters, is omitted. Judgment affirmed.