Frances Colantuono, an elderly woman living alone in Rockport, by 1987 had come to rely on her cousin, Janice Aspesi, to assist her in many household chores and personal needs. In April of that year, while hospitalized, Colantuono executed two joint account authorizations, adding Aspesi’s name as joint owner of deposit accounts in the Granite Savings Bank, where Aspesi was an employee. A third account was later made joint, and these accounts, coupled with certificates of deposit put in the joint names, totaled roughly $100,000. By 1991 they had shrunk to roughly
The plaintiff contends that Colantuono’s purpose in executing the joint account authorizations was to facilitate Aspesi’s helping her with managing her finances, not to make a gift to Aspesi. Whatever may have been the understanding between Aspesi and Colantuono, there is no evidence that any restriction on Aspesi’s right to draw on the accounts was communicated to anyone in the bank, other than Aspesi herself, prior to the plaintiff’s 1991 letter.
1. Negligence in the establishment of the joint accounts. The plaintiff’s theory here was that the bank was negligent in not questioning the authorizations, because no one from the bank, other than Aspesi, actually witnessed Colantuono’s signing of the authorizations. Aspesi took the first two authorizations to Colantuono in the hospital, where Colantuono signed them and a nurse signed on a line provided for a witness. Other authorizations, apparently signed after Colantuono left the hospital, followed a similar pattern. The plaintiff’s first difficulty here is that, although the forms call for a witness, it is nowhere specified that the witness be a bank employee or even that the witness observe the act of signing. The only evidence bearing on the subject is that it is the policy of the bank to check the account holder’s signature against the signature on file and, if the form has not previously been
2. Negligent supervision of Aspesi. The plaintiff’s negligent supervision theory asserts that Aspesi’s supervisors at the bank had a duty (1) to investigate due to the alleged “irregularities” in the authorization executions, (2) to make inquiry of Aspesi as to the purpose of the joint account authorization, and (3) to question large withdrawals, such as one for $50,000 shortly after the accounts had been made joint. As to (1), the plaintiff failed to provide evidence of “irregularities” (see part 1, supra). As to (2) and (3), the plaintiff cites no law, and adduces no evidence of a bank policy, that imposed on the bank the obligations suggested. The bank had no policy against employee accounts, individual or joint; and if the bank had investigated, and contacted Colantuono, she would have verified her intent to transform her accounts into joint accounts with Aspesi. Massachusetts law is clear, moreover, that banks do not have a duty to depositors to make inquiry as to withdrawals by an authorized person that do not contravene an express limitation on his authority to draw on the account. Rather, a bank’s liability turns on its actual knowledge of a misappropriation of the depositor’s funds. See Allen v. Fourth Natl. Bank, 224 Mass. 239, 244 (1916); Kendall v. Fidelity Trust Co., 230 Mass. 238, 241-242 (1918); Boston Note Brokerage Co. v. Pilgrim Trust Co., 318 Mass. 224, 227 (1945). “A banker having no interest in the matter, who pays out money on deposit on the fraudulent order of the person who by the terms of the deposit had the right to draw on the account, is liable only when he is privy to the depositor’s fraud.” Newburyport v. First Natl. Bank, 216 Mass. 304, 304-305 (1914). Eastern Mut. Ins. Co. v. Altantic Natl. Bank, 260 Mass. 485, 488 (1927).
3. Respondeat Superior. The plaintiff argues, finally, that the bank, as Aspesi’s employer, is liable vicariously for torts committed by Aspesi within the scope of her employment.
The plaintiff argues that “[t]he evidence is clear that Aspesi would not have succeeded in gaining control, of nearly $100,000 of her cousin’s life savings if she had not been a customer representative and teller at the bank.” Manifestly that was not the case. The record is devoid of evidence that any customer could not have obtained joint account authorization forms and converted individual accounts to joint by exactly the same steps Aspesi used. There is nothing in the record to indicate that the completed forms were not checked (for authenticity of signatures) in exactly the same way that such forms would be checked if submitted by a nonemployee. Periodic statements showing the changes in the accounts continued to be mailed to Colantuono, who was unquestionably aware that the accounts were now joint. There was nothing wrongful in any of this. It was only when Aspesi started to siphon off money for her personal ends that wrongful conduct occurred. Colantuono’s own instructions then obligated the bank to process Aspesi’s withdrawals, as matters both of statutory law, G. L. c. 167D, § 5, and of contract.
Judgment affirmed.
The authorizations state simply: “I hereby authorize that the name of _be added to my account # _making it a joint account payable to either or the survivor.” The blanks were filled in, and the forms were signed by Colantuono and witnessed. There is no evidence, and there is reason to doubt, that the bank would have honored a joint account authorization that imposed on the bank an obligation to investigate the purposes for which funds were withdrawn.