Tennessee

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

K.T. McConnico, Jr. v. Commerce Union Bank,
1972.TN.99 (Tenn.App. 04/28/1972)

COURT OF APPEALS OF TENNESSEE, MIDDLE SECTION, AT NASHVILLE

K. T. McCONNICO, JR., TRUSTEE, ETC., Complainant-Appellee

v.

COMMERCE UNION BANK, Defendant-Appellant

Slip Opinion

1972.TN.99

Date Filed: April 28, 1972

Appeal from part one of the Chancery Court of Davidson County, Tennessee, Honorable Ned Lentz, Chancellor.

APPELLATE judges:

W.P. Puryear, Judge. Shriver, P.J., Todd, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PURYEAR

This suit was filed by the complainant, K. T. McConnico, Jr., Trustee in bankruptcy of W. T. Hardison and Company (to whom we will hereinafter refer as "trustee" or "complainant") against Commerce Union Bank (hereinafter referred to as "Commerce Union" or "defendant") to recover the total amount of certain checks drawn by W. T. Hardison IV, on the account of W. T. Hardison and Company (hereinafter referred to as the "Company") on First American National Bank (hereinafter referred to as "First American") and cashed or negotiated by W. T. Hardison IV (hereinafter referred to as "Hardison"). The following transactions are involved:

Ninety checks were cashed by Hardison at Commerce Union between February 20, 1967, and July 5, 1967, totaling $ 475,250.00; check dated April 26, 1967, and deposited in Hardison's personal checking account at Commerce Union in the amount of $ 10,000.00; check dated July 10, 1967, and deposited in Hardison's personal savings account at Commerce Union in the amount of $ 5,000.00; check dated November 7, 1967, issued to pay Hardison's personal note at Commerce Union in the amount of $ 20,847.99.

In his bill of complaint, as amended, complainant avers and charges that the proceeds of said checks were misappropriated by Hardison; that the defendant knew or should have known that Hardison was acting in a fiduciary capacity; that the cashing of said checks constituted a violation of Section 48-123 T.C.A., and that the defendant, Commerce Union Bank, is liable to complainant for the total amount of said checks as a joint tortfeasor.

In its answer, as amended, the defendant, Commerce Union Bank, admitted cashing all of said checks, but denied that it knew or should have known that the cashing of same contributed to an unlawful diversion or misappropriation of corporate funds, denied that it violated Section 48-123 T.C.A., denied that it was liable to complainant for any amount as a joint tort-feasor or otherwise.

Also in said answer the defendant, Commerce Union Bank, alleged that Hardison was the president, director and sole stockholder of the company, that the company was solvent and actively engaged in business, that Hardison was authorized to draw and negotiate said checks, and that the defendant was holder in due course of said checks; that every check involved in the suit was entered on the records of the company kept by the secretary and charged against Hardison and that said records also reflected credits to Hardison's account; and that the largest balance ever owed to the company by Hardison during the period of time involved was $ 9,965.06.

The case was tried before the Chancellor upon oral proof, documentary evidence and stipulations as to certain facts, as a result of which the Chancellor held that the transactions involved in this controversy were contrary to the usual and accepted banking practices, that the defendant violated such practices and its own rules and was guilty of gross negligence.

It was ordered, adJudged and decreed by the trial Court that the complainant have and recover of the defendant, Commerce Union Bank, the sum of $ 510,827.99, together with interest thereon from May 25, 1967, in the amount of $ 126,685.34, or a total of $ 637,513.33 and the costs of suit.

From the foregoing decree, defendant has prayed and perfected an appeal and filed six assignments of error.

This being a broad appeal, the complainant has also filed an assignment of error as he has a right to do.

The facts are uncontroverted and such facts as are essential to a consideration and Disposition of this appeal are, briefly, as follows:

Complainant is the duly appointed trustee in bankruptcy for the company, which was involuntarily adjudicated bankrupt on October 27, 1969.

At all times during the occurrence of events out of which this controversy arose, Hardison was a director, the president and sole stockholder of the company and during the period between February 20, 1967, and November 11, 1967, the company did not maintain a bank account with the defendant but Hardison did maintain personal checking accounts and a personal savings account with defendant.

During the above mentioned period of time the company maintained a checking account with First American and there was on file with First American a certified copy of a resolution adopted by the company's board of directors authorizing Hardison to draw and negotiate checks on the company's account and receive the proceeds thereof.

During said period of time Hardison was personally indebted to defendant in amounts ranging from a minimum of $ 10,500.00 to a maximum of $ 34,500.00.

During said period of time the checks drawn by Hardison on the company's account at First American, which checks are listed in the appendix attached to and made a part of this opinion, under "charges" were cashed by Hardison at Commerce Union and he received the proceeds thereof, all of which checks were paid by First American upon presentation thereof.

Also during said period of time, Hardison deposited in the company's account at First American the amounts shown in said appendix in the column designated as "credits" on the dates shown in the column designated as "date on journal".

In addition to the checks shown in said appendix, Hardison deposited a company check in the amount of $ 10,000.00 in his personal checking account at Commerce Union on April 26, 1967; on July 10, 1967, he deposited a company check for $ 5,000.00 in his personal savings account; and on November 7, 1967, he issued a company check for $ 20,847.99 in payment of his personal note at Commerce Union.

All three of these last mentioned checks were likewise paid by First American upon presentation thereof and all the checks involved in this proceeding were recorded on the company's records and charged against Hardison's account.

Some of the checks in question here bear Hardison's personal endorsement but some of them bear no endorsement at all.

Also, during the period in question, Hardison cashed other checks drawn on the company's account in the total amount of $ 11,500.00, but these last mentioned checks were not cashed at Commerce Union.

In addition to the currency deposited by Hardison, as shown in the appendix hereto, he made deposits other than currency in the company's account for a total of $ 96,958.31.

None of the transactions involved in this controversy occurred while the company was insolvent, none of them rendered it insolvent and the adjudication of bankruptcy was not made until almost two years after the last one of said transactions occurred.

Since Hardison was the sole stockholder, this suit is brought for the use and benefit of the company's creditors and the complainant insists that the defendant is liable to complainant for the total amount of these checks which were drawn by Hardison and paid out of the company's funds.

The complainant's theory of liability is predicated upon the insistence that the defendant's cashing of said checks constituted violations of law, violation of customary and usual banking procedures and that the defendant was grossly negligent.

The defendant's first and fourth assignments of error raise related questions, therefore, they will be considered together. These assignments are as follows:

"The Court erred in awarding the Trustee a recovery against CUB in the absence of proof that the checks were negotiated while the Company was insolvent or that the transactions rendered the Company insolvent.

This was error because, in the absence of insolvency, the creditors of the Company suffered no loss; and it is undisputed that, during the first seven months of 1967, the Company had net profits in excess of $ 30,000 and a net worth in excess of $ 100,000."

"The Court erred in awarding the Trustee a recovery against CUB on the ground that its officers were guilty of negligence in cashing and accepting the checks.

This was error because mere negligence, without proof of injury or loss proximately resulting therefrom is insufficient to support a recovery; and all inferences of dishonesty on the part of the bank employees have been eliminated from the case."

It will be observed that, for the purpose of considering these two assignments, gross negligence, violation of Section 48-123 T.C.A. and departure from customary and usual banking procedures may be conceded for the purpose of argument although defendant makes no such concession, but on the contrary, disputes such contentions in other assignments.

It is noteworthy that on the very same day some of the checks were cashed by Hardison, he made deposits in the company's account at First American for the exact amount which he had withdrawn by cashing a check at Commerce Union.

On March 1, 1967, he cashed a check for $ 3,600.00 and on that same day he deposited $ 3,600.00 in currency; on March 7, 1967, he cashed a check in the amount of $ 3,800.00 and on that same day he deposited currency in the amount of $ 3,800.00; on March 8, 1967, he cashed a check in the amount of $ 4,200.00 and on that same day he deposited currency in the amount of $ 4,200.00; on March 9, 1967, he cashed a check in the amount of $ 3,800.00 and on that day he deposited currency in the amount of $ 3,800.00; on March 16, 1967, he cashed a check in the amount of $ 3,500.00 and on that same day he deposited currency in the amount of $ 3,500.00, in addition to another deposit of $ 4,500.00 in currency on that same day; on March 20, 1967, he cashed a check in the amount of $ 3,850.00 and on that same day he deposited currency in the amount of $ 3,850.00; on May 10, 1967, he cashed a check for $ 5,000.00 and on that same day he made two deposits of currency, each deposit being in the amount of $ 5,000.00 and in this connection it is significant that he cashed a check in the amount of $ 5,000.00 on the preceding day but made no deposit on that day; on May 18, 1967, he cashed a check in the amount of $ 7,500.00 and on that same day he deposited currency in the amount of $ 7,500.00; on May 19, 1967, he cashed two checks, one in the amount of $ 7,500.00 and the other is the amount of $ 2,500.00, and on that same day he deposited currency in the amount of $ 10,000.00; on May 24, 1967, he cashed two checks, one in the amount of $ 7,500.00 and the other in the amount of $ 2,500.00 and on that same day he made a deposit of currency in the amount of $ 10,000.00; on May 29, 1967, he cashed two checks, one in the amount of $ 7,500.00, the other in the amount of $ 2,500.00; and on that same day he made a deposit of currency in the amount of $ 10,000.00; on June 1, 1967, he cashed two checks, one in the amount of $ 7,500.00 and the other in the amount of $ 2,500.00, and on that same day he deposited currency in the amount of $ 10,000.00; on June 15, 1967, he cashed a check in the amount of $ 10,000.00 and on that same day he deposited currency in the amount of $ 10,000.00; on June 16, 1967, he cashed a check in the amount of $ 10,000.00 and on that same day he deposited $ 10,000.00 in currency; on June 19, 1967, he cashed a check in the amount of $ 10,000.00 and on that same day he deposited currency in the amount of $ 10,000.00; on June 22, 1967, he cashed a check in the amount of $ 10,000.00 and on that same day he deposited currency in the amount of $ 10,000.00; on June 23, 1967, he cashed a check in the amount of $ 10,000.00 and on that same day he deposited currency in the amount of $ 10,000.00; on June 26, 1967, he cashed a check in the amount of $ 10,000.00 and on that same day he deposited currency in the amount of $ 10,000.00; on June 28, 1967, he cashed a check in the amount of $ 10,000.00 and on that same day he deposited currency in the amount of $ 10,000.00; on June 29, 1967, he cashed a check in the amount of $ 10,000.00 and on that same day he deposited currency in the amount of $ 10,000.00; on July 5, 1967, he cashed a check in the amount of $ 10,000.00 and on that same day he deposited currency in the amount of $ 10,000.00.

The reason or motive for Hardison's bizarre conduct in cashing checks at Commerce Union and immediately, or soon thereafter, depositing the exact amount of such checks in the company's account at First American does not appear from the record. But, whatever his reason or motive may have been, it does not appear from the record before us that the creditors of the company sustained any loss as a result of such bizarre conduct and the defendant's acquiescence therein.

It was held by this Court in Haynie v. Milan Exchange, Inc. (1970), Tenn. App., 458 S. W. (2nd) 23, that a corporation may execute its note for the personal indebtedness of its sole stockholder and no one but the creditors of the corporation can complain.

Therefore, the question of whether or not the company's creditors sustained any loss as a result of Hardison's bizarre handling of corporate funds and the defendant's acquiescence therein is the determinative question on consideration of these two assignments of error, there being no evidence that the defendant's agents were guilty of any acts of dishonesty.

The evidence shows that during the period of time in question here, Hardison deposited in the company's checking account at First American approximately $ 58,000.00 more than he withdrew by the checks in question here.

It further appears that the company was not insolvent when any of said checks were written and cashed, and that the writing and cashing thereof did not render it insolvent.

It is a fundamental rule of tort liability that no compensatory recovery can be awarded unless loss or injury was suffered as a proximate result of the tortious act or omission of duty in question.

Prosser Law of Torts, 4th Ed., states this rule on pages 143 and 144 as follows:

"Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damages was an essential part of the plaintiff's case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred. The threat of future harm, not yet realized, is not enough. Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered."

The rule was also stated and followed by the Supreme Court of Tennessee in Railroad v. Wade (1912), 127 Tenn. 154.

Under the Annotations appearing in 100 A.L.R.(2nd) at page 957, it is said that:

"Although a plaintiff may show that the defendant was under a legal duty or obligation to protect the plaintiff against the event which occurred and that the defendant's conduct was in violation of this duty, to establish a cause of action for negligence plaintiff also must show that he sustained actual loss or damage (the 'damage issue') as a result of the defendant's conduct (the 'causal relation' issue).

(Supra, p. 957)

This rule is also applicable to an action grounded upon violation of a penal statute. Mitchell v. Ketner (1969), 54 Tenn. App. 656, 393 S. W. (2nd) 755 and cases cited therein.

The case of Maley v. East Side Bank of Chicago, decided by the Seventh Circuit Court of Appeals in 1966 and reported in 361 Fed. (2nd) 393, does not constitute controlling authority for the complainant's position that it is entitled to recover the amount of said checks despite the fact that the evidence fails to show the creditors of the company sustained any loss as a result of the cashing of same.

In that case the Appeals Court affirmed the judgment of the District Court for the Northern District of Illinois and the District Court's opinion is reported in 234 Federal Supplement, beginning on page 395 thereof.

The Appellate Court observed that the last one of the checks in question was cashed only one day before an involuntary petition in bankruptcy was filed against the corporation on which the checks were drawn.

From the facts of that case, as recited in the District Court's opinion, it conclusively appears that a loss to the creditors was established by the evidence, as shown by the following excerpts from the Court's opinion:

"As plaintiff methodically points out, the elements of a fraudulent transfer under the Bankruptcy Act have been met (§67, sub. d (2) (a) - a transfer by a debtor within a year of bankruptcy, fraudulent as to existing creditors when made without fair consideration by a debtor who is insolvent or thereby rendered insolvent."

"This is not a case where the corporation sustained no loss through the irregular and unauthorized acts of its president, as is the situation in some of the decisions, where the bank is held not liable to the depositor."

(Supra, p. 398)

"The court is of the opinion that in the factual setting of this case that Schulman's being the sole stockholder -- if he were -- should not affect the Conclusion as to the rights of the creditors of the corporation against the bank. It made the severe losses possible through its gross negligence and violation of the resolution on file."

(234 Fed. Supp. p. 400)

Therefore, we have concluded that the defendant's first and fourth assignments of error must be sustained.

In view of the fact that we are sustaining these assignments and accordingly disposing of the case, it is not necessary for us to consider the other four assignments of error filed by defendant and they are pretermitted.

In the complainant's single assignment of error, he insists that it was error for the trial Court to exclude certain testimony of one Sam Rosenberg, an accountant, to the effect that certain checks drawn on the company's checking account by Hardison were irregularly drawn and endorsed and not properly entered upon the company's ledger.

However, the first of these checks was dated December 15, 1967, and therefore, none of them issued until more than a month after the last check involved in the transactions under scrutiny in this case.

Under this assignment, complainant insists this evidence should have been considered for the purpose of determining the accuracy and correctness of the books and records of the company.

We have considered this excluded evidence and do not find that it tends to establish any loss to the creditors as a result of the transactions involved in this suit and therefore, it was not error for the trial Court to exclude such evidence.

The complainant's assignment of error is respectfully overruled.

In view of the fact that we have sustained the defendant's first and fourth assignments, and overruled the complainant's single assignment, the decree of the trial Court is reversed and the suit dismissed at the cost of complainant.

APPENDIX

DETAIL OF CHARGE AND CREDIT ENTRIES TO W. T. HARDISON INDIVIDUALLY AS

SHOWN ON JOURNAL OF W. T. HARDISON COMPANY, INC.

FEBRUARY 20, 1967 TO JULY 5, 1967

Date on Check Journal Number Charges Credits

2-20-67 Check cashed 2311 2,500.00

2-28-67 Currency deposited 2,600.00

2-28-67 Check cashed 2335 3,600.00

3- 1-67 Check cashed 2338 3,600.00

3- 1-67 Currency deposited 3,600.00

3- 1-67 Currency deposited 3,600.00

3- 2-67 Check cashed 2341 3,600.00

3- 3-67 Check cashed 2355 2,600.00

3- 3-67 Currency deposited 3,600.00

3- 3-67 Check cashed 2356 3,600.00

3- 6-67 Currency deposited 3,600.00

3- 6-67 Currency deposited 2,600.00

3- 7-67 Check cashed 2365 3,800.00

3- 6-67 Currency deposited 3,800.00

3- 8-67 Check cashed 2405 4,200.00

3- 8-67 Currency deposited 4,200.00

3- 9-67 Check cashed 2409 3,800.00

3- 9-67 Currency deposited 3,800.00

3-10-67 Check cashed 2414 4,600.00

3-13-67 Currency deposited 4,500.00

3-14-67 Currency deposited 4,800.00

3-14-67 Check cashed 2436 4,800.00

3-16-67 Check cashed 2448 4,800.00

3-16-67 Check cashed 2450 3,500.00

3-16-67 Currency deposited 4,500.00

3-16-67 Currency deposited 3,500.00

3-17-67 Check cashed 2473 4,200.00

3-17-67 Currency deposited 4,200.00

3-20-67 Check cashed 2480 3,850.00

3-20-67 Currency deposited 3,850.00

3-21-67 Check cashed 2485 4,200.00

3-21-67 Currency deposited 4,100.00

3-22-67 Check cashed 2504 4,200.00

3-22-67 Currency deposited 4,100.00

3-23-67 Check cashed 2512 4,200.00

3-23-67 Currency deposited 4,000.00

3-24-67 Check cashed 2540 3,500.00

3-27-67 Currency deposited 3,400.00

3-27-67 Currency deposited 3,400.00

3-28-67 Check cashed 2545 4,800.00

3-28-67 Currency deposited 4,700.00

3-29-67 Check cashed 2550 4,800.00

3-30-67 Check cashed 2563 4,800.00

3-30-67 Currency deposited 4,700.00

3-30-67 Currency deposited 4,700.00

3-31-67 Check cashed 2569 4,600.00

3-31-67 Currency deposited 4,500.00

4- 1-67 Currency deposited 4,700.00

4- 3-67 Check cashed 2573 4,800.00

4- 4-67 Check cashed 2575 4,800.00

4- 5-67 Check cashed 2605 4,800.00

4- 5-67 Currency deposited 4,600.00

4- 5-67 Currency deposited 4,600.00

4- 5-67 Currency deposited 4,600.00

4- 6-67 Check cashed 2608 4,800.00

4- 7-67 Check cashed 2614 4,800.00

4- 7-67 Currency deposited 4,600.00

4-10-67 Check cashed 2617 4,800.00

4-10-67 Currency deposited 4,600.00

4-11-67 Check cashed 2628 4,800.00

4-11-67 Check cashed 2660 5,000.00

4-11-67 Currency deposited 4,600.00

4-12-67 Currency deposited 4,800.00

4-13-67 Check cashed 2672 5,000.00

4-14-67 Check cashed 2639 5,000.00

4-14-67 Currency deposited 4,800.00

4-17-67 Check cashed 2706 5,000.00

4-17-67 Currency deposited 4,800.00

4-18-67 Check cashed 2708 5,000.00

4-19-67 Currency deposited 4,800.00

4-19-67 Currency deposited 4,800.00

4-20-67 Check cashed 2722 5,000.00

4-21-67 Check cashed 2739 5,000.00

4-21-67 Currency deposited 9,600.00

4-24-67 Check cashed 2743 5,000.00

4-25-67 Check cashed 2747 5,000.00

4-25-67 Currency deposited 10,000.00

4-26-67 Check cashed 2754 5,000.00

4-26-67 Check cashed 2757 5,000.00

4-26-67 Check cashed 2758 500.00

4-26-67 Currency deposited 4,900.00

4-28-67 Check cashed 2769 5,000.00

4-28-67 Check cashed 2761 5,000.00

4-28-67 Check cashed 2762 500.00

4-28-67 Currency deposited 5,000.00

4-28-67 Currency deposited 10,100.00

5- 1-67 Check cashed 2772 5,000.00

5- 2-67 Check cashed 2779 5,000.00

5- 2-67 Check cashed 2785 5,000.00

5- 2-67 Currency deposited 9,000.00

5- 3-67 Check cashed 2788 2,500.00

5- 3-67 Currency deposited 4,900.00

5- 4-67 Check cashed 2793 6,000.00

5- 4-67 Currency deposited 5,900.00

5- 5-67 Check cashed 2797 5,000.00

5- 5-67 Currency deposited 7,500.00

5- 8-67 Check cashed 2809 2,500.00

5- 8-67 Check cashed 2810 5,000.00

5- 8-67 Currency deposited 6,000.00

5- 9-67 Check cashed 2813 5,000.00

5-10-67 Check cashed 2815 5,000.00

5-10-67 Currency deposited 5,000.00

5-10-67 Currency deposited 5,000.00

5-11-67 Check cashed 2817 5,000.00

5-12-67 Check cashed 2819 7,500.00

5-12-67 Currency deposited 11,000.00

5-15-67 Check cashed 2854 7,500.00

5-15-67 Currency deposited 7,000.00

5-18-67 Check cashed 2881 7,500.00

5-18-67 Currency deposited 7,500.00

5-19-67 Check cashed 2884 7,500.00

5-19-67 Check cashed 2885 2,500.00

5-19-67 Currency deposited 10,000.00

5-22-67 Check cashed 2887 7,500.00

5-22-67 Check cashed 2888 2,500.00

5-22-67 Currency deposited 9,900.00

5-23-67 Check cashed 2893 7,500.00

5-23-67 Check cashed 2894 2,500.00

5-23-67 Currency deposited 9,500.00

5-24-67 Check cashed 2899 7,500.00

5-24-67 Check cashed 2900 2,500.00

5-24-67 Currency deposited 10,000.00

5-25-67 Check cashed 2906 7,500.00

5-25-67 Check cashed 2907 2,500.00

5-25-67 Currency deposited 7,500.00

5-26-67 Check cashed 2903 7,500.00

5-26-67 Check cashed 2909 2,500.00

5-29-67 Currency deposited 10,000.00

5-29-67 Check cashed 2940 7,500.00

5-29-67 Check cashed 2941 2,500.00

5-29-67 Currency deposited 10,000.00

5-30-67 Check cashed 2945 7,500.00

5-30-67 Check cashed 2946 2,500.00

5-31-67 Check cashed 2947 7,500.00

5-31-67 Check cashed 2948 2,500.00

5-31-67 Currency deposited 7,500.00

5-31-67 Currency deposited 10,000.00

6- 1-67 Check cashed 2953 7,500.00

6- 1-67 Check cashed 2954 2,500.00

6- 1-67 Currency deposited 10,000.00

6-15-67 Check cashed 3039 10,000.00

6-15-67 Currency deposited 10,000.00

6-16-67 Check cashed 3042 10,000.00

6-16-67 Currency deposited 10,000.00

6-19-67 Check cashed 3047 10,000.00

6-19-67 Currency deposited 10,000.00

6-20-67 Check cashed 3053 10,000.00

6-22-67 Check cashed 3060 10,000.00

6-22-67 Currency deposited 10,000.00

6-22-67 Currency deposited 10,000.00

6-23-67 Check cashed 3070 10,000.00

6-23-67 Currency deposited 10,000.00

6-26-67 Check cashed 3076 10,000.00

6-26-67 Currency deposited 10,000.00

6-27-67 Check cashed 3094 10,000.00

6-28-67 Check cashed 3096 10,000.00

6-28-67 Currency deposited 10,000.00

6-29-67 Check cashed 3103 10,000.00

6-29-67 Currency deposited 10,000.00

6-30-67 Currency deposited 10,000.00

7- 5-67 Check cashed 3116 10,000.00

7- 5-67 Currency deposited 10,000.00

----------- -----------

475,250.00   463,450.00

CASE RESOLUTION

REVERSED AND DISMISSED

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