C. K. Security Systems, Inc. v. Hartford Accident &Amp; Indemnity Company Et Al., 137 Ga. App. 159, 223 S.E.2d 453 (1975)
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Summary
Judgment affirmed. Quillian and Clark, JJ., concur.
Summary
Judgment affirmed. Quillian and Clark, JJ., concur.
Text
C. K. Security Systems, Inc., doing business as North American Security, entered into a contract with Days Inn of America, Inc., whereby appellant was to furnish security service, including the use of "skilled" uniform personnel to patrol the premises of Days Inn. Days Realty Management, Inc., was a tenant on the premises covered by the contract. One of the security personnel so furnished stole from the office of Days Realty a blank check, forged the name of an official of the company, made the check payable to himself in the amount of $11,000. The check was deposited to the account of employee in another bank and later the funds were withdrawn therefrom. The check in due course arrived at Peachtree Bank & Trust Company where Days Realty had several accounts. The check constituted an overdraft of $6,000 to $7,000 on the account on which it was drawn. An authorized bank official accepted the check and permitted the overdraft, but no check was made as to the signature. This payment was authorized after the "midnight deadline" for rejecting checks and returning them to the forwarding bank, the delay being occasioned by a computer breakdown and the computer later rejected the check, after the overdraft was authorized. Several days later, after Days Realty received a notice of the overdraft, the check was returned to the bank as a forgery and the bank promptly credited the account of Days Realty. The bank's insurer partially reimbursed it. Days Inn and Days Realty assigned to the bank and its insurer any causes of action it might have against the employee and the appellant. The bank and its insurer brought an action to recover the amount of the check against the appellant and the employee, who allegedly stole the check. Appellant's motion for summary judgment was overruled and it appeals to this court. Held:
1. Neither side takes the position that the employee was acting within the scope of his employment in stealing and forging the check. The appellant, however, contends that under the law of this state there can be no liability for the negligent hiring of the servant unless it appears the employer had actual knowledge of the characteristics and propensities which make the employee unfit for the particular employment; and further contended that cases of negligent entrustment apply as well to negligent employment. Cases relied upon and discussed were the following: Renfroe v. Fouche,
While the expression "pierce the pleading" was appropriate at the time a plaintiff was required to plead every element of the cause of action, this type of pleading is no longer required. We now generally speak of defendant's evidence being required to "disprove some essential element of the plaintiff's cause of action." See Continental Assur. Co. v. Rothell,
Even under its own theory of the law appellant has not carried its burden on motion for summary judgment.
2. Nor does the evidence adduced demand a finding that the defendant exercised ordinary care in the selection of its employee should we assume actual knowledge of the employee's unfitness is not required.
The defendant is only under a duty to exercise ordinary care in selecting its employees; and while the standard of ordinary care is invariable (Central R. &c. Co. v. Ryles,
The only evidence on this point introduced in behalf of the movant was an affidavit of the president of the appellant corporation to the effect that the employee passed the personnel test given by appellant with a high grade, that the employee was given a letter for the employee to use in securing a "permit" from the Atlanta Police Department, that the records of the appellant indicated the employee secured the permit, that the record of the employee's application also indicated he had had prior employment and that these employers were contacted; that the record showed that the employee had successfully passed a course in criminology. The affidavit further showed that the president did not interview the employees, but that this and the follow-up on investigation of employees were done by others in the company. This affidavit also disclosed that others than the affiant president kept the records referred to. None of these records were introduced in evidence. It appeared that so far as the affiant knew, the Atlanta Police Department only investigated as to felony convictions in granting permits. The president further deposed that the defendant had no facilities for "making other types of checks beyond previous employers" and "relied solely on the Atlanta Police Department to screen" its "applicants for prior offenses." The evidence was mostly hearsay.
The only evidence indicating the employee may have been dishonest or likely to steal was that the F. B. I. had a record of "prior arrests." Neither the complainant nor the defendant-appellant offered evidence as to what these prior arrests were for; but the duty did not rest upon the plaintiff, but upon the defendant-movant who had the burden of showing that the prior arrests were not for crimes indicating dishonesty. As previously stated, if this case were on trial before a jury, the plaintiff would have the burden of showing the record of prior arrests which would carry different connotations. However, on motion for summary judgment by a defendant, as here, the burden is on it to disprove or even to prove a negative; that is, the arrests were not for offenses indicating incompetency of the employee to be a security officer. See in this connection Central of Ga. R. Co. v. Woolfolk Chemical Works,
Appellant contends, however, that the bank was guilty of such negligence in honoring the check without ascertaining the signature was authorized as to bar its recovery. The evidence shows that a certain bookkeeper in the usual course would have checked the signature, but because of the computer breakdown in handling checks it was necessary that the checks be handled by hand by other and various employees and it was uncertain whether anyone checked the signature. It was certain that in the handling of the checks under the breakdown circumstances, with numerous employees participating, the particular bookkeeper assigned to the particular account did not do so, neither did the officer who authorized payment of the check, so as to constitute an overdraft.
It is our opinion that it is a question for jury determination upon the trial of the case whether the negligence, if any, of the bank was sufficient to bar its recovery, as well as that of its insurer assignee.
Cases and statutes and bank rules involving negligent liability of a bank as to its depositor in honoring a forged check, relied upon by appellant, are not applicable here.
Dennis & Fain, Thomas S. Carlock, Robert C. Semler, for appellant.
1975
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