# Smith v. AmSouth Bank, Inc.

> Supreme Court of Alabama · May 7, 2004 · 892 So. 2d 905

URL: https://www.frixlaw.com/law-library/cases/9936317

## Case

- **Full name:** Melvin Smith, Individually and D/B/A Specialty Motor Cars v. Amsouth Bank, Inc.
- **Court:** Supreme Court of Alabama
- **Decided:** May 7, 2004
- **Citations:** 892 So. 2d 905; 2004 WL 1009239
- **Precedential status:** Published
- **Opinion:** Concurrence by Lyons
- **Judges:** Houston, Johnstone, Lyons, Rationale
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9936317

## How later opinions describe it (automated extraction)

- concluding that an employee with authority to indorse and process instruments for deposit had responsibility
- explaining that “our inquiry in Patrick was not properly focused”

## Opinion text

I concur in the result.
The loss Smith complains of arises from Utsey's deposit of checks made payable to "Specialty Motor Cars" in Utsey's account at AmSouth Bank rather than in Smith's account at SouthTrust Bank. As the main opinion points out, Smith did not have an exclusive right to the tradename "Specialty Motor Cars." The main opinion further points out that Smith could have appropriated the tradename to himself by invoking § 8-12-1 , Ala. Code 1975, but nothing before us indicates that he has done so. Under these circumstances, as the main opinion further points out, Utsey had just as much right to the use of the tradename "Specialty Motor Cars" as did Smith.
We are not here dealing with an impostor adopting the name of another individual whose exclusive right to use the name, vis-a-vis the impostor, is unquestioned. We had such a case in Patrick v. Union State Bank , 681 So.2d 1364 , 1371 (Ala. 1996), where this Court held that "a bank owes a duty of reasonable care to the person in whose name , and upon whose identification, an account is opened to ensure that the person opening the account and to whom checks are given is not an imposter." (Emphasis added.) Because Smith failed to establish his right to the name "Specialty Motor Cars" exclusive of Utsey's right to the same name, Smith cannot avail himself of the rule in Patrick .
Neither Smith nor his tradename, in which he had no exclusive rights, is "the person in whose name" the account was opened. Under these circumstances and under the rule established in Patrick , AmSouth owes no duty to Smith. Furthermore, I am unwilling to expand Patrick to embrace the circumstance, such as here, where the person claiming to be the victim of an impostor does not have the exclusive right to use the name. Whether this Court would overrule Patrick if that situation were presented is not before us.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9936317. Public record. Not legal advice.