First State Bank v. Connoley , 131 Va. 479 ( 1921 )

Sims, J.,

after making the foregojng statement delivered the following opinion of the court.

[1] In the view we take of the case, the sole question presented by the assignments of error which we need to decide is the following:

1. Is the defendant, Connoley, liable to the plaintiff bank for the money which was lost by him while he was acting in disregard of his instructions from the bank in accordance with which he accepted the undertaking confided to him.

This question must be answered in the affirmative.

[2] The defendant, Connoley, was undoubtedly in the inception of the transaction which was the basis of this action, a gratuitous bailee or mandatory, acting for the sole benefit of the bank, the bailor; and if the defendant had not exceeded or disregarded his instructions the law of the case would have been in accordance with the instructions which were given by the trial court. For all of the authorities lay it down that a gratuitous bailee can be held liable for gross negligence only. 5 Cyc. 186; Carrington v. Ficklen’s Ex’rs, 73 Va. (32 Gratt.) 677, and numerous other Virginia cases and other authorities. What is gross negligence in a given case is a matter not always easy to determine, as it will depend upon all the circumstances of the particular case. However, that question does not arise in the case before us, for the reason that the uncontroverted evidence plainly shows that the defendant disregarded and exceeded his instructions in accordance with which he had accepted the undertaking confided to him, when he took the draft to Lynchburg and cashed it. When he took that action he did so outside of the authority conferred upon him as bailee. That authority extended no further than his taking the draft in the first instance to Hicks, and subsequently, under Hicks’ direction, to Mclvor. He had no authority from any one to take the draft any further. He should have left the draft with Mclvor or have brought it back to and have left it with Hicks, according to his instructions from the bank. When he went further, and took the draft on to Lynchburg, he assumed an authority which had not been conferred upon him, and, in truth, acted, in so doing, not as bailee, but as a wrongdoer, and became personally responsible to the owner for the loss occasioned by such conduct, irrespective of any want of due care on his part. See note to 4 Am. Law Rep. p. 1225 et seq. and authorities cited.

[3] As said in the note, supra (4 Am. Law Rep. p. 1225) :

“If a gratuitous bailee undertakes to deal with the subject of the bailment in a manner not warranted by his instructions, expressed or implied, * * and the property is lost, he is liable therefor, irrespective of any want of due care on his part, unless his act is ratified by the bailor with full knowledge of the circumstances.” Citing a númber of authorities, among which is a supreme court decision, in the case of Walker v. Smith, 4 Dall. 389, 1 L. Ed. 878-9. In that case the defendant was a gratuitous bailee of certain goods, which the plaintiffs by letter requested him to hold at the disposal of one B, but not to deliver them to B without being paid for the amount of the goods, or having such security given therefor as was satisfactory to the defendant, bailee. The defendant received the goods, but delivered them to B without receiving payment or exacting any security. Held: The defendant was liable for the value of the goods.

[4] As said of a bailee, who receives a deposit gratuitously, in Jenkins v. Bacon, 111 Mass. 373, 15 Am. Rep. 33: “Except as to the degree of diligence and care required of him, his general obligation is the same as if he had assumed the trust upon the promise or with the expectation of regard.” Citing numerous authorities.

. So too, if a bailee for hire makes an unauthorized use of the subject of the bailment, he is liable for any resulting lpss or damage irrespective of' whether he is or is not negligent. Spencer v. Pilcher, 35 Va. (8 Leigh) 565; Harvey v. Epps, 53 Va. (12 Gratt.) 153.

The uncontroverted evidence in the case before us is express that the bank gave the defendant no authority to take the draft to Lynchburg after his statement that he would not return until in the night; nor was there any evidence whatsoever before the jury to support a finding that the defendant had the implied authority to do so.

[5] We feel constrained, therefore, to set aside the verdict and judgment under review, because of the refusal of the trial court to give instruction No. 2, quoted above, asked for by the plaintiff; and, as the facts of the case seem to be fully before us and are uncontroverted, and are such that we feel compelled to say that the plaintiff is entitled to final judgment against the defendant for the sum of $1,000.00, the amount sued for, we will enter judgment accordingly for that sum, with interest from the date of the entry of the order, and for the costs of the plaintiff in this court and in the court below.

Reversed and final judgment entered.