Frink v. Southern Express Co

• Decision Date: 11 February 1889
• Citation: 82 Ga. 33,8 S.E. 862
• Parties: Frink et al. v. Southern Express Co.
• Court: Georgia Supreme Court

8 S.E. 862

(82 Ga. 33)

Frink et al.

v.Southern Express Co.

Supreme Court of Georgia

February 11, 1889

1. Bonds—Action for Breach—Evidence.

Defendant, employed as conductor by a railroad company, and also as express messenger by plaintiff, received a package containing a large amount of money, and under instructions of plaintiff put it in a safe, which he locked, and put the key in his pocket. The safe was a small iron box, with an ordinary lock, and was kept in a car belonging to the said railroad company, to which two others besides defendant had access. The defendant ordered the car to be locked, but then remained absent from the car from 2 o'clock in the afternoon until 10 o'clock at night, partly on the business of the railroad company, and partly on his own. The car was left standing about 75 yards from the depot, with no house near. There were a good many gamblers and roughs in the vicinity at the time. On unlocking the safe the money was missing. Held, that an action for such loss could be maintained on defendant's bond, given for the faithful discharge of his duties, although the instructions of the plaintiff only required defendant to put the money in the safe.

2. Same—Hearsay Evidence.

In such case, evidence of the declarations of an officer of the plaintiff that he had sufficient evidence to convict a certain person of taking the money lost is inadmissible as hearsay, and being merely the expression of an opinion.

3. Same—Liability of Surety—Knowledge of Circumstances.

The bond recited that it should not be impaired by a change of place of the principal, or by his temporary absence from duty. Held, that a surety could not resist liability on the ground that no provision was made for watching the safe during the absence of the messenger, and that, when a vacation had been granted to the messenger, without the consent of the surety, the key of the safe had been given to C, who had access to the car where the safe was, and who thus had opportunity of having a duplicate key made; it appearing that when the surety signed the bond he had knowledge of the facilities which would be afforded to the messenger for the custody of any property coming into his possession.

4. Interest—On Breach of Bond.

Where a liability is incurred under a bond, the sureties are liable for interest from the time of demand made upon them; and where no demand is made, from the service of summons in an action on the bond.

Error from superior court, Bibb county; Gustin, Judge.

J. H. Martin and Bacon & Rutherford, for plaintiffs in error. Lyon & Estes, for defendant in error.

Simmons, J. The Southern Express Company sued Frink as principal, and Peacock and Carroll as sureties, on a bond given to the plaintiff by Frink, conditioned for the faithful discharge of his duties as express messenger, etc. It is alleged in the declaration that there had been a breach of this bond, by reason of the failure of Frink to carry and deliver safely a certain package containing $3,000, which had been intrusted to him by the plaintiff, and for the loss of which plaintiff was compelled to recompense the consignor. On the trial of the case the jury returned a verdict for the plaintiff against the principal and sureties for $3,000, and interest from the date the money was intrusted to Frink. The defendants made a motion for a new trial on 31 grounds, which motion was overruled by the court, and the defendants excepted. These numerous grounds, when analyzed, are, in substance, (1) that the verdict was contrary to the evidence, to the weight of evidence, and to law; (2) that the court erred in charging the jury that, whether Frink had instructions or not, his duty was to exercise ordinary care in looking after the safety of the money; (3) that the court erred in not allowing the defendants to prove certain admissions of Dempsey, the division superintendent of the express company, to Peacock, one of the defendants; (4) that the court erred in its instructions to the jury as to what acts of the creditor would release the surety; and (5) that the court erred in charging that, if the jury should find for the plaintiff, they should add interest from the time the money was lost.

1. We have carefully read the evidence in the record, and we think it is sufficient to sustain the finding of the jury. There is no controversy about the loss of the money. The defendant Frink was conductor on the Cochran & Hawkinsville branch of the Macon & Brunswick Railroad, as well as express messenger. The officers of the railroad company had consented for the express company to employ him as messenger. When he reached Cochran from Hawkinsville, about 2 o'clock in the afternoon of September 16, 1879, this package of money was delivered to him. He immediately put it in the safe furnished him by the express company, locked the safe, and put the key in his pocket. This safe was kept in a car which had three compartments, —-one for the white passengers, one for the colored, and the other for baggage. Carroll, one of the sureties on Frink's bond, was the baggage master, and had the key to the baggage compartment. There was also a colored man belonging to the crew of the train, employed by Frink and Carroll to assist them, who had access to the car. After receiving the money, Frink telegraphed to the agent at Hawkinsville that he had the money, and for that agent to meet him on the arrival of the train at Hawkinsville. Under orders from the railroad officials, he went with the engine 12 miles to procure water, and returned to Cochran about sundown. When he started with the engine he directed Carroll and the colored man above referred to to lock the baggage car. This car was left on the track some distance from the depot, and remained in that position from about 2 o'clock in the afternoon until about 10 o'clock at night. When Frink returned from the water station he did not go into this car and examine his safe, nor did he examine to see whether the car was locked or not. He simply went by the car, and saw that the door was closed. He then went on into the town, some three or four hundred yards off, and remained there until about half-past 9 o'clock at night, when he returned to the depot, and got his train ready, and at about 10 o'clock started for Hawkinsville. He did not examine the safe during all this time, and did not miss the money until he arrived at Hawkinsville, when he unlocked the safe, and discovered that it was gone. It was also in proof that about that time there were many gamblers and roughs in the town of Cochran. The safe was simply a small iron box, with an ordinary lock and key.

Under this state of facts, we think the jury were justified in finding a verdict against Frink and his sureties. Whether it was his duty or not, in the exercise of ordinary diligence, to carry this car along with the engine to thewater-tank, it was certainly his duty, when he returned, to look after this money more closely than he did. It seems to us that no prudent man, knowing the surroundings as Frink must have known them, would have left that amount of money in the car, 75 yards from the depot, no house being near by, from sundown until half-past 9 o'clock at night. While it was not his duty to neglect the business of the railroad, still, when he was not engaged in its business, it was his duty to look after this package, either in person or by some agent in whom he had confidence. It amounted almost to gross negligence for him to leave this car and his safe for so long a time at night, to go up town and play cards and visit drinking saloons. Would any prudent man have left $3,000 of his own money in that condition for such a length of time? We apprehend not. There was no error in overruling this ground of the motion. This seems to have been the view taken by this court when the case was here before. Express Co. v. Frink, 67 Ga. 201.

2. But it is urged in behalf of Frink that, having carried out the instructions of Bowles, the agent of the express company, by placing the package of money in his safe immediately on the receipt thereof, he had fully complied with his duty, and, if the money was afterwards lost, Frink would not be liable. The court below charged the jury upon this point that, whether Frink had such instructions or not, it was his duty to exercise reasonable care and diligence in looking after the money; and this charge is complained of by the plaintiffs in error. We think the charge of the court upon this point was correct. The instructions of the agent certainly did not embrace the whole duty of Frink, under the circumstances of this case. The special and only instructions which he says he received were, when he received a money package, to put it in the safe, lock the safe, and put the key in his pocket. They were doubtless given to him to prevent him from carrying the packages around on his person, or leaving them carelessly in the depot, or the like; but it certainly was not contemplated that his compliance simply with these instructions should relieve him of the entire responsibility of guarding the package after it was placed in the safe. He would not have been justified in leaving that car containing the safe a mile from any habitation, and we do not think he was justified in leaving the car 75 yards away from the depot, and equally as far from where any person dwelt, without a guard, or without seeing that the car door was locked. We agree with the judge who tried this case that the...