Scott v. National Bank of Chester Valley

• Decision Date: 16 February 1874
• Citation: 72 Pa. 471
• Parties: Scott & Brother <I>versus</I> The National Bank of Chester Valley.<SMALL><SUP>*</SUP></SMALL>
• Court: Pennsylvania Supreme Court

Page 471

72 Pa. 471

Scott & Brother versus The National Bank of Chester Valley.^*

Supreme Court of Pennsylvania.

January 21, 1874.

February 16, 1874.

January 21st 1874.

Before AGNEW, C. J., MERCUR and GORDON, JJ. SHARSWOOD, J., at Nisi Prius

Error to the Court of Common Pleas of Chester county: Of January Term 1874, No. 193.

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W. B. Waddell and W. Darlington (with whom was R. T. Cornwell), for plaintiffs in error, cited Story on Agency, sect. 452; Bank of Kentucky v. Schuylkill Bank, 1 Parsons 215, 216.

J. S. Futhey and P. Frazer Smith (with whom was G. F. Smith), for defendants in error, cited Coggs v. Bernard, 2 L'd Raym. 909; Mytton v. Cock, 2 Strange 1099; Finucane v. Small, 1 Espinasse 315; Shiells v. Blackburne, 1 H. Blackstone 158; Foster v. The Essex Bank, 17 Mass. 479; Tompkins v. Saltmarsh, 14 S. & R. 275; Doorman v. Jenkins, 2 Adolph. & Ellis 256; Lancaster County Bank v. Smith, 12 P. F. Smith 47.

The opinion of the court was delivered, February 16th 1874, by AGNEW, C. J.

As early as the case of Tompkins v. Saltmarsh, 14 S. & R. 275, it was decided that a delivery of a package of money to a gratuitous bailee, to be carried to a distant place, and delivered to another for the benefit of the bailor, imposes no liability upon the bailee for its safe-keeping, except for gross negligence. In that case, the package was stolen from the valise of the bailee, at an inn, in the course of his journey, after it had been carried to his room, in the usual custom of inns in that day (1822). The same rule is laid down by Justice Coulter, arguendo in Lloyd v. West Branch Bank. He says, a mere depositary, without any special undertaking, and without reward, is accountable for the loss of the goods, only in case of gross negligence which in its effects on contracts is equivalent to fraud. He further remarks, that the accommodation here was to the bailor, and to him alone, and he ought to be the loser, unless he in whom he confided, the bank or cashier, had been guilty of bad faith in exposing the goods to hazards to which they would not expose their own. These rules he derived from Coggs v. Bernard, 2 Lord Raymond 909, and Foster v. Essex Bank, 17 Mass. 501. In the latter case, the law of bailment was exhaustively discussed by Parker, C. J., and the conclusions were as above stated. It was further held, that the degree of care which is necessary to avoid the imputation of bad faith, is measured by the carefulness which the bailee uses towards his own property of a similar kind. When such care is exercised, the bailee is not answerable for a larceny of the goods, by the theft even of an officer of the bank. It is further said that from such special bailments even of money, in packages for safe-keeping, no consideration can be implied. The bank cannot use the deposit in its business, and no such profit or credit from the holding of the money can arise as will convert the bank into a bailee for hire or reward of any kind. The bailment in such case is purely gratuitous and for the benefit of the bailor, and no loss can be cast upon the bank for a larceny, unless there has been gross negligence in taking care of the deposit. These appear to be just conclusions, drawn from the nature of the bailment. The rule in this state is restated by Thompson, C. J., in Lancaster Bank v. Smith, 12 P. F. Smith 54. He says, "The case on hand was a voluntary bailment, or more accurately speaking, a bailment without compensation, in which the rule of liability for loss is usually stated to arise on proof of gross negligence." That case went to the jury on the question of ordinary care, and hence the observation of the Chief Justice that the same idea was sufficiently expressed by the judge below, in using the words "want of ordinary care." It may be proper, however, to say, that want of ordinary care is applicable to bailees with reward, when the loss arises from causes not within the duty imposed by the contract of safe-keeping, as from fire, theft, &c., and hence is not the measure in such a case as that before us, which we have seen is gross negligence. That case was one where the teller of the bank delivered the deposited bonds to a stranger calling himself by the name of the bailor, without taking sufficient care to be certain that he was delivering the package to the right person, and the bank was held responsible for his negligence. Then the teller in giving out the deposit, was acting in his official capacity, and hence the liability of the bank. The case before us now is different, the bonds being stolen by the teller, who absconded. This teller was both clerk and teller, but the taking of the bonds was not an act pertaining to his business as either clerk or teller. The bonds were left at the risk of the...