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(No. 3.

Vol. I.)

Scott v. The National BANK OF CHESTER VALLEY.


[FEBRUARY 16, 1874.]


The plaintiffs deposited bonds with the defendants for safe keeping, for the benefit

of the plaintiffs and without compensation. The bonds were stolen by the defendants' teller. Held, that the defendants were not liable except for gross negligence ; and that the fact that the teller had been abstracting the funds of the bank for two years and to the amount of $26,000, and had kept false accounts, and was supposed to remain in his employment after it was known that he had dealt in stock, did not constitute such negligence as to render the defendants liable.

ERROR to the court of common pleas of Chester County.

AGNEW, C. J. As early as the case of Tompkins v. Šaltmarsh, 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 answerable for the loss of the goods only in case of gross negligence, which, in its effects on con tracts, 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 derives from Coggs v. Bernard, 2 Lord Raymond, 909 (1 Smith's Lead. Cas. part I. 369, ed. 1872); 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 deposits 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 Vol. I.] Scott v. The National Bank of CHESTER VALLEY. [No. 3. this State is stated by Thompson, C. J., in Lancaster Bank v. Smith, 12 P. F. Smith, 54. He says : 1. 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

pertaining to the plaintif merely for

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. There 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 plaintiff, and never entered into the business of the bank. Being a bailment merely for safe keeping, for the benefit of the bailor, and without compensation, it is evident the dishonest act of the teller was in no way connected with his employment. Under these circumstances, the only ground of liability must arise in a knowledge of the bank that the teller was an unfit person to be appointed, or to be retained in its employment. So long as the bank was ignorant of the dishonesty of the teller, and trusted him with its own funds, confiding in his character for integrity, it would be a harsh rule that would hold it liable for an act not in the course of the business of the bank, or of the employment of the officer. There was no undertaking to the bailor that the officers would not steal. Of course there was a confidence that they would not, but not a promise that they should not. The case does not rest on a warranty or undertaking, but of gross negligence in care taking. Nothing short of a knowledge of the true character of the teller, or of reasonable grounds to suspect his integrity, followed by a neglect to remove him, can be said to be gross negligence, without raising a contract for care higher than a gratuitous bailment can create. The question of the bank's knowledge of the character of the teller was fairly submitted to the jury.

But it turned out that after the teller absconded his accounts were found to be false, and that he had been abstracting the funds of the bank for about two years, to an amount of about $26,000.

It was contended that the want of discovery of the state of his accounts for such a length of time, especially as he had charge of the individual ledger, was such evidence of negligence as made the bank liable.

The court negatived this position, and held that the bank was not bound to search his accounts for the benefit of a gratuitous bailor, whose loss arose not from the account as kept by him, but from a larceny, a transaction outside of his employment.

Vol. I.]

(No. 3.


error in this

3 into the cause of, was not the ca

We perceive no error in this. The negligence constituting the ground of liability must be such as enters into the cause of loss. But the false entries in the books, and the want of their discovery, was not the cause of the bailor's loss, and not connected with it. True the same person was guilty of both offences, but the acts were unconnected and independent.

True the bank did not discover in time the injury he did to it; but the very fact that it did not discover his false entries and his peculations repels the knowledge of his dishonesty. The neglect was culpable, and might have led to responsibility to those with whom they had dealings, if they suffered from that neglect. But this neglect to examine into his accounts was not the cause of the bailor's loss. His loss was owing to the immediate act of dishonesty of the teller, and not to his purloining the funds or falsifying the accounts of the bank. The argument of the plaintiff simply results in this, — that mistaken confidence is a ground of liability. But if this were the case, business would stand still ; for without a common degree of confidence in agents and officers, much of the business of the world must cease. The facts were fairly left to the jury, with the proper instructions.

Another complaint is, that the teller was suffered to remain in employ. ment after it was known that he had dealt once or twice in stock. Undoubtedly the purchase or sale of stocks is not ipso facto the evidence of dishonesty ; but as the judge well said, had he been found at the gaming table, or engaged in some fraudulent or dishonest practice, he should not be continued in a place of trust. So if the president of the bank, when he called on the brokers who acted for the teller in the purchase of stock, has discovered that he was engaged in stock gambling, or in buying and selling beyond his evident means, a different course would have been called for. No officer in a bank, engaged in stock gambling, can be safely trusted ; and the evidence of this is found in the numerous defaulters, whose speculations have been discovered to be directly traceable to this species of gambling. A cashier, treasurer, or other officer, having the custody of funds, thinks he sees a desirable speculation, and takes the funds of his institution, hoping to return them instantly, but he fails in his venture, or uccess tempts him on, and he ventures again to retrieve his loss or increase his gain, and again and again he ventures. Thus the first step, often taken without a criminal intent, is the fatal step which ends in ruin to himself and to those whose confidence he has betrayed. Hence, any evidence of stock gambling, or dangerous outside operations, should be visited with immediate dismissal. In this case, the operations of the teller in stocks, as a gambler in them, was unknown to the officers of the bank until after he had absconded. Upon the whole, the case appears to have been properly tried, and finding no error in the record, the judgment is affirmed.


[No. 3.


[TO APPEAR IN 109 Mass.]





In order to obtain the only available supply of water to throw upon a building on fire,

it was necessary to lay a hose across a railroad. The water was applied from the hose to the fire, and had diminished and would probably have extinguished it, but servants of the railroad corporation ran a train over the hose, and severed it, and thereby cut off the water from the fire, which then consumed the building They had notice about the hose, and might have stopped the train to permit the hose to be uncoupled. The railroad was crossed by another at grade a few hundred feet before the place where the hose was severed ; and the train was not stopped before the crossing, as required by the Gen. Sts. C. 63, § 93. Held, in an action brought by the owner of the building against the railroad corporation, (1) that the violation of the statute did not affect the defendants' liability ; (2) that the firemen had a right at common law to lay the hose across the railroad; (3) that it was immaterial that they were volunteers from another town ; (4) that it was immaterial that the plaintiff did not own the hose ; (5) that the severing of the hose was the proximate cause of the destruction of the building; and (6) that the defendants were liable for the negligence of their servants in severing the hose.

TORT against a railroad corporation for negligently severing a hose which was laid across their track in Somerville, and thereby cutting off the supply of water from a fire which was consuming the plaintiffs' factory, and causing the destruction of the building and its contents. Trial in this court, before Ames J., who with the consent of the parties withdrew the case from the jury and reported it to this court, to stand again for trial if the plaintiffs could maintain the action on the evidence reported, otherwise the defendants to have judgment. The substance of the evidence is stated in the opinion.

R. H. Dana, Jr., for the plaintiffs, cited Atkinson v. Newcastle of Gateshead Waterworks Co. Law Rep. 6 Exch. 404; Hart v. Western Raiiroad Co. 13 Met. 99; Safford v. Boston & Maine Railroad, 103 Mass. 583; Smith v. London f Southwestern Railway Co. Law Rep. 6 C. P. 14; Davis v. Garrett, 6 Bing. 716; Dickinson v. Boyle, 17 Pick. 78; Baltimore go Ohio Railroad Co. v. Thompson, 10 Maryl. 76; Willey v. Fredericks, 10 Gray, 357 ; Scott v. Shepherd, 2 W. Bl. 892; Vandenburgh v. Truar, 4 Denio, 464; Powell v. Salisbury, 2 Y. & J. 391 ; Gilbertson v. Richardson, 5 C. B. 502; Lynch v. Nurdin, 1 Q. B. 29; Borradaile v. Brunton, 8 Taunt. 535 ; Lee v. Riley, 18 C. B. (N. S.) 722; The George & Richard, Law Rep. 3 Adm. & Eccl. 467; Bailiffs of Romney Marsh v. Trinity House, Law Rep. 5 Exch. 204; Byrne v. Wilson, 15 Irish Law, 332; White v. Moseley, 8 Pick. 356; Saxton v. Bacon, 31 Verm. 540 ; Scott v. Hunter, 46 Penn. State, 192 ; Rylands v. Fletcher, Law Rep. 3 H. L. 330; Jones v. Festiniog Railway Co. Law Rep. 3 Q. B. 733.


T. H. Sweetser f N. St. J. Green (W. S. Stearns with them), for the defendants, cited St. 1855, c. 452, § 1; Gen. Sts. c. 63, $$ 93, 94; c. 24, $$ 7, 26; Sedgwick on Damages, (5th ed.) 82, and cases cited ; Sourdat, Traité de la Responsabilité, S$ 42, 44, 105, 106 ; Mott v. Hudson River Railroad Co. 1 Robertson, 585; Bailiffs of Romney Marsh v. Trinity House, Law Rep. 5 Exch. 204; Ryan v. New York Central Railroad Co. 35 N. Y. 210; Denny v. New York Central Railroad Co. 13 Gray, 481; Marble v. Worcester, 4 Gray, 395; Connecticut Insurance Co. v. New

York f New Haven Railroad Co. 25 Conn. 265; Anthony v. Slaid, 11 Met. 290; Silver v. Frazier, 3 Allen, 382; Williams v. Adams, Ib. 171, Hutchins v. Hutchins, 7 Hill, 104; New York Academy of Music v. Hackett, 2 Hilton, 219; Crain v. Petrie, 6 Hill, 522; Lamb v. Stone, 11 Pick. 527; Brown v. Cummings, 7 Allen, 507; Waite v. Gilbert, 10 Cush. 177; Parsons v. Pettingell, 11 Allen, 507.

CHAPMAN, C. J. The case is reserved upon the evidence offered by the plaintiffs. That evidence would authorize the jury to find substantially as follows:

On the 24th of January 1870, a little before midnight, the plaintiffs manufacturing establishment was discovered to be on fire. The buildings were situated in Somerville, about fifty feet south of the track of the Fitchburg Railroad. Two fire engines were soon brought upon the ground, belonging to the Somerville fire department, and one from Cambridge. Not being able to procure a supply of water otherwise, they laid the hose across the track, under the direction of the chief engineer of the Cambridge fire department, and obtained a supply from a hydrant on the north side of the track. The water was, by means of the hose, applied to the fire, and had diminished it, and would probably have extinguished it in a short time but for the acts of the defendants. At that time a freight train came along from the west, and though its managers had sufficient notice and warning, and might have stopped, and had no occasion for haste, they paid no attention to the hose, but carelessly passed over it with their train, and thereby severed it, and stopped the water. They injured the hose so much that it could not be seasonably repaired ; and thereby the plaintiffs' búildings and machinery were consumed. They did not delay to give time for uncoupling the hose, which would have delayed them but a few minutes.

One of the grounds taken by the plaintiffs is, that the defendants' train did not stop before crossing the Grand Junction Railroad, and thereby violated the Gen. Sts. c. 63, § 93, which require that trains shall be stopped before crossing another railroad at grade. The point of this crossing was in sight of the fire, and a few hundred feet west of it. But the object of the statute was solely to prevent the collision of trains at crossings, and had no reference to the extinguishment of fires. It is not applicable to this case.

The plaintiffs further contend, that the hose was properly and rightfully laid across the track, for the purpose of aiding in the extinguishment of the fire. This the defendants deny, because they had obtained a legal title to the land occupied by their railroad. It cannot be denied that it was their property, and they had the same right to its possession that other landowners have to their lands, so far as this case is concerned. But all

with their paid ne aind might", land thoughants. At that

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