68 S.W.2d 371 | Tex. App. | 1934
The points for decision as raised by the demurrers are that of whether or not (1) the alleged action was barred by the statute of limitation of two years, and (2) the alleged transaction was a bailment to the bank as such, imposing a relation of duty or trust in respect to the property, and with legal responsibility for loss resulting from want of care or for neglect of safe-keeping.
As against the demurrer, the facts are to be taken as true as stated in the petition. The material facts appearing are: That during the month of April, 1916, the plaintiff was a general depositor in the bank, and presented and delivered a Stradivarius violin made in 1710, and of great value, to an official, not named, of the defendant bank, which was a regularly chartered national bank, to be kept and stored in the vault of the bank for safekeeping. That the official, acting for and in behalf of the bank, agreed to take over "and to safely keep the said violin for plaintiff and to deliver (place) the same in its vault where other valuables were stored, and kept by depositors of said bank, and to deliver same to plaintiff when demanded and called for." That the bank, acting through its officers, with the knowledge and acquiescence of the board of directors, "established" or set up "and controlled" in connection with the banking business "safety deposit boxes and (in) safety vaults wherein its depositors were permitted and invited to store bonds, jewelry, silverware and other valuables belonging to them" without charge or recompense therefor other than that arising from their carrying a general deposit account in the bank. That at a time not stated, but prior to June, 1928, an officer or employee took "the violin from the bank out to his house for his use and pleasure and that while the said violin was in his house and in his possession his house caught fire and a portion thereof destroyed and the violin of the plaintiff was also destroyed by fire."
It is clear from the facts stated that the violin was the absolute property of the plaintiff. The bank had no lien upon it or special property in it. It was not deposited or held as a security for or in connection with any business transaction of the bank as a banking corporation, either present or prospective. It was a simple delivery of particular personal property to be kept for the owner without recompense, and to be returned when the owner should require it. This is the legal definition of a naked bailment. 3 R.C.L. § 187, p. 560; Schauler on Bailments, pp. 55-57; Kegan v. Park Bank,
The transaction by which the plaintiff claims that the bank had become a bailee of her violin was wholly with an employee or officer of the bank, and the effect to charge the bank rests entirely upon his power in that direction. The rule is general and uniform, limiting the responsibility of corporations for the acts of their officers and agents, in the absence of express authority to do the particular act, to those performed in the discharge of their ordinary duties in the usual course of business and within the sphere and scope of such duties. The power to bind the corporation can only be presumed to exist in its officers and agents within the scope of its ordinary business and their ordinary duties or incidental powers of the corporation. 3 Tex.Jur. § 37. p. 422; 2 Clark Skyles on Agency, § 209, p. 497; 7 C.J. § 646, p. 783. By the National Bank Act the powers of the defendant bank are confined and limited to banking powers only with such incidental powers as shall be necessary to carry on the business of banking.
Quoting from 3 R.C.L. 522: "In the case of a special deposit, the bank assumes merely the charge or custody of the property, without authority to use it, and the depositor is entitled to receive back the identical money or thing deposited. In such case the right of property remains in the depositor, and if the deposit is of money, the bank may not mingle it with its own funds. The relation created is that of bailor and bailee, and not that of debtor and creditor."
The phrase "special deposits" has been held to embrace bonds of the United States. First Nat. Bank v. Graham,
The defendant bank may not be held liable in the action on the ground of a general practice or authorization of the practice by the directors of storing a violin. The single transaction of keeping the present violin only appears from the allegations. The general allegation of permitting depositors to store bonds, jewelry, silverware, and other valuables in safety deposit boxes in the bank vault would not present evidence of consent of the bank to be a general bailee and depositor for violins placed openly in the bank vault.
The judgment is affirmed.