Rex v. James

CONNER, Chief Justice. In November, 1896, appellant Rex deposited with Theodore Heyck, as warehouseman and bailee for hire, certain personal property to be kept until called for. Later Heyck sold his warehouse to appellee Henry James with agreement, as Heyck alleged, that he, James, would keep and deliver the property to the owner. James denied that in receiving the goods he assumed any liability therefor, but it is undisputed that he received possession of the warehouse with Rex’s property therein and that he accepted a list of all the articles on deposit. Yet later, James in turn sold the warehouse and delivered possession thereof, together with the personal property mentioned, to one, H. H. Miller, husband of Mrs. Grace Miller who had purchased from J ames. II. II. Miller converted the property to his own use, and appellant Rex instituted this suit for the value of the property he had so deposited. The trial resulted in a judgment for Rex against H. H. Miller and Mrs. Sophie Heyck, surviving wife and successor in estate of Theodore Heyck, who had died in the meantime, but in favor of Henry J ames as against all other parties. Without effort to dispose of the assignments in order, we think the judgment in this case erroneous, regardless of the rejected testimony of *241 John Sayles, E. A. Heyck and others to the effect that it was expressly understood at the time appellee James received the goods in controversy that he would assume responsibility therefor and deliver to the owner. The undisputed testimony is to the effect that he did receive the goods under circumstances making him liable at least as a depositary bailee, and if to him we apply the rule insisted upon in his behalf, towit, liability for gross negligence, it seems almost, if not quite, undisputed that he was guilty of gross negligence in the delivery of the goods to Miller, particularly in the absence of any evidence that Miller a responsible person, and in view of his announced purpose of disposing of the goods. In the case of Wear v. Gleason, in the Supreme Court of Arkansas, 13 S. W., 757, it was held that a gratuitous bailee or depositary without reward was guilty of gross negligence in delivering the bailed property to an apparent stranger without effort to verify his claim to the property and without inquiry as to its ownership. It was said: “He thus manifested a culpable indifference to the safety of the property committed to his care, which, according to all the authorities which have come to our notice, makes him liable for the value of the goods,” citing a number of cases, including the case of Nelson v. King, 25 Texas, 655, by our Supreme Court. In that case (Nelson v. King) the depositary of a chattel was held liable to the bailor for the value because of a delivery of the property to one not the owner, and it has been cited a number of times with approval by our own court. See Roberts v. Yarboro, 41 Texas, 450; Clay v. Gage, 1 Texas Civ. App., 661 (20 S. W., 948). Indeed, distinctions in the degrees of care required of the several classes of bailees would seem to have no application in the case before us. It is said in 3 Am. & Eng. Enc. of Law, 754, 2nd ed., that: “The degree of diligence which is exacted of each of the several classes of bailees in respect to the care of the thing bailed has no application to the rights of the bailee in respect to its return and delivery. Every bailee is bound at his peril to know that the person to whom he delivers the chattel is the proper person to receive it, and if he delivers it to the wrong person, though acting in perfect good faith, he is nevertheless liable for its conversion.” Again in the 30 Am. & Eng. Enc., 57, 3nd ed., it is said: “A warehouseman is liable for conversion of property where, without authority, he delivers it either negligently, intentionally, or by mistake to one not entitled to it, and he is liable although the mistake is not the result of any want of ordinary care or prudence on his part.” In other words, the duty of appellee James was absolute to either return the goods to his bailor Heyck or to deliver them to the true owner, and his failure to do so renders him liable at the suit of the bailor for the value. In addition to the authorities we have already cited, see Story on Bailments, sections 41, 53, 61, 79, 96, 98, 103, and 105. Appellant Rex insists that the uncontradicted testimony is to the effect that the chattel converted was of the value of three hundred and *242 twenty dollars and seventy-five cents instead of one hundred and fifty dollars as found by the court, and that the judgment should therefore have been rendered for the full value as he gave it in his testimony. We, however, are not prepared to adopt his proposition. While it seems that no other witness testified expressly to values, the articles were described by some of the witnesses and such description'necessarily entered into the determination of the value. Appellant Bex’s estimate was necessarily largely matter of mere opinion, and affords no certain criterion. We feel, therefore, unable to say that it affirmatively appears that the judgment is wrong in this respect. It follows from the foregoing conclusions that the judgment of the court below in favor of appellant Bex as against Mrs. Sophie Heyclc should be affirmed; that the judgment in favor of appellee James should be reversed and here rendered in favor of appellant Bex for the amount of the judgment below; that appellant Mrs. Sophie Heyek should have judgment over against appellee James for any sum she may be required to pay under this judgment. The prayer in the brief of appellee James that judgment in his favor over against H. H. Miller be rendered for all such sums as he may be required to pay out under this judgment must be denied for the reasons that nothing in the record shows service upon Miller of appellee James’ alternative cross action, or that Miller answered thereto, and no appeal from the judgment as rendered was taken by appellee James. Harris v. Schlinke, 95 Texas, 88; Mayhew v. Harrell, 57 Texas Civ. App., 509 (122 S. W., 957); Romar v. Morris, 59 Texas Civ. App., 378 (126 S. W., 663). Affirmed in part, and reversed and rendered in part.