I concur. The reply of the desk clerk to Miss Owen as found by the trial court must be construed as meaning that "they had facilities to take care of the car and when the car was turnedover to the hotel it would be taken care of and that the check for the same would be put in the box," (italicized portion added by me) the added italicized portion being the necessary condition to make the hotel liable for its care. This reply is reasonably susceptible of the interpretation that the hotel while it did not own or even control a garage had control of facilities, but even if it is interpreted most strongly in favor of the appellant, viz: that the hotel did not own or control its own garage but had to rely on a commercial garage, I think the opinion is correct. This condition was fulfilled by Mrs. Armes constructively handing the keys to the bellboy. I agree that Mrs. Armes telling the boy that the keys were in the car in answer to his question as to where the keys were was a direction to go and get them. It was a direction for only one purpose which the boy and Mrs. Armes both understood. When the boy got the keys in his possession by taking control of them in the car he did so as a servant of the hotel. The hotel held him out for the purpose of performing the service of procuring the keys and taking them to the one whose duty it was to attend to the disposal of the car. When the boy procured the keys they must be considered in the possession of the hotel just as a piece of luggage procured from the car by the boy. The condition above italicized was then fulfilled and the car was under the care and control of the hotel. Calye's case, 8 Rep. 63 [Calye's case, 3 Bac. Abr. 664, 4 Maule Sel. 306, 8 Barn. Cres. 9.] Clute v. Wiggins, 14 Johns. 175, 7 Am. Dec. 448;Mason v. Thompson, 9 Pick. 280, 20 Am. Dec. 471; Piper v.Manny, 21 Wend. 282; Jones v. Tyler, S.C.N. M. 576, 3 L.J.K.B. 166. *Page 19 This was a bailment at least for the purposes of delivering it to a commercial garage. But we do not in this case have the question of the hotel's responsibility if it had been turned over to a commercial garage. It never got there because of the conversion by the bellboy which must be considered the conversion by the hotel. The implications of the case of Andrew Jackson HotelCompany v. Pratt, 19 Tenn. App. 360, 89 S.W.2d 179, are to the effect that it would still have been infra hospitium. See alsoClute v. Wiggins, supra. If it was infra hospitium the hotel was liable to Mrs. Armes for the return of the car or its value, barring destruction by act of God, public enemy or Mrs. Armes' own negligence, by none of which the car was lost.
Even though the strict doctrine of infra hospitium is not applied in this case, I think the hotel is liable. If the car was delivered to the hotel only for the purpose of taking it to a commercial garage and such be not considered infra hospitium for that purpose, it was at least an ordinary bailment for thatpurpose. Being a bailment for that purpose the servant of the hotel and, therefore, the hotel, failed to carry out the terms of the bailment. It drove the car on a trip not within the purpose of the bailment and wrecked it. That involves a loss of the car because of an affirmative breach of the bailment contract and not a loss as in the case of Romney v. Covey Garage, 100 Utah 167,111 P.2d 545, when the car was lost by neglect of the bailee. It is not necessary in this case to prove negligence. The plaintiff having paid the Armes estate it was entitled to be subrogated to the right of the estate against the hotel and recover from the latter as held in the opinion. *Page 20