(105 S.E.) These counts allege an injury due to changing conditions at the place of work of the servant occurring in the progress of the work of other servants of the master in a different department of the service from that of the injured servant, where the circumstances alleged in the declaration are not such that any negligent act or omission of the master appears to have existed in the matter of fore seeing and guarding against the natural and probable result of reasonably to be expected acts of the fellow servants in carrying out the operations of the master. There is no allegation in the declaration of defect in the design or plan of the construction in or about the place of work of the plaintiff as contributing to the fall of the section of steel or iron pipe which injured the plaintiff, or that the circumstances were such that the defendant ought reasonably to have foreseen or anticipated that such an occur rence was likely to happen so as to unreasonably endanger the place of work of the plaintiff because of any defective design or plan of the operations of the defendant. See Hamlet v. Dupont De Nemours & Co., decided at this term of court (105 S. E. 529). The case falls within the class of cases ruled by N. & W. Ry. Co. v. Nuckols, 91 Va. 201, 21 S. E. 342, and Hambly's Case, 154 U. S. 349, 14 Sup. Ct. 983, 38 L. Ed. 1009, and the injured servant must be held to have as sumed the risk of injury due to the negligence of the fellow servants which caused the injury. Hence we are of opinion that the counts of the declaration in question do not state a case in which the plaintiff is entitled to recover independently of the statute. It is urged in argument in behalf of the plaintiff that the holding of this court in the recent case of Clinchfield Coal Corporation v. Ray, 121 Va. 318, 93 S. E. 601, in the classification of the Ray Case as falling within the doctrine of the Norment Case, 84 Va. 167, 4 S. E. 211, 10 Am. St. Rep. 827, reinstates as the law of this state some expres sions in the opinion in the Norment Case, to the effect that the mere fact that the servant is employed in a different department of service renders inapplicable the common-law doctrine of the assumption of risks of the result of the negligence of fellow servants, which was disapproved in the Nuckols Case. This is incorrect. The Ray Case expressly cites the Nuckols Case, and Hambly's Case, 154 U. S. 349, 14 Sup. Ct. 983, 38 L. Ed. 1009, on which the holding of the Nuckols Case upon the subject under consideration is based, and recognizes the doctrine of the Nuckols Case as the law of this state. The Ray Case held merely that "the principle on which rests the [Norment Case] is" the law of this state, and that was precisely the holding of the Nuckols Case with respect to the Norment Case. As said of the Norment Case in the Nuckols Case at page 202 of 91 Va., at "The decision in this case was perfectly correct, but there are expressions in the opinion which we do not consider to have been at all necessary to the conclusion reached by the court. * The doctrine of the Nuckols Case is that— other assumes all risks naturally incident to "(1) A person entering the service of anthe employment, including the danger of injury by the fault or negligence of a fellow servant." (Italics supplied.) "(2) The liability does not depend upon the fact that the servant injured may be in another department of the service from the wrongdoer. The test is, were the departments so far separated from each other as to exclude the probability of contact, and of danger from the negligent performance of their duties by employees of the different departments. they are so separated, then the servant is not to be deemed to have contracted with reference to the negligent performance of the duties of his fellow servant in such other department. If "(3) The liability does not depend upon gradations in employment, unless the superiority of the person causing the injury was such as to put him in the category of principal or vice principal." But this concerns merely the question of when the servant is to be considered as having assumed the risk of the negligence of coemployees. Where, however, the departments are so separated that, from the standpoint of the servant, the probability of contact and of danger from the negligent performance of their duties by the employees of the different departments is excluded, if the master performs his nonassignable duty of exercising reasonable care to provide a reasonably safe place of work for the servant, and the circumstances are such that the servant assumes, and may reasonably assume, that the master has performed or will perform such duty (which would be the situation "naturally" or normally), so that the servant is not to be taken to have assumed the risk of the negligence of his coemployees, the master is liable in case of his breach of his nonassignable duty just mentioned, although the injury of the servant is due to changing conditions at the place and occurring in the progress of the work. The holding in the Ray Case is based upon this view of the law, as appears from the opinion. That is to say, the liability of the master in such case, if it exists, is in truth based upon his breach of such nonassignable duty. The Norment and Ray Cases, and other like cases, exemplify a situation in which both of the features just mentioned are present, namely, the separation of the respective departments of work to the extent and with the result stated upon the application of the doctrine of the assumption of risks, and the failure of the master in his operations to properly perform his nonassignable duty aforesaid. The situation of the servant in view the operations of the master in the separate department of work, and hence the danger not being open and obvious to him, the servant has the right to and may reasonably assume that the master has performed or will perform such duty, the fact being also that the servant has not by other means acquired either actual or constructive knowledge to the contrary. The first and third counts under consideration do not allege a situation of fact from which either of the features aforesaid are made to appear. [5] 3. Is the third count of the declaration good independently of the Virginia statute aforesaid? This count alleges an injury caused by the failure of the master to discharge the alleged duty to warn as arising from changing conditions at the place of work due to the same causes as are alleged in the first and third counts. What is said above in connection with the consideration of the second and third counts of the declaration disposes of this question adversely to the plaintiff. The duty to warn in such case does not arise except as an incident to, and growing out of, the duty of the master with respect to providing a reasonably safe place of work. We have here presented the converse of the Ray Case, and, for the reasons above stated in connection with the references to that case, no duty to warn was imposed upon the master in the instant case. The third count of the declaration is therefore bad on demurrer. The sole question remaining for our consideration is the following: [6] 4. Is the fourth count of the declaration good? of St. Francis, 227 Pa. 254, 75 Atl. 1087, 136 Am. St. Rep. 879, 2 N. C. C. A. 381-there may be no liability of the defendant in the premises. But these matters, under the allegations of the declaration under consideration, are matters of defense. The allegations of ultimate fact contained in the fourth count of the declaration are to the effect that the defendant undertook the task alleged, in which case, even though it was a voluntary undertaking, the law, as has been long well settled, imposed upon the defendant the duty to use some degree of care in the discharge of the undertaking. And the breach of that duty is alleged in terms which, if true, constituted conduct of the defendant itself which was inhumane in the extreme, for the results of which the defendant was, in such case, unquestionably liable. Hunicke v. Meramec Co., 262 Mo. 560, 172 S. W. 43, L. R. A. 1915C, 789, Ann. Cas. 1915D, 493. See, also, 6 N. Law. Reg. (N. S.) pp. 323, 324. Therefore, because of the error of the court below in sustaining the demurrer to the fourth count of the declaration, the case will be reversed, with leave, however, to the plaintiff, if so advised and the facts should warrant such action, to amend the other counts of the declaration in accordance with the views expressed in this opinion. Reversed and remanded. PRENTIS, J., absent. (129 Va. 85) CONNER et al. v. WEST. This question must be answered in the af- (Supreme Court of Appeals of Virginia. Jan. firmative. It may or may not be true, as urged by the defendant, that in this case the whole cost of the medical attendance was defrayed by the defendant, and that the dismissal and forcible ejection of the deceased from the hospital, under the circumstances and with the result alleged, was the act of those in charge of the hospital, about whose selection and retention the defendant had exercised due care, so that it may develop on the trial of the case that the facts are such that under the doctrine of Va. Iron, etc., Co. v. Odle, 105 S. E. 107; Big Stone Gap Iron Co. v. Ketron, 102 Va. 23, 45 S. E. 740, 102 Am. St. Rep. 839; Va. Ry. & Power Co. v. Davidson, 119 Va. 323, 89 S. E. 229; 5 Labatt on Master and Servant, p. 6214; the authorities referred to in notes in 28 L. R. A. 546 et seq., 4 L. R. A. (N. S.) 49 et seq., 17 L. R. A. (N. S.) 1167, 40 L. R., A. (N. S.) 486, 30 L. R. A. (N. S.) 1207, 48 L. R. A. 531; Union Pac. R. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581; Taylor's Adm'r v. Protestant Hospital Asso., 85 Ohio St. 90, 96 N. E. 1089, 39 L. R. A. (N. S.) 427, 1 N. C. C. A. 438; and Gable v. Sisters 20, 1921.) I. Principal and surety ~71 Bond of bank cashier not limited as to duration. Bond of a cashier of a bank held to cover a continuing liability during the whole "term of service" of the cashier and not to be limited as to the duration of its obligation to any particular year or other period of the service of the cashier, in view of Code 1887, § 1120, and section 1157, as amended by Acts 1902-3-4, c. 578, even though during such period of service he resigned but was immediately reemployed. 2. Principal and surety 115(1)-Release of debtor to bank not release of surety on cashier's bond. Release by receiver of a bank without the consent of sureties on cashier's bond of the mere personal liability to the bank of a third person for an overdraft for which the cashier was also liable to the bank did not release the sureties. 3. Principal and surety 104(1), 118-Release of principal or extension of debt releases surety. A release of the principal debtor by the creditor, by an absolute release of the debt, (105 S.E.) or by an obligatory extension of the time of the bank read in evidence show that on payment without the consent of the surety, re- March 7, 1911, “J. T. Turner was elected leases the surety in toto. cashier," and that annually thereafter he 4. Principal and surety 115(1)-Release of was re-elected cashier. The minutes also lien releases surety. A release by a creditor without the consent of the surety, of any perfected lien or fund or property held by the creditor in such a way that he has the legal right to apply it in satisfaction of the whole or any part of the debt, releases the surety pro tanto, that is to the extent of the amount which could with certainty, as appeared at the time of the release, have been realized from the security. 5. Principal and surety show that at the meeting of the board of directors on September 7, 1911, the amount of the cashier's bond was on that date "reduced from $10,000.00 to $5000.00," although, it seems, no cashier's bond had been given up to that time. The record does not show precisely when the bond of the sureties aforesaid was given to the bank; but it was signed by two of the sureties, Conner and Savage, and first deliv115(1) - Subroga- ered as the bond of these two only, some time tion 33(1)-Surety not released by cred- prior to July 2, 1912, as the record shows itor's release of collateral personal obligation. that in the minutes of the board of directors As the surety's right of subrogation does meeting on July 2, 1912, such bond is refernot extend to mere personal collateral obliga-red to as having been executed and delivered tions, the release by the creditor of a collateral to the bank, and a committee was at that personal obligation of a third person will not release the surety even pro tanto. Error to County. Circuit Court, Northampton meeting appointed "to look into the financial standing of the cashier's bondsmen." Kelley signed the bond as surety on September 3, 1912, as it would seem, as it appears in evidence that the minutes of the board of diAction by A. S. West, receiver for Brick-rectors meeting of such date contains the folhouse Banking Company, incorporated, lowing entry: against George H. Conner and others. Judgment for plaintiff, and defendants bring error. Affirmed. This is an action at law by the defendant in error (hereinafter called the receiver), on the bond, which is not dated, given by the plaintiffs in error (hereinafter called sureties), to the bank, in the penalty of $5,000, | conditioned for the performance by one J. T. Turner, then cashier of said bank, of "the duties appertaining to a cashier," which duties and the stipulated duration of the obligation of the bond are specifically set forth in the bond itself, as follows: * * * "Now the conditions of this bond is such: That if the said T. J. Turner shall well and truly serve the said Brickhouse Banking Company, Incorporated, and shall not during his incumbency retain, convert, waste, embezzle, make away or lend any of the funds of the said without authority from proper officials, but shall deport himself honestly with all the funds that may pass through his hands belonging to the above named * company during his term of service, then this bond or obligation is to be void, otherwise to remain in full force." * * company, There was a trial by jury resulting in a verdict and judgment against the sureties for $4,070.85 with interest and costs. "On motion of T. D. Jefferson, second by Peter Bivens, James Kelley was taken as additional surety on the cashier's bond." The record shows that at the meeting of the board of directors on November 2, 1916, "bond of cashier was read and the president was ordered to see the parties who signed by mark and a witness to their signature." The president accordingly took the bond to each of the three sureties aforesaid, and, as the president testifies, "exhibited said paper and inquired of them whether they had executed the same as Turner's sureties, and was assured by each of them that they had done so"; and this action of the president was reported by him to the meeting of the board of directors on January 4, 1917, as appears from the minutes of that meeting. The record shows that two of the sureties signed the bond by mark, the other by his signature. All three of the sureties, however, testified in the case as witnesses in their own behalf and neither of them controverted the accuracy of the testimony of the president aforesaid on the subject of his having visited each of them and of his having asked them, between November 2, 1916, and January 4, 1917, whether they had executed the said bond "as Turner's sureties," and that he was answered by each of them, "that they had The material facts and issues are as fol- done so," as aforesaid. lows: The said J. T. Turner served as cashier of the bank, continuously and without interruption, from March 7, 1911, to May 29, 1917, when the receiver qualified as such and took in hand the assets and affairs of the bank. The minutes of the board of directors of There is a conflict in the oral testimony in behalf of the respective parties on the subject of whether the cashier, at the board of directors meeting on May 7, 1914, tendered his resignation in writing; there being testimony for the receiver to the effect that no resignation of the cashier was ever tendered, and testimony for the sureties to the effect that a resignation of the cashier in writing was sent in to the board of directors at its May meeting in 1914. The record is silent as to whether this resignation, if sent in to the board of directors, was conditional or unconditional. There is also an issue made in the case as to whether the resignation aforesaid, if tendered, was accepted by the board of directors. On this issue certain oral testimony was introduced on behalf of the receiver to the effect that if the resignation was ever tendered to the board of directors it was never accepted. And the sureties offered certain oral testimony to the effect that the resignation was accepted at the said May meeting of the board in 1914, which the trial court refused to allow the sureties to introduce, and this is made the basis of several assignments of error. It appears in evidence that the minutes of the directors' meeting of May 7, 1914, show an entry which is as follows: "On motion by W. H. Matthews, second by L. Treherne, that the cashier's statement concerning his resignation not be considered. Motion lost." That another portion of the minutes of the same meeting show the following entry: "On motion by T. D. Jefferson, second by D. R. H. Allen, the cashier is directed to bring into the board of directors a report of the financial condition of the bank from the time he took charge of the bank to June 1, 1914." On the minutes of the meeting of the board of directors on June 4, 1914, appears the following entry: "Next reading of the cashier's report on motion of L. Treherne and sec. by T. D. Jefferson that report be received. Carried." And there is other evidence, which is undisputed, to the effect that said cashier served as cashier of the bank continuously, as aforesaid, from March, 7 1911, to May 29, 1917, without any interval of time during that period when he was not acting and considered by the bank and by himself as being in the employment and service of the bank as cashier; and that no security, other than the said bond was ever given to the bank for the faithful performance of his duties by said cashier, and none other asked by the bank during the whole period of his service as cashier. two overdrafts, one of one R. B. Upshur for $3,467.68 and the other of a partnership firm of R. B. Upshur & Co. for $1,329.31. The partner, who, with R. B. Upshur, composed this firm, was insolvent and wholly irresponsible financially. R. B. Upshur owned several parcels of real estate, the largest and most valuable of which was sold under a deed of trust after the bank went into the hands of the receiver, and all of these parcels of land were incumbered with deeds of trust, in several instances overlapping each other, and it was extremely doubtful whether a judgment even for the individual overdraft of said Upshur could be realized by legal process. Upshur's most valuable asset was a bond of a debtor of his for $2,500 payable to Upshur and secured by a deed of trust, but this could have been assigned by Upshur and thus perhaps could have been placed out of the reach of his creditors. Two suits by the receiver to recover the amounts of said overdrafts were pending in court and set for trial. On the day of trial Upshur by counsel offered to confess judgment for the individ ual overdraft of himself if the receiver would accept the same in full compromise settlement of the two suits and withhold execution thereon till October 1, 1918. To this proposition the receiver replied that if Upshur would assign said $2,500 bond to him as security for the payment of such judgment he would accept the offer; being of opinion upon the advice of counsel, that such a settlement was for the best interest of all interested in realizing as much as possible from Upshur and Upshur & Co. Accordingly the assignment of the $2,500 bond was made to the receiver by Upshur and the compromise settlement was consummated; the effect of which was to release Upshur and his insolvent partner in the firm of Upshur & Co. from all liability for the $1,329.31 Upshur & Co. overdraft. By the time of the trial in the court below of the instant case the amount which had been realized on execution upon the judgment against Upshur, together with the amount which could be realized on the $2,500 bond, rendered certain the payment in full of the judgment and the relief of said sureties to that extent. So that $3,467.68 of the original liability of the cashier was not included in the amount of said judgment against the sureties. But the said overdraft of Upshur & Co. for said sum of $1,329.31 was included in the amount of such judgment. The compromise settlement aforesaid was made without consultation with and without the consent of said sureties. They do not claim that anything more, if so much, could have been realized out of Upshur or his part The breach of duty of the cashier from which the liability arose which is covered by the judgment under review occurred after May 7, 1914, when the sureties claim the resignation of said Turner as cashier was ten-ner or out of any property of theirs in esse dered and accepted; or if not accepted, certainly tendered as they claim, as aforesaid. Among the liabilities of said cashier to the at the time of the settlement, if the receiver had not compromised as aforesaid and had obtained judgment for the amounts of both (105 S.E.) and his partner from the personal obligation charge of his duties by the cashier was unof the said sum of $1,329.31, overdraft, with- doubtedly brought to the attention of all out the consent of the sureties, by operation three of the sureties by the president of the of law released the sureties in toto from that bank in the latter part of the year 1916 by amount of their obligation to the bank. his interview with them at that time, the manifest object of which was to ascertain the status of the bond as a continuing obligation, and they all three acknowledged in substance the existence of their obligation under the bond "as Turner's sureties," and not until after this suit was instituted ever raised any question as to its being a continuing obligation. The record shows that the said cashier was by said compromise in no way released from his liability to the bank for said $1,329.31 overdraft. Mapp & Mapp, of Accomac, and John E. Nottingham, of Franktown, for plaintiffs in error. N. B. Wescott and S. James Turlington, both of Accomac, for defendant in error. SIMS, J. (after stating the facts as above). The questions presented by the assignments of error, which are involved in the decision of the case, will be passed upon in their order as stated below. [1] 1. Was the bond of the sureties for the cashier limited as to the duration of its obligation to any particular year or other period of the service of the cashier; or did it cover a continuing liability during the whole term of service of the cashier from the time when the bond was given until the end of such service May 29, 1917? The first portion of this question must be answered in the negative; the latter portion in the affirmative. We have no hesitancy in saying that, from the face of the bond itself, this is the proper construction of it. In view of our construction of the bond, it is immaterial that the cashier was employed by the year, or whether he was an officer or merely an employee of the bank. In any case the length of time he might continue in the service of the bank was dependent upon the will of the board of directors of the bank as See Elam v. Bank, 86 Va. 92, 9 S. E. 498, for the holding that the cashier's bond there involved was a continuing obligation covering successive years of service, to which the cashier was annually re-elected from year to year; the statute law referred to in that case being similar to Code 1887, sec. 1120, and section 1157 as amended by Acts 1902-3-4, p. 906, in existence during the period covered by the bond in the instant case. The cases of U. S. v. Wright, Fed. Cas. No. 16,775, 1 McLean, 509, Gilbert v. Luce, 11 Barb. (N. Y.) 91, and Atkins v. Bailey, 9 Yerg. (Tenn.) 111, are urged in argument for the sureties as sustaining the position that the mere resignation of an officer, regardless of terminates the term of office. But these caswhether the resignation is accepted or not, es all involve offices created by law, and not those created merely by contract; and they also involve unconditional resignations. There is a conflict of authority, however, as ty of an officer holding an office created by to how long the liability continues of a sure law; the conclusions reached in the several jurisdictions depending in large measure up27 Am, & Eng. Encyl. Law (2d Ed.) p. 535; on the existing statutes affecting the subject. Coplin v. McCalley, 1 Leigh (28 Va.) 280, 19 evidenced by their entering for the bank into contract or contracts with the cashier for his Am. Dec. 748. And it is elementary that a service. And there is nothing in the terms of public office, created by law, differs in imthe bond which limits the duration of its ob-portant particulars from an employment, alligation to the period of any particular con tract of service of the cashier. Certainly it is not limited to a period of one year; nor, to though the latter be a public employment. As said by Chief Justice Marshall in U. S. v. C. C.) 96: a period of two years; nor, as we think, to any period short of the cessation of the serv* Although an office is 'an employice of the cashier. Plainly the bond was giv-ment,' it does not follow that every employment en and accepted as a continuing obligation to is an office. A man may certainly be employed cover the whole period during which the under a contract, express or implied, to cashier might remain continuously in the service of the bank. We are strengthened in opinion that this view is correct by the fact that the evidence shows that such was the cotemporaneous mutual construction of the bond by both the bank and the sureties, up until the end of the services of the cashier and the appointment of the receiver. The bank unquestionably relied all along on the bond as a continuing obligation. And the fact that the bank was relying upon this bond as a continuing obli perform a service, without becoming an officer." But, in view of our conclusion above stated, that the proper construction of the bond in the instant case is that it is a continuing obligation, covering the whole time of the continuous service of the cashier, without regard to how that service may have been divided up into successive contract periods of service, it would be wholly unprofitable for us to enter here upon the various distinctions and considerations which might affect the correctness of our conclusion if this were the |