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this case by receiving the parcel on an understanding that he will carry it, the bailee undertakes to do so, and though there is no benefit to accrue to him from the performance of the trust, the delivery to him of the parcel is a sufficient consideration for the undertaking. Another illustration is the case of one who, at his neighbor's request, receives some article of value to be cared for during the latter's absence from his home or place of business. Here the trust is one of safe keeping only, but the law implies a promise commensurate with the trust.

If the trust to carry and deliver in the one case, or to keep safely in the other is not performed, the bailee is guilty of a breach of duty unless he has some legal excuse for the failure. It would be a good legal excuse if the goods are injured, lost or destroyed without the bailee's fault : of this there can be no question.

What, then, would be a loss or injury without the bailee's fault? One occurring by inevitable accident would certainly be; but this term is somewhat ambiguous and uncertain, and few accidents occur that might not, by extreme care, have been avoided. It has been said in another place that for accidents occurring without fault no action will lie; and those accidents are usually spoken of as inevitable which have occurred notwithstanding the exercise of such care as might reasonably have been expected under the circumstances. The utmost human vigilance is not to be anticipated or demanded under the ordinary circumstances of every day life.

The bailee who accepts a trust for the benefit of the bailor is of course obligated to its performance, and he is not discharged from this obligation unless he has done all that can reasonably be required of him in respect to it. But he has not done all that can reasonably be required of him if he has been guilty of negligence; for negligence implies fault, and to be in fault in discharging a legal duty to another is to place one's self under legal obligation to make good the consequent loss.

*Negligence, what is. The question of legal liability [*630] is therefore one of negligence, and its consideration 1 Ante, p. 91–2.

the editor's note thereto, for an exam. ? See Holmes v. Mather, L. R. 10 ination of the subject of accident, Exch. 261; S. C. 14 Moak, 548 and


demands, first, a determination of what negligence is. To reach this we are not to look solely at a man's acts or his failure to act: the term is relative, and its application depends on the situation of the parties, and the degree of care and vigilance which the circumstances reasonably impose. That degree is not the same in all cases : it may vary according to the danger involved in the want of vigilance. A few simple illustrations may inake this apparent. It might not be negligence in one having charge of an infant to permit it to wander in the fields where friendly people would be continually within call and no peculiar danger was to be looked for, when to allow the same liberty in a country where the people were few and ferocious beasts abundant would be highly culpable if not criminal. The degree may vary also according to the benefit, if any, that the party assuming the duty is to derive from its performance : if he is paid a large sum for undertaking it, the evident understanding is that he shall give to it an attention and vigilance in proportion, and he is justly put to a watchfulness that is not expected of one who, on request, undertakes a mere friendly commission. The degree may also vary according to the value of the thing in respect to which the trust is assumed, not only because the loss that might result from want of care would be more severe, but also because the danger of loss generally bears some proportion to the value; a jewel being unsafe where something of little worth might be exposed with impunity, and consequently requiring more care and vigilance for its protection. All these circunstances are to be taken into account when the question involved is one of negligence ; for negligence in a legal sense is no more nor less than this: the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person

suffers injury.' Some writers classify negligence as gross [*631] *negligence, ordinary negligence and slight negligence;

Negligence is the absence of care according to circumstances. Turnpike Co.,v.&c.,Railroad Co.,54 Penn. St. 345: Philadelphia, &c., Railroad Co.o.Stinger, 78 Penn. St. 219; Texas, &c., R. R. Co. 0. Murphy, 46 Texas, 356; Blaine v. Cbes. & Ohio R.R. Co., 9 W. Va. 252; Nor. Cent. R. R. Co.

o. State, 29 Md. 420; Barber o. Esses, 27 Vt. 62.

"The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduet of human affairs would do." Alderson B. in Blyth o. Birmingham Water


but this classification only indicates this : that under the special circumstances great care and caution were required, or only ordinary care, or only slight care. If the care demanded was not exercised, the case is one of negligence, and a legal liability is made out when the failure is shown.'

Applying these principles to the case of a gratuitons bailee we perceive that that is not to be attributed to him as negligence which is only a failure to apply to his charge the highest degree of vigilance and prudence, because to require so much would . not be reasonable. Neither on the other hand should he be excused for a loss which has occurred from an entire neglect of his charge, for this would be equally unreasonable.' His undertaking must consequently be for something which falls short of the highest vigilance, but which, on the other hand, is not entire neglect.

Degrees of Negligence. Sir WILLIAM JONES has undertaken to define the degrees of care which 'can justly be required of bailees under the different classes of bailments. Where the bail. ment is for the mutual benefit of both parties, he finds it just to require that degree of care which every person of common prudence and capable of governing a family ordinarily takes of his own concerns; and this he designates ordinary diligence. If, on the other hand, the bailment is for the benefit of the bailee, it is proper to require of him the highest vigilance, or such as a very cautions and vigilant man would take of his own possessions, while if it were for the benefit of the bailor exclusively, the bailee is chargeable only with such slight care as a man of common sense, however inattentive, would give to his own affairs. works, 11 Exch. 781, 794, “The ab. · Hinton o. Dibbin, 2 Q.B. 644,661; sence of such care as a person is by Wilson v. Brett, 11 M. & W. 113, 115; law bound to take.” Hyman v. Nye, Steamboat New World v. King, 16 L. R. 6 Q. B. D. 685; Lindley, L. J. How. 469, 474. A bailment for the "Actionable negligence consists in mutual amusement and recreation of the neglect of the use of ordinary both parties, is to be considered one care or skill toward a person to for the benefit of both, and the want whom the defendant owes the duty of ordinary care in the bailee will of observing ordinary care and skill, render him liable. Carpenter 0. by which neglect the plaintiff with- Branch, 13 Vt. 161. out contributory negligence on his 2 See Griffith 0. Zipperwick, 28 part has suffered injury to his person Ohio, (N, s.) 388. or property.” Breit, M. R. in Heaven 9 Jones on Bailments, 4-10. 0. Pender L. R. 11 Q. B. D. 503, 507.



We have here the three degrees of extreme care, ordinary [*632] care and slight care demanded in different cases, *accord.

ing to the circumstances and the nature of the trust; the highest being demanded when the person who is to be benefited by the trust is himself the person to perform it, and the lowest when he accepts the trust as a mere favor to another. But, as has already been said, these degrees are subject to be affected by the nature of the thing in respect to which the trust is created, its value, its liability to injury, etc.'

Liability as gratuitous bailee only arises when the trust has once been assumed: the promise to accept such a trust is void for want of consideration, and probably after he has accepted the bailee may surrender it without performance if he restore the property uninjured, and without having put the bailor to any inconvenience or damage.' But any dealing with the subject of the bailment in a manner not warranted by the understanding, is in law wrongful. Therefore, if one having undertaken to carry and deliver money for another, shall hand it over to a third person to be carried, from whom it is stolen or by whom it is lost, the loss must fall upon the bailee, who alone was trusted by the owner. 8

The question whether the proper degree of care has been observed is one of fact, not of law. A bailee is not responsible if the property is stolen from him without his fault, and this rule applies to a bank from which a special deposit is stolen by its officers. Neither is a railroad company liable for the loss,

I Coggs o. Bernard, 2 Ld. Raym. 909; Foster 0. Essex Bank, 17 Mass. 479; Chase o. Mayberry, 3 Harr. 266.

2 Thorneo. Deas, 4 Johns. 84. Com. pare Shillibeer 0. Glyn, 2 M. & W. 143.

3 Colyar o. Taylor, 1 Cold. 372. If one who undertakes to carry money, sends it by mail, he is responsible for the loss. Stewart o. Frazier, 5 Ala. 114. See Bland o. Womack, 2 Murphey, 373; Jenkins o. Motlow, 1 Sneed, 248; Graves 0. Ticknor, 6 N. H. 537.

• Chase o. Mayberry, 3 Harr. 266; Jenkins D. Mollow, 1 Sneed, 248;

Beatty o. Gilmore, 16 Penn. St. 463,
Storer o. Gowen, 18 Me. 174; Tracy e.
Wood, 3 Mason, 132; Doorman
Jenkins, 2 Ad. & E. 256,

6 Foster o. Essex Bank, 17 Mass 479; DeHaven o. Kensington Bank, 81 Penn. St. 95. Bank liable when bonds specially deposited are stolea if it has been grossly negligent. Whitney o. Nat. Bank, 55 Vt. 154. See Pattison o. Syracuse Nat. Bank, 80 N. Y. 82; Nat. Bank o. Graham, 100 U. S. 699; Wylie 0. Northamptoa Bank, 119 U. S. 361; Compo. Carlisle, &c., Bank, 94 Penn. St. 409. So of an individual bailee of money. Broa

withont fault, of property which it has received to carry gratuitously."

*Bailments for the benefit of the Bailee. The case of [*633] a bailment for the exclusive benefit of the bailee is the opposite of that already considered, and requires of the bailee the exercise of more than the ordinary care and vigilance. A common instance is the gratuitous loan of his horse by the owner to a friend for a particular journey. If in such a transaction the party accommodated is guilty of even slight neglect, and the horse is lost or injured in consequence, this is such negligence as will render him responsible.'

Bailments for Mutual Benefit: The most common bailments are those from which each party expects, or is supposed to receive, some advantage. Some of these cases are simple, involving a


nenburg 0. Charman, 80 Ind. 475; Caldwell o. Hall, 60 Miss. 330. Of a bailee of a ring left be raffled for contrary to law. Woolf o. Bernero, 14 Mo. App. 518. A gratuitous bailee, it is held, is only liable for gross negligence. Patterson o. McIver, 90 N. C. 493; Carrington 0. Ficklin, 32 Gratt. 670. In a case where, with bailor's knowledge, the bailee had put his bonds in a locked drawer from which they were stolen it was held there was no liability and the rule was stated that a gratuitous bailee “is bound to observe such care in the custody of property committed to his keeping as persons of ordinary pru. dence in his situation and business usually bestow on the custody and keeping of like property belonging to themselves.” Schermer o. Neurath, 54 Md. 491. See Rea 0. Simmons, 141 Mass. 561; Brant o. McMahon, 56 Mich. 498.

· Van Gilder 0. Chicago, &c., R. R. Co., 44 Iowa, 548; Flint, &c., R. Co. o. Weir, 37 Mich. 111, case of gratuitous carriage of baggage. So only liable for gross negligence of baggage gratuitously stored. Clark v. Eastern

R. R. Co., 139 Mass. 423. But if one receives money to be carried gratuitously, and can give no account whatever of its disposition, a presumption of gross neglect arises against him. Boyd 0. Estis, 11 La. Ann. 704. See Fairfax 0. N.Y. Cent. R. R. Co., 67 N. Y. 11.

· Phillips 0. Coudon, 14 Ill, 84; Howard o. Babcock, 21 III. 259; Watkins v. Roberts, 28 Ind. 167.

He is responsible for even the slightest ct, and when a loss occurs the burden is upon him to prove that it was the result of inevitable accident or of a wrongful act which, in the exercise of due diligence, could not have been foreseen or prevented. Scranton o. Baxter, 4 Sandf. 5; Wood 0. McClure, 7 Ind. 155. Such a bailee of a flag which is injured by a hail storm is not liable from the mere fact of injury. Beller o. Schultz, 44 Mich. 529. If one furnishes a carriage gratuitously to three persons and a fourth without his knowledge gets in, he is not liable if such an one is injured by a runaway. Siegrist v. Arndt, 86 Mo. 200.


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