common prudence generally exercise about their own affairs, in the age and country in which they live; and this he affirms to be more a matter of fact than of law;1 and the later decisions hold, that it must often be left to the jury upon the nature of the subject-matter, and the particular circumstances of each case.2 The variable character of the standard of diligence is very happily illustrated by Story. In one country, or in one age, says he, acts may be deemed negligent, which, at another time, or in another country, may justly be deemed an exercise of ordinary diligence, and it is important, says he, to attend to this consideration, not merely to deduce the implied obligations of a party in a given case, but also to possess ourselves of the true measure by which to fix the application of the general rule. Thus, in times of primitive or pastoral simplicity, when it was customary to leave flocks to roam at large by night, it would not be want of ordinary diligence to allow a neighbor's flock which is deposited with us, to roam in the same manner. But, if the general custom were, at night, to pen them in a fold, it would doubtless be a want of such diligence, not to do the same with them. In many parts of America, especially in the interior, where there are, comparatively speaking, few temptations to theft, it is quite usual to leave barns, in which horses and other cattle are kept, without being locked by night. But in cities, where the danger is much greater, and the temptations more pressing, it would be deemed a great want of caution to do the same. If a man were to leave his friend's horse in his field, or in his barn, all night, in many country towns, and the horse were stolen, it would not be imagined that any responsibility was incurred. But if, in a large city, the same want of precaution were shown, it would be deemed, in many cases, gross 'Story on Bailm. § 11; and see Vaughn v. Menlove, 3. Bing. N. Cases, 468. 2 Per Shaw, C. J., in Whitney v. Lee, 8 Met. (Mass.) R. 91; and see Cairns v. Mills, 8 M. & Welsb. R. 238. neglect. If robbers were known to frequent a particular district of country, much more precaution would be required than in districts where robberies were of very rare occurrence. What, then, is usually done in a country, in respect to things of a like nature, whether it be more or less in point of diligence, than what is exacted in another country, is in fact the general measure of diligence.1 § 8. The customs of trade and the course of business also have an important influence. If, in the course of a particular trade, particular goods, as for instance, coals, are usually left on a wharf without any guard or protection during the night, and they are stolen, the wharfinger, or other person having the custody, might not be responsible for the loss, although, for a like loss of other goods not falling under a like predicament, he might be responsible. If a chaise were left during the night under an open shed, and were stolen, the bailee might not be liable for the loss, if such was the usual practice of the place; and yet he would be, if other precautions were usually taken. In short, diligence is usually proportioned to the degree of danger of loss, and that danger is, in different states of society, compounded of very different elements.2 What constitutes ordinary diligence may also be materially affected by the nature, bulk, and value of the articles. A man would not be expected. to take the same care of a bag of oats as of a bag of gold; of a bale of cotton as of a box of jewelry; of a load of wood as of a package of paintings; of a block of marble as of a sculptured statue. The value, especially, is an ingredient to be taken into consideration upon every question of negligence; for, that may be gross negligence in the case of a parcel of extraordinary value, which, in the case of a common parcel, would not be so.3 1 Story on Bailm. § 11, 12, 13, 14, 15. 2 See Gordon v. Hutchinson, 1 Watts & S. (Penn.) R. 285. § 9. The fixed mode or standard of diligence Sir William Jones calls ordinary. The degrees on each side of this standard, need not, he says, be distinguished by any precise denomination; the first may be called less, and the second more than ordinary diligence. Then he proceeds to say, that just in the same manner, there are infinite shades of default or neglect, from the slightest inattention, or momentary absence of mind, to the most reprehensible supineness and stupidity; and these are the omissions of the beforementioned degrees of diligence, and are exactly correspondent with them.1 § 10. The three degrees of negligence are thus distinguished, both in the Civil and the Common Law, by name: 1. Gross neglect, lata culpa, as the Roman lawyers call it, is in practice considered as equivalent to fraud; and consists, according to Sir William Jones, in the omission of that care which even inattentive and thoughtless men never fail to take of their own property; this fault, the best interpreters of the Civil Law hold to be clearly a violation of good faith.2 66 1 Jones on Bailm. 7, 8; Story on Bailm. § 17. 2 Jones on Bailm. 21; Story on Bailm. § 18. Story remarks, that in various passages of the Essay of Sir William Jones, it seems to be assumed, that, in the Common Law, as in the Civil Law, gross negligence and fraud are equivalent. Thus, he observes, ordinary negligence is spoken of as a mean between fraud and accident." (p. 8); gross negligence as "inconsistent with good faith." (pp. 10, 46, 119); and a bailee without reward, as being "answerable only for fraud, or for gross negligence, which is considered evidence of it." (p. 46.) But this doctrine is not warranted by the Common Law authorities. One case opposed to it is put by Sir W. Jones himself. If, he says, (p. 57,) a depositor commits a gross neglect in regard to his own goods, as well as those which are bailed, by which both are lost or damaged, he cannot be said to have violated good faith, and the bailor must impute to his own folly the confidence which he reposed in so improvident and thoughtless a person. So, where a cartoon was left in the hands of an auctioneer, without any particular agreement to take care of it, or re-deliver it safe, and without any agreement for a reward, and it appeared that the painting was upon paper pasted on canvass, and that the bailee kept it in a room next to a 2. Ordinary neglect, levis culpa, is the want of that diligence which the generality of mankind use in their own concerns, that is, of ordinary care.1 3. Slight neglect, levissama culpa, is the omission of that care which very attentive and vigilant persons take of their own goods, or, in other words, of very exact diligence.2 § 11. Such, then, are the nature and various degrees of negligence, and of diligence, and the next question is in what manner the law applies them. The answer is as short stable in which there was a wall, which had made it damp and peel—it was held gross neglect, and the bailee was held responsible, although there was no imputation of fraud. These cases show that gross negligence is not equivalent to fraud, according to the Common Law authorities. On the contrary, gross negligence is, or at least may be, entirely consistent with good faith and honesty of intention; and to confound it with fraud, would be most mischievous, for then, unless a jury should believe the party guilty of fraud, no laches would come up to the legal notion of gross negligence, so as to entitle the sufferer by the loss to recover. A man may leave a casket of jewels or a purse of gold upon the table of a public room at an inn, or may leave a package of bank bills in a great coat in the common entry of an inn, from pure thoughtlessness; and a jury might be well satisfied that it was gross negligence. But if fraud were a necessary ingredient, the very statement of the case would negative a right of recovery. Besides, if gross negligence were equivalent to fraud, there could be no defence set up by the bailee, founded either on his own conduct in respect to his own goods, or on a special contract not to be liable for gross negligence. But there is no principle in our law, that would prevent a depositary from contracting not to be liable for any degree of mere negligence. Story on Bailm. § 20, et seq. With respect to common carriers, however, fraud may be presumed, as will be shown, post. Gross negligence certainly approximates to dolus malus, and is tantamount, in the mischief it produces, to a breach of good faith. It bears so near a resemblance to fraud, as to be equivalent to it in its effect upon contracts, though, by the Common Law, it may not be fraud by inference, but a matter of fact for the jury. 2 Kent, Comm. 559; Foster v. Essex Bank, 17 Mass. R. 479; Wilson v. York & Md. Railr. Co. 11 Gill & Johns. (Md.) R. 58. And see post, § 22, et seq. 1 Jones on Bailm. 22; Story on Bailm. § 18. 2 Ibid. and simple as it is rational. When the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, and he is consequently responsible for nothing less than gross neglect. When the bailment is for the sole benefit of the bailee, an extraordinary degree of care is demanded, and the bailee is therefore responsible for slight neglect. When the bailment is reciprocally beneficial to both parties (as in the case of the carriage of goods for hire,) such care is exacted of the bailee as every prudent man commonly takes of his own goods; or, in other words, the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect. Such are the rules recognized by the Common Law; a like division of the degrees of responsibility is to be found in the Civil Law; and the same rules are found in the French and Scotch law, and may be deemed indeed the general result of the law of Continental Europe.1 But it is often difficult to mark the lines of distinction between the different degrees of negligence, so as to show precisely where the one ends and the other begins; and, therefore, by the Common Law, it is left to the jury, upon the nature of the subject-matter, and the particular circumstances of each case, to say whether the particular case is within the one or the other. Every person who is a bailee, whether for hire or not, is bound to take proper and prudent care of that which is committed to him; and the Courts, in modern times, have acknowledged the difficulty in defining the difference between one of the sorts of the negligence designated by the epithets of the Civil Law and another 3; and there is clearly a want of precision in the use of the term negligence, which, per se is 1 Jones on Bailm. 22, 23, 24; Story on Bailm. § 23, 24; Coggs v. Bernard, 2 Ld. Raym. R. 909, and Appx.; Pothier, Traité de Depot, n. 23; Pothier, Oblig. P. 1, ch. 2, art. 1, § 1, n. 141; 1 Bell, Comm. 453, (5th ed.); Ersk. Inst. 448; Heinec. Elem. Jur. Inst. Lib. 3, tit. 15, § 12. 2 See Opinion of Shaw, C. J., in Whitney v. Lee, 8 Met. (Mass.) R. 91. And see ante, § 7, 8. 3 See post, § 22, 23, and § 48 - 52. |