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duty of the defendant to use.' It by a cautious and discriminating diis hardly correct to say that the court rection of the judge to distinguish, as of exchequer chamber, in the case re- well as they can, degrees of things ferred to, adopted the view of Lord which run more or less into each Cranworth as to the impropriety of the other." term, 'gross negligence. Mr. Justice In Beal v. South Devon R. Co. (Eng.) Crompton, in delivering the opinion of supra, it was said by Compton, J., that the court, said: “It is said that there he agreed with the remark of the Lord may be difficulty in defining what Chief Baron in the court below, who gross negligence is, but I agree in the said: “There is a certain degree of remark of the Lord Chief Baron in the negligence to which everyone attaches court below, where he says: 'There is great blame. It is a mistake to supa certain degree of negligence to pose that things are not different be. which everyone attaches great blame. cause a strict line of demarcation canIt is a mistake to suppose that things not be drawn between them." are not different because a strict line In Whitney v. Lee (1844) 8 Met. of demarcation cannot be drawn be- (Mass.) 91, 1 Am. Neg. Cas. 789, it is tween them;' and he added: 'For all said: “The law has endeavored to practical purposes, the rule may be make a distinction in the degrees of stated to be that the failure to exercise care and diligence to which different reasonable care, skill, and diligence is bailees are bound, distinguishing begross negligence.' Mr. Justice Mon- tween gross negligence, ordinary negtague Smith, in the case in which the ligence, and slight negligence, though above-mentioned observations of Mr. it is often difficult to mark the line Justice Willes were made, said: “The where the one ends and the other beuse of the term, "gross negligence," is gins. And it must be often left to the only one way of stating that less care jury, upon the nature of the subjectis required in some cases than in matter and the particular circumothers, as in the case of gratuitous stances of each case, with suitable rebailees, and it is more correct and sci- marks by the judge, to say whether the entific to define the degrees of care particular case is within the one or than the degrees of negligence.' The the other." epithet, 'gross,' is certainly not with- In Mason v. St. Louis Union Stock out its significance. The negligence Yards Co. (1894) 60 Mo. App. 93, it for which, according to Lord Holt, a is said: "The terms, slight, ordinary, gratuitous bailee incurs liability, is and great, as applied to care, and such as to involve a breach of confi. slight, ordinary, and gross, as applied dence or trust, not arising merely from to negligence, are valuable standards some want of foresight or mistake of for measuring the care and limiting judgment, but from some culpable de- the liability imposed by the several fault. No advantage would be gained classes of bailments, according as by substituting a positive for a nega- they are made wholly for the benefit tive phrase, because the degree of care of the bailor or bailee, or for their and diligence which a bailee must ex- reciprocal advantage. The ground of ercise corresponds with the degree of the difference in the care to be taken negligence for which he is responsible, and the different orders of bailment and there would be the same difficulty rests upon the essential distinction, in defining the extent of the positive grounded in natural right, between duty in each case as the degree of neg- the duties of paid and unpaid service. lect of it which incurs responsibility. In applying this principle, the law, upIn truth, this difficulty is inherent in on self-evident justice, deems a bail. the nature of the subject, and though ment for mutual benefit one calling degrees of care are not definable, they for that degree of care which a man are, with some approach to certainty, of average prudence, similarly situadistinguishable; and in every case of ted, would give to his own property or this description in which the evidence affairs; in other words, ordinary care. is left to the jury, they must be led As the justice of this rule depends up

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on the fact that the bailee is recom- haps, in some respects, justly critipensed, it could not properly be ap- cized. It certainly may be misleading, plied to the bailment lacking that ele- if not properly considered. Negliment, without destroying its support. gence may be defined, generally, as the The law recognizes this logical result, breach of a duty to exercise commenand applies to a bailment without rec- surate care, and to be actionable it ompense, the rule that a less degree must proximately result in damage. of care than ordinary, i. e., slight care, • Any omission of the duty to exshall be observed."

ercise due care, and resulting in damIn Dudley v. Camden & P. Ferry Co. age, ought to impose liability. There (1880) 42 N. J. L. 25, 36 Am. Rep. 501, is no such thing as excusable negliit is said, in speaking of the propriety gence which causes a wrong. It is of the distinction between degrees of said that gross negligence is 'ordinary negligence, that the rule that one who negligence with a vituperative adjecpermits his friend to deposit his tive.' It would, perhaps, be more logivaluables in his safe temporarily

cal to apply the adjective of comparishould not be held to the same degree

son to the term 'diligence,' rather than of responsibility which attaches to a to the correlative term, 'negligence.' safe deposit company is a rule of such This conception of ordinary and gross obvious justice that it must inhere in

negligence seems to have had its orievery system of law that equitably gin in the law of bailment, and we may

illustrate here. Thus, where the exerregulates human conduct.

cise of great diligence is the duty imIn First Nat. Bank v. Ocean Nat. Bank (1875) 60 N. Y. 278, 19 Am. Rep.

posed, a slight omission of care-i, e.,

slight negligence-will be regarded as 181, it is said that the term, "gross

a failure to exercise commensurate negligence," has been quarreled with,


Where only slight diligence is but that it still has a place in law, and

the measure of duty, slight omissions must have, so long as the measure of

do not involve a failure to exercise liability implied by the term is recog

commensurate nized, and until some better term can

care, and therefore

there is no negligence. In such a case be invented to give expression to it. "It is incapable of precise definition,

it is very misleading to say that there and its application and use may lead

is slight negligence, but no liability.

When only slight diligence is required, in some cases to results unsatisfac

there must be gross omission of dilitory; but that comes as directly from the nature and extent of the duty and

genceman omission of almost all dili

gence-in order to involve a failure to the particular case as from the phrase

exercise commensurate care, or, in by which' a breach of the duty is ex

other words, to constitute negligence; pressed." In Hanes v. Shapiro (1915) 168 N.

for commensurate care in such a case

is slight care. Nevertheless, the C. 24, 84 S. E. 33, it is said, with ref

terms, ‘slight negligence,' 'gross neglierence to the statement made by Lord

gence,' and 'ordinary negligence,' are Holt in Coggs v. Bernard, that, in bail

convenient terms to indicate the dements for the sole benefit of the bailor,

gree of care required; but, in the last the bailee will be liable only for gross

analysis, the care required by the law negligence; in bailments for the mu

is that of the man of ordinary prutual benefit of both parties, for ordi

dence. This is the safest and best nary negligence; and bailments for the exclusive benefit of the bailee, for

rule, and rids us of the technical and slight negligence. "This distinction useless distinctions in regard to the and the consequent distinction into

subject. Ordinary care, being that three degrees of negligence has been

kind of care which should be used in perpetuated in textbooks and deci- the particular circumstances, is the sions, until it has become so interwov

correct standard in all cases. It may en with the law of bailments that it is be high or low in degree, according to impossible to discard it, though it has circumstances, but is, at least, that been frequently, severely, and per- which is adapted to the situation."

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Care required of gratuitous bailee is the bailee in the particular case, as

presumptively less than is required implied from the concomitant circum- . of other classes of bailees.

stances and defined by the express unA mandatary is not subject to the derstanding between the parties? sáme strict accountability as is a paid This undertaking may be such as to bailee. Bradford-Kennedy Co. v. Bu- raise the responsibility of a gratuichanan (1918) 100 Wash. 466, 171 Pac. tous bailee to the same level as that of 228.

a bailee for hire. The courts are indisposed to extend The fact that the bailee is acting by inference the perils of an unprof- without compensation will not of ititable trust, and every bailee without self preclude his being held to the reward ought to be given the least same degree of responsibility as that trouble consistent with his actual un- of a bailee for hire. While not bound dertaking. Christian V. First Nat. to enter upon the performance of an Bank (1907) 84 C. C. A. 53, 155 Fed. executory agreement to act as a de705.

positary or mandatary without reWhere money has been paid for the ward, and hence not liable for a nonperformance of certain acts, the per- feasance. Morrison v. Orr (1832) 3 son receiving it is by law answerable Stew. & P. (Ala.) 49, 23 Am. Dec. 319; for any degree of neglect on his part,

Jenkins v. Bacon (1873) 111 Mass. the payment of money being a sort of

373, 15 Am. Rep. 33, 1 Am. Neg. Cas. insurance for the due performance of

781; Tomko v. Sharp (1915) 87 N. J. what he has undertaken; and this rule

L. 385, 94 Atl. 793; Rutgers v. Lucet has few exceptions. But where the

(1800) 2 Johns. Cas. (N. Y.) 92; undertaking is gratuitous, and the par

Thorne v. Deas (1809) 4 Johns. (N. ty has acted bona fide, it is not consist

Y.) 84; Hyde v. Moffat (1844) 16 Vt. ent either with the spirit or policy of

271; Young v. Attwood (1821) Newthe law to make him liable to an ac

foundl. Sel. Cas. 262, yet as soon as he tion. Per Wilson, J., in Shiells V. Blackburne (1789) 1 H. Bl. 159, 126

has entered upon the performance of

such an agreement the trust reposed Eng. Reprint, 94, 2 Revised Rep. 750.

in him raises a consideration sufficient In Hanes v. Shapiro (1915) 168 N.

to impose upon him a liability for the C. 24, 84 S. E. 33, it is said that the

failure to exercise the requisite care law justly imposes a stricter liability

or skill in performance. Evan L. upon one who is receive the whole benefit of the bailment than upon one

Reed Mfg. Co. v. Wurts (1914) 187 III. who enters into it wholly out of good

App. 378; Jenkins v. Bacon (Mass.) su

pra; Kincheloe v. Priest (1886) 89 Mo. will, and for the accommodation of the other party.

240, 58 Am. Rep. 117, 1 S. W. 235, 1

Am. Neg. Cas. 794; Hammond v. Hug- force of fact that bailee is acting sey (1871) 51 N. H. 40, 12 Am. Rep. without compensation.

41; Rutgers v. Lucet and Thorne v. As above pointed out, the chief use Deas (N. Y.) supra; Herzig v. Herzig of the phrase that a gratuitous bailee (1910) 67 Misc. 250, 122 N. Y. Supp. is liable only for gross negligence is 440; Young v. Noble (1859) 2 Disney to differentiate between the theoreti- (Ohio) 485; Colyar v. Taylor (1860) cal responsibility of a bailee without 1 Coldw. (Tenn.) 372, 1 Am. Neg. Cas. reward, and that of bailees for hire or 825; Ferrill v. Brewis (187E) 25 Gratt. for their own benefit. Its employment, (Va.) 765; Wilkinson v. Coverdale however, has tended to cause the (1793) 1 Esp. (Eng.) 75; Johnston v. courts to overlook the fact that it de- Graham (1863) 14 U. C. C. P. 9; Wills fines the responsibility of a gratuitous v. Browne (1912) 20 Ont. Week. Rep. bailee only in vacuo, i. e., in the ab- 880, 1 D. L. R. 388; Young v. Attwood sence of any circumstances other than (Newfoundl.) supra. the bare fact of bailment, and to di- The difference in the liability of a vert attention from the inquiry on bailee without reward and of a bailee which it properly should be centered, for hire, where such difference exists, namely, What is the undertaking of lies in the extent of their respective implied undertakings. Thus, a gratui- (1826) 14 Serg. & R. (Pa.) 275, 1 Am. tous bailee may be taken as impliedly Neg. Cas. 814. representing that he will exercise such In Johnson v. Reynolds (1865) 3 care as he is accustomed to exercise in Kan. 257, it is said that a gratuitous his own concerns, while a bailee for depositary is bound to slight diligence hire may be regarded as holding him only, and the nature of that diligence self out as ready and willing to exer- is that degree of diligence which percise the same degree of care and skill sons of less than common prudence at as is exercised by men of ordinary pru

all take of their own concerns. dence and skill in their own concerns. In Hanes v. Shapiro (1915) 168 N. C. And both of them, if their profes- 24, 84 S. E. 33, it is said that "it is sion or situation is such as to imply probably safe to say that the diligence skill, are liable for the neglect to use shown in their own affairs by men it. See cases cited elsewhere in this careless in their habits and not necessubdivision.

sarily prudent by nature, but of ordi

nary intelligence, is slight diligence. Measure of care required.

Want of such diligence constitutes As above pointed out, the courts

great or gross negligence which has have failed to agree as to just what by some been held to amount to fraud, the term, "gross negligence," connotes. or to be evidence thereof. It may be

In Tracy v. Wood (1822) 3 Mason, safely stated, however, that gross neg132, Fed. Cas. No. 14,130, it was said ligence, except under unusual circumby Story, J.: “The language of the stances, is not equivalent to fraud, nor books as to what constitutes gross does it necessarily raise a presumption negligence, or not, is sometimes loose of fraud.” and inaccurate from the general man- A rather greater measure of diliner in whick propositions are stated. gence seems to be required by courts When it is said that gross negligence which state that gross negligence is is equivalent to fraud, it is not meant a want of that care which men of comthat it cannot exist without fraud. mon sense, however inattentive, usualThere may be very gross negligence in ly take or ought to be presumed to take cases where there is no pretense that of their property. Tracy v. Wood

. the party has been guilty of fraud; (1822) 3 Mason, 132, Fed. Cas. No. 14,though certainly such negligence is 130; Henry v. Porter (1871) 46 Ala. often presumptive of fraud."

293, 1 Am. Neg. Cas. 745; Skelley y In Texas C. R. Co. v. Flanary (1898) Kahn (1855) 17 Ill. 170; Storer v. - Tex. Civ. App. —, 45 S. W. 214, Gowen (1841) 18 Me. 174. it is said that gross negligence is the

- the care which the bailee takes of his entire failure to exercise care, or the exercise of so slight a degree of care

own property. as to justify the belief that there was

A gratuitous bailee is bound only to an indifference to the interest and wel

keep the property with the same care fare of others.

that he keeps his own of like descrip

tion. Boyden v. Bank of Cape Fear the care taken by the inattentive or (1871) 65 N. C. 13. thoughtless in their own concerns. A person who takes bank notes to In some cases it has been said that

carry for another without reward is gross negligence consists in omitting bound to take the same care of them that care which even the most inat- that he does of his own. Anderson v. tentive and thoughtless men never fail Foresman (1834) Wright (Ohio) 598, to take of their own concerns. Mc- 1 Am. Neg. Cas. 813. Nabb v. Lockhart (1855) 18 Ga. 495, 1 Under the Louisiana Civil Code, a Am. Neg. Cas. 754; Cadwell y. Penin- depositary is bound to use the same sular State Bank (1917) 195 Mich. 407, diligence in preserving a gratuitous 62 N. W. 89; Wiser v. Chesley (1873) deposit that he uses in preserving his 53 Mo. 547; Dudley v. Camden & P. own property. Levy v. Pike (1873) 25 Ferry Co. (1880) 42 N. J. L. 25, 36 Am. La. Ann. 630, 1 Am. Neg. Cas. 497. Rep. 501; Tompkins v. Saltmarsh In Knowles v. Atlantic & St. L, R.


Co. (1854) 38 Me. 55, 61 Am. Dec. 234, Guilmartin (1893) 93 Ga. 503, 44 Am. it is said that the authorities do not St. Rep. 182, 21 S. E. 55. concur in uniform standard by Indiana.-Conner v. Winton (1856) which to determine what constitutes 8 Ind. 315, 65 Am. Dec. 761. gross negligence in a gratuitous bailee Louisiana.—Mechanics' & T. Bank or depositary. "Such a bailee, who re- v. Gordon (1850) 5 La. Ann. 604. ceives goods to keep gratis, is under Mississippi. - McKay V. Hamblin the least responsibility of any species (1866) 40 Miss. 472. of trustee. If he keeps the goods as

Missouri.- Levi v. Missouri, K. & he keeps his own, though he keeps his T. R. Co. (1911) 157 Mo. App. 536, 138 own negligently, he is not answerable S. W. 699. for them. He is only answerable for North Carolina.-Perry v. Seaboard fraud, or that gross neglect which is Air Line R. Co. (1916) 171 N. C. 158, evidence of fraud. Just. Inst. lib. 3, L.R.A.1916E, 478, 88 S. E. 156. title 15, 8 3; Coggs v. Bernard (1703) Canada. Sutherland v. Bell (1911) 2 Ld. Raym. 914, 92 Eng. Reprint, 110, 3 Alberta, L. R. 497. 5 Eng. Rul Cas. 247, 1 Am. Neg. Cas.

the care which the bailor has a right 948; Foster v. Essex Bank (1821) 17

to expect. Mass. 500, 9 Am. Dec. 168, 1 Am. Neg.

In Griffith v. Zipperwick (1876) 28 Cas. 502; 2 Kent, Com. 561, 562. Judge

Ohio St. 388, 1 Am. Neg. Cas. 545, it Story, in his work on Bailments, $ 64,

is said that “the term gross negligence says: "The depositary is bound to

is scarcely susceptible of legal definislight diligence only; and the measure

tion; but there is a degree of care (inof that diligence is that degree of

definitely varied by the nature of the diligence which persons of less than

deposit and the circumstances of the common prudence, or indeed of any

case), which the depositor has a right prudence at all, take of their own con

to expect from the depositary, the cerns. The measure, abstractly con

want of which is so designated and sidered, has no reference to the partic

will render the depositary liable if a ular character of an individual; but

loss results therefrom. This we think it looks to the general conduct and

is so, irrespective of any actual fraud character of a whole class of persons; or intentional bad faith. It is a breach and so Sir William Jones has intima

of the contract or obligation which ted on some occasions.' He cites

the law implies from the bailment, in Jones, Bailm. 82, 83; Tompkins v.

the absence of an express agreement Saltmarsh (1826) 14 Serg. & R. (Pa.)

to the contrary.” 275, 1 Am. Neg. Cas. 814; Doorman v.

The rule that a gratuitous bailee is Jenkins (1834) 2 Ad. & El. 256, 111

responsible only for the want of that Eng. Reprint, 99, 4 Nev. & M. 170, 4

care which is taken by the most inatL, J. K. B. N. S. 29.”

tentive cannot be applied in all cases Still another form of expression is

of bailment without reward; for, when that gross negligence is the omission

securities are deposited with persons of that care which bailees without

intrusted to receive such deposits, they hire, of common prudence, are accus

are liable for any loss occurring tomed to take of property of a like

through the want of that care which description. Graves v. Ticknor (1834)

good business men would exercise in 6 N. H. 537, 1 Am. Neg. Cas. 806.

regard to property of such value. - the care which a prudent man would First Nat. Bank v. Zent (1883) 39 give his own property.

Ohio St. 105. Still other courts vary the standard - ordinary care and diligence. of care required by declaring it to be Still others approximate the standthat which a prudent man, or a person ard of care required of bailees for hire of common prudence, would give to his by declaring that gratuitous bailees own property.

are bound to the exercise of ordinary Colorado.--Carico v. Fidelity Invest. care and diligence. Co. (1894) 5 Colo. App. 56, 27 Pac. 29. Alabama.—Knox V. Rives (1848)

Georgia.-Merchants' Nat Bank v. 14 Ala. 249, 48 Am. Dec, 97.


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