by a cautious and discriminating direction of the judge to distinguish, as well as they can, degrees of things which run more or less into each other."

In Beal v. South Devon R. Co. (Eng.) supra, it was said by Compton, J., that he agreed with the remark of the Lord Chief Baron in the court below, who said: "There is a certain degree of negligence to which everyone attaches great blame. It is a mistake to suppose that things are not different because a strict line of demarcation cannot be drawn between them."

duty of the defendant to use.' It
is hardly correct to say that the court
of exchequer chamber, in the case re-
ferred to, adopted the view of Lord
Cranworth as to the impropriety of the
term, 'gross negligence.' Mr. Justice
Crompton, in delivering the opinion of
the court, said: 'It is said that there
may be difficulty in defining what
gross negligence is, but I agree in the
remark of the Lord Chief Baron in the
court below, where he says: "There is
a certain degree of negligence to
which everyone attaches great blame.
It is a mistake to suppose that things
are not different because a strict line
of demarcation cannot be drawn be-
tween them;' and he added: 'For all
practical purposes, the rule may be
stated to be that the failure to exercise
reasonable care, skill, and diligence is
gross negligence.' Mr. Justice Mon-
tague Smith, in the case in which the
above-mentioned observations of Mr.
Justice Willes were made, said: "The
use of the term, "gross negligence," is
only one way of stating that less care
is required in some cases than in
others, as in the case of gratuitous
bailees, and it is more correct and sci-
entific to define the degrees of care
than the degrees of negligence.' The
epithet, 'gross,' is certainly not with-
out its significance. The negligence
for which, according to Lord Holt, a
gratuitous bailee incurs liability, is
such as to involve a breach of confi-
dence or trust, not arising merely from
some want of foresight or mistake of
judgment, but from some culpable de-
fault. No advantage would be gained
by substituting a positive for a nega-
tive phrase, because the degree of care
and diligence which a bailee must ex-
ercise corresponds with the degree of
negligence for which he is responsible,
and there would be the same difficulty
in defining the extent of the positive
duty in each case as the degree of neg-
lect of it which incurs responsibility.
In truth, this difficulty is inherent in
the nature of the subject, and though
degrees of care are not definable, they
are, with some approach to certainty,
distinguishable; and in every case of
this description in which the evidence
is left to the jury, they must be led

In Whitney v. Lee (1844) 8 Met. (Mass.) 91, 1 Am. Neg. Cas. 789, it is said: "The law has endeavored to make a distinction in the degrees of care and diligence to which different bailees are bound, distinguishing between gross negligence, ordinary negligence, and slight negligence, though it is often difficult to mark the line where the one ends and the other begins. And it must be often left to the jury, upon the nature of the subjectmatter and the particular circumstances of each case, with suitable remarks by the judge, to say whether the particular case is within the one or the other."

In Mason v. St. Louis Union Stock Yards Co. (1894) 60 Mo. App. 93, it is said: "The terms, slight, ordinary, and great, as applied to care, and slight, ordinary, and gross, as applied to negligence, are valuable standards for measuring the care and limiting the liability imposed by the several classes of bailments, according as they are made wholly for the benefit of the bailor or bailee, or for their reciprocal advantage. The ground of the difference in the care to be taken and the different orders of bailment rests upon the essential distinction, grounded in natural right, between the duties of paid and unpaid service. In applying this principle, the law, upon self-evident justice, deems a bailment for mutual benefit one calling for that degree of care which a man of average prudence, similarly situa ted, would give to his own property or affairs; in other words, ordinary care. As the justice of this rule depends up

Care required of gratuitous bailee is presumptively less than is required of other classes of bailees.

A mandatary is not subject to the same strict accountability as is a paid bailee. Bradford-Kennedy Co. v. Buchanan (1918) 100 Wash. 466, 171 Pac. 228.

The courts are indisposed to extend by inference the perils of an unprofitable trust, and every bailee without reward ought to be given the least trouble consistent with his actual undertaking. Christian v. First Nat. Bank (1907) 84 C. C. A. 53, 155 Fed. 705.

Where money has been paid for the performance of certain acts, the person receiving it is by law answerable for any degree of neglect on his part, the payment of money being a sort of insurance for the due performance of what he has undertaken; and this rule has few exceptions. But where the undertaking is gratuitous, and the party has acted bona fide, it is not consistent either with the spirit or policy of the law to make him liable to an action. Per Wilson, J., in Shiells v. Blackburne (1789) 1 H. Bl. 159, 126 Eng. Reprint, 94, 2 Revised Rep. 750.

In Hanes v. Shapiro (1915) 168 N. C. 24, 84 S. E. 33, it is said that the law justly imposes a stricter liability upon one who is to receive the whole benefit of the bailment than upon one who enters into it wholly out of good will, and for the accommodation of the other party.

-force of fact that bailee is acting without compensation.

the bailee in the particular case, as implied from the concomitant circumstances and defined by the express understanding between the parties? This undertaking may be such as to raise the responsibility of a gratuitous bailee to the same level as that of a bailee for hire.

The fact that the bailee is acting without compensation will not of itself preclude his being held to the same degree of responsibility as that of a bailee for hire. While not bound to enter upon the performance of an executory agreement to act as a depositary or mandatary without reward, and hence not liable for a nonfeasance. Morrison v. Orr (1832) 3 Stew. & P. (Ala.) 49, 23 Am. Dec. 319; Jenkins v. Bacon (1873) 111 Mass. 373, 15 Am. Rep. 33, 1 Am. Neg. Cas. 781; Tomko v. Sharp (1915) 87 N. J. L. 385, 94 Atl. 793; Rutgers v. Lucet (1800) 2 Johns. Cas. (N. Y.) 92; Thorne v. Deas (1809) 4 Johns. (N. Y.) 84; Hyde v. Moffat (1844) 16 Vt. 271; Young v. Attwood (1821) Newfoundl. Sel. Cas. 262, yet as soon as he has entered upon the performance of such an agreement the trust reposed in him raises a consideration sufficient to impose upon him a liability for the failure to exercise the requisite care or skill in performance. Evan L. Reed Mfg. Co. v. Wurts (1914) 187 Ill. App. 378; Jenkins v. Bacon (Mass.) supra; Kincheloe v. Priest (1886) 89 Mo. 240, 58 Am. Rep. 117, 1 S. W. 235, 1 Am. Neg. Cas. 794; Hammond v. Hussey (1871) 51 N. H. 40, 12 Am. Rep. 41; Rutgers v. Lucet and Thorne v. Deas (N. Y.) supra; Herzig v. Herzig (1910) 67 Misc. 250, 122 N. Y. Supp. 440; Young v. Noble (1859) 2 Disney (Ohio) 485; Colyar v. Taylor (1860) 1 Coldw. (Tenn.) 372, 1 Am. Neg. Cas. 825; Ferrill v. Brewis (1875) 25 Gratt. (Va.) 765; Wilkinson v. Coverdale (1793) 1 Esp. (Eng.) 75; Johnston v. Graham (1863) 14 U. C. C. P. 9; Wills v. Browne (1912) 20 Ont. Week. Rep. 880, 1 D. L. R. 388; Young v. Attwood (Newfoundl.) supra.

As above pointed out, the chief use of the phrase that a gratuitous bailee is liable only for gross negligence is to differentiate between the theoretical responsibility of a bailee without reward, and that of bailees for hire or for their own benefit. Its employment, however, has tended to cause the courts to overlook the fact that it defines the responsibility of a gratuitous bailee only in vacuo, i. e., in the absence of any circumstances other than the bare fact of bailment, and to divert attention from the inquiry on which it properly should be centered, namely, What is the undertaking of

The difference in the liability of a bailee without reward and of a bailee for hire, where such difference exists, lies in the extent of their respective

implied undertakings. Thus, a gratuitous bailee may be taken as impliedly representing that he will exercise such care as he is accustomed to exercise in his own concerns, while a bailee for hire may be regarded as holding himself out as ready and willing to exercise the same degree of care and skill as is exercised by men of ordinary prudence and skill in their own concerns. And both of them, if their profession or situation is such as to imply skill, are liable for the neglect to use it. See cases cited elsewhere in this subdivision.

Measure of care required.

As above pointed out, the courts have failed to agree as to just what the term, "gross negligence," connotes.

In Tracy v. Wood (1822) 3 Mason, 132, Fed. Cas. No. 14,130, it was said by Story, J.: "The language of the books as to what constitutes gross negligence, or not, is sometimes loose and inaccurate from the general manner in which propositions are stated. When it is said that gross negligence is equivalent to fraud, it is not meant that it cannot exist without fraud. There may be very gross negligence in cases where there is no pretense that the party has been guilty of fraud; though certainly such negligence is often presumptive of fraud."

In Texas C. R. Co. v. Flanary (1898) Tex. Civ. App. —, 45 S. W. 214, it is said that gross negligence is the entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the interest and welfare of others.

-the care taken by the inattentive or thoughtless in their own concerns. In some cases it has been said that gross negligence consists in omitting that care which even the most inattentive and thoughtless men never fail to take of their own concerns. McNabb v. Lockhart (1855) 18 Ga. 495, 1 Am. Neg. Cas. 754; Cadwell v. Peninsular State Bank (1917) 195 Mich. 407, 62 N. W. 89; Wiser v. Chesley (1873) 53 Mo. 547; Dudley v. Camden & P. Ferry Co. (1880) 42 N. J. L. 25, 36 Am. Rep. 501; Tompkins v. Saltmarsh

(1826) 14 Serg. & R. (Pa.) 275, 1 Am. Neg. Cas. 814.

In Johnson v. Reynolds (1865) 3 Kan. 257, it is said that a gratuitous depositary is bound to slight diligence only, and the nature of that diligence is that degree of diligence which persons of less than common prudence at all take of their own concerns.

In Hanes v. Shapiro (1915) 168 N. C. 24, 84 S. E. 33, it is said that "it is probably safe to say that the diligence shown in their own affairs by men careless in their habits and not necessarily prudent by nature, but of ordinary intelligence, is slight diligence. Want of such diligence constitutes great or gross negligence which has by some been held to amount to fraud, or to be evidence thereof. It may be safely stated, however, that gross negligence, except under unusual circumstances, is not equivalent to fraud, nor does it necessarily raise a presumption of fraud."

A rather greater measure of diligence seems to be required by courts which state that gross negligence is a want of that care which men of common sense, however inattentive, usually take or ought to be presumed to take of their property. Tracy v. Wood (1822) 3 Mason, 132, Fed. Cas. No. 14,130; Henry v. Porter (1871) 46 Ala. 293, 1 Am. Neg. Cas. 745; Skelley v. Kahn (1855) 17 Ill. 170; Storer v. Gowen (1841) 18 Me. 174.

-the care which the bailee takes of his own property.

A gratuitous bailee is bound only to keep the property with the same care that he keeps his own of like description. Boyden v. Bank of Cape Fear (1871) 65 N. C. 13.

A person who takes bank notes to carry for another without reward is bound to take the same care of them that he does of his own. Anderson v. Foresman (1834) Wright (Ohio) 598, 1 Am. Neg. Cas. 813.

Under the Louisiana Civil Code, a depositary is bound to use the same diligence in preserving a gratuitous deposit that he uses in preserving his own property. Levy v. Pike (1873) 25 La. Ann. 630, 1 Am. Neg. Cas. 497.

In Knowles v. Atlantic & St. L. R.

Guilmartin (1893) 93 Ga. 503, 44 Am.
St. Rep. 182, 21 S. E. 55.
Indiana.-Conner v. Winton (1856)
8 Ind. 315, 65 Am. Dec. 761.
Louisiana.-Mechanics' & T. Bank
v. Gordon (1850) 5 La. Ann. 604.
Mississippi. -McKay v. Hamblin
(1866) 40 Miss. 472.

-the care which a prudent man would give his own property.

Still other courts vary the standard of care required by declaring it to be that which a prudent man, or a person of common prudence, would give to his own property.

Colorado.-Carico v. Fidelity Invest. Co. (1894) 5 Colo. App. 56, 27 Pac. 29. Georgia.-Merchants' Nat Bank v.