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When one undertakes gratuitously ance of his undertaking. Colyar v. to perform some act with respect to Taylor (1860) 1 Coldw. (Tenn.) 372, the property of another, he is not 1 Am. Neg. Cas. 825. bound to do it; but if the act is per- As a general rule a mandatary formed, it must be done with some de- whose engagement is merely gratuigree of care, and the mandatary will tous is bound only for ordinary dilibe held responsible for any injury or gence, and liable only for gross negloss which may result from a want lect, or breach of good faith. Marof due care in the manner of his per- shall v. Nashville R. & Light Co. formance. Melbourne v. Louisville & (1907) 118 Tenn. 254, 9 L.R.A. (N.S.) N. R. Co. (1889) 88 Ala. 443, 6 So. 762. 1246, 101 S. W. 419, 12 Ann. Cas. 675.

One who has undertaken to act on If a mandatary merely undertakes to behalf of another, though without re- carry the article from one place to ward, is bound to good faith and ordi- another, he is responsible only for nary diligence in executing what he gross neglect or a breach of good has assumed to do. Herrick v. Hodges faith; but if he undertakes to perform (1859) 13 Cal. 431; Samonset v. Mes- gratuitously some work or service renager (1895) 108 Cal. 354, 41 Pac. 337; lating to it, and actually enters upon Schroeder v. Mauzy (1911) 16 Cal. the execution of the business, then he App. 443, 118 Pac. 459.

is bound to use a degree of diligence A gratuitous agent is bound to act and attention suitable to the undercorrectly in the performance of the taking and adequate to the performassumed duty. Montillet v. Bank of ance of it. If he does it amiss through United States (1823) 1 Mart. N. S. the want of due care, by which damage (La.) 365.

ensues to the other party, an action An agent, whether voluntary and will lie for this misfeasance, and the gratuitous, or for compensation, is re- party thus injured can recover to the sponsible for a want of proper care extent of the injury. Jones v. Parish and diligence. Williams v. Higgins .

(1845) 1 Pinney (Wis.) 494, 1 Am. (1869) 30 Md. 404.

Neg. Cas. 848. One who undertakes to act for an- One who, as an act of kindness and other, although gratuitously, is bound courtesy, has received money belongto use a due diligence and attention ing to another, and has undertaken to adequate to the trust reposed in him, transmit it to him, is bound to perform to perform his engagement with good his undertaking in good faith, and faith, and neither to do anything con- with due diligence and attention adetrary to his trust, nor omit to do any- quate to the trust imposed in him. thing which the nature of his trust re- Eddy v. Livingston (1865) 35 Mo. 487, quires. Rutgers v. Lucet (1800) 2 88 Am. Dec. 122, 1 Am. Neg. Cas. 799. Johns Cas. (N. Y.) 92.

The captain of a steamboat who has If a mandatary enter upon the exe- undertaken to carry a sum of money cution of the business submitted to from place to place is bound to use a him, he is bound to use a degree of degree of diligence and attention adediligence and attention adequate to quate to the performance of the trust. the performance of his undertaking, Jenkins v. Motlow (1853) 1 Sneed and if he do not, and damage ensue, (Tenn.) 248, 60 Am. Dec. 154. he is liable to the mandator for his A gratuitous mandatary is liable for misfeasance. Kirtland v. Montgomery failure to use due diligence in collect(1852) 1 Swan (Tenn.) 452.

ing a promissory note. Herzig v. HerThe general principle that a manda- zig (1910) 67 Misc. 250, 122 N. Y. tary is only liable for gross neglect Supp. 440.

. . implies a certain fidelity on his part, A bank from which securities beand the exercise of such care and pru- longing to a number of persons have dence as, with reference to the par- been taken by burglars, and which has ticular subject of the bailment and undertaken on behalf of the parties the circumstances of the particular interested to negotiate for their recase, may be requisite for the perform- turn, is answerable for want of proper diligence, skill, and care in the per- - but is bound only to oxercise ordiformance of such an undertaking. nary diligence where the undertakWylie v. Northampton Nat. Bank ing is such as to require the employ(1886) 119 U. S. 361, 30 L. ed. 455, 7 ment of skill which he does not imSup. Ct. Rep. 268.

pliedly represent himself to possess. - especially where he holds himself out

An agent without reward will not as possessing Special and peculiar

be required to use more diligence than skill.

would be used by a prudent man in When a man undertakes specially to

the management of his own affairs. do a certain thing, he is chargeable

Pate v. M'Clure (1826) 4 Rand. (Va.)

164. for his neglect in doing it, because he had the goods committed to his cus

If one not in business as a collecttody upon those terms. Coggs v. Bern

ing agent, or holding himself out as ard (1703) 2 Ld. Raym. 909, 92 Eng.

such, is requested by a friend to colReprint, 107, 5 Eng. Rul. Cas. 247, 1

lect a particular debt for him, and he

undertakes to do so without compenAm. Neg. Cas. 948.

sation, he is not liable for loss without If a man gratuitously undertakes to

proof of his negligence. Nixon v. Bodo a thing to the best of his skill, gin (1886) 26 S. C. 611, 2 S. E. 302. where his situation or profession is

One who voluntarily undertakes to such as to imply skill, an omission of collect claims for another without that skill is imputable to him as gross compensation is bound to use only ornegligence. Shiells v. Blackburne dinary diligence. Moore v. Gholson (1789) 1 H. Bl. 159, 126 Eng. Reprint, (1857) 34 Miss. 372. 94, 2 Revised Rep. 750.

A gratuitous agent who has underA gratuitous bailee whose profes- taken to collect notes for another, and sion or situation is such as to imply has entered upon the duties of the the possession of competent skill is agency, is bound to use such diligence liable for the neglect to use it. Wil

as becomes a prudent man in referson v. Brett (1843) 11 Mees. & W. 113,

ence to his own interests. Anthony v. 152 Eng. Reprint, 737, 12 L. J. Exch.

Smith (1848) 9 Humph. (Tenn.) 508. N. S. 264.

One who has gratuitously undertakWhere the profession of the bailee

en to collect a note for another must requires skill, a want of skill is im

exercise ordinary diligence in respect

thereto. Kincheloe v. Prieste (1886) putable as gross neglect. Stanton v. Bell (1822) 9 N. C. (2 Hawks) 145, 11

89 Mo. 240, 58 Am. Rep. 117, 1 S. W.

235, 1 Am. Neg. Cas. 794. Am. Dec, 744.

An agent who performs gratuitous If he who undertakes the business

services, and who is permitted to do so of another is capable of managing it not because of his holding himself and neglects to do so with due care, out to be particularly skilled in the he is answerable. If he is not capable, matter, is only liable for the fair exhe is still answerable, for he ought not ercise of such capacity as he posto have engaged to do that which he sesses. Briere v. Taylor (1905) 126 could not perform, and this is true in Wis. 347, 105 N. W. 817. cases of gratuitous agencies as in One who orders piping for the acothers. Durnford v. Patterson (1820) commodation of another, without com7 Mart. (La.) 460, 12 Am. Dec. 514. i pensation, is not liable for an error The rule that an agent acting with

of judgment as to the quantity reout compensation and solely for the quired. Chapman v. Clements (1900) accommodation of the principal is lia

22 Ky. L. Rep. 17, 56 S. W. 646. ble only for gross neglect is subject to Conduct of class as standard of care. qualification in the case of agents who The question whether the standard hold themselves out as possessing of care required is to be measured by special and peculiar skill in the sub- the conduct of gratuitous bailees as ject-matter of the agency. Yates v. a class, or of the particular bailee as Ley (1917) 121 Va. 265, 92 S. E. 837. I an individual, is one which, curiously enough, seems to have aroused very erintend with diligence his own conlittle judicial discussion. Ordinarily cerns. it seems to have been assumed that the i The gross negligence for which an correctness of the bailee's conduct in agent acting without compensation the individual instance is to be tested will be liable is a question of fact, to by the conduct of men generally, in be determined by reference to all the a similar situation, rather than by the circumstances of the case, including inquiry whether such conduct was the subject-matter and objects of his such as might reasonably be expected agency and the known character, qualof such an individual as the bailee. ification, and relations of the parties. Doubtless the former is the test, ex What would be but slight negligence necessitate, where there is no evidence in the treatment of a matter of trifling of the known idiosyncracies of the importance might perhaps be gross bailee; but it is palpably unjust if I negligence in dealing with concerns of am permitted to hold my notoriously momentous interest. And a stupid and careless or absent-minded friend ignorant man, while devoting all his Henry Zany, to whom I have intrusted powers to the duties of his agency, my Liberty bonds, liable for failure might be guilty of blunders of omisto exercise the same precautions that sion or commission which in one of might reasonably be expected under higher qualification would be strong like circumstances of my other friend, or conclusive evidence of culpable deJohn Spotcash, the successful mer- linquency. Grant v. Ludlow (1857) chant. The decisions on the point, 8 Ohio St. 1. however, are apparently in conflict. The duty which the law imposes on

Thus in Mechanics' & T. Bank v. gratuitous bailees is that the bailee Gordon (1850) 5 La. Ann. 604, it is shall act in good faith, that is, shall said that a mandatary acting without use the degree of care in the performreward is bound to use the same dili- ance of the undertaking which is gence that he uses in the care of his measured by the carefulness which own property, and as it would not be the depositary uses toward his own permitted to men to plead that they property of similar kind, under like were more negligent than men ordi- circumstances. RUBIN v. HUHN (renarlly are, the true rule is that gratu- ported herewith) ante, 1190.

, itous bailees are required to exercise

Liability of bailee as question for court the diligence which men of common

or jury. prudence ordinarily use.

The line of distinction between what So, in Merchants' Nat. Bank v. Guil

is and what is not sufficient diligence martin (1893) 93 Ga. 503, 44 Am. St.

in the bailee under the circumstances Rep. 182, 21 S. E. 55, it is said that the conduct of men of common sense,

is nice, and difficult to draw. Skelley as a class, in the care of their own

v. Kahn (1855) 17 Ill. 170.

What constitutes gross negligence property, is the standard. On the other hand, in Foster v. Es

cannot be determined by any rule

which will furnish a reliable test in sex Bank (1821) 17 Mass. 479, 9 Am. Dec. 168, 1 Am. Neg. Cas. 502, it is

all cases. It must be determined as a said that the degree of care which is

question of fact in each particular necessary to avoid the imputation of

case by the jury, under proper instruc

tions from the court. bad faith is measured by the careful

United States.-Preston v. Prather ness which the depositary uses to

(1890) 137 U. S. 604, 34 L. ed. 788, 11 wards his own property of similar

Sup. Ct. Rep. 162, 1 Am. Neg. Cas. 599; kind. For, although that may be so Tracy v. Wood (1822) 3 Mason, 132, slight as to amount even to careless- Fed. Cas. No. 14,130. ness in another, yet the depositor has Arkansas. - Gulledge v. Howard no reason to expect a change of char- (1861) 23 Ark. 61, 1 Am. Neg. Cas. acter in favor of his particular inter- 752; Baker v. Bailey (1912) 103 Ark. est, and it is his own folly to trust 12, 39 L.R.A.(N.S.) 1085, 145 S. W. on who is not able or willing to sup- 532.

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Georgia. - McNabb

V. Lockhart Rep. 828, 26 Atl. 377; Hirsh v. Ander(1855) 18 Ga. 495, 1 Am. Neg. Cas. son Hotel Co. (1914) 58 Pa. Super Ct. 754; Stewart v. Head (1883) 70 Ga. 387; Spooner v. Mattoon (1868) 40 449.

Vt. 300, 94 Am. Dec. 395, 1 Am. Neg. Illinois.Skelley v. Kahn (1855) 17 Cas. 841; Whitney v. First Nat. Bank Ill. 170.

(1882) 55 Vt. 154, 45 Am. Rep. 598, Kentucky.--Green v. Hollingsworth 1 Am. Neg. Cas. 582. (1837) 5 Dana, 174, 30 Am. Dec. 680,

Presumptions arising from fact that 1 Am. Neg. Cas. 771.

depositary used the same care as to Maine.-Storer v. Gowen (1841) 18

his own property. Me. 174.

The degree of care which is necesMassachusetts. Whitney V. Lee (1844) 8 Met. 91, 1 Am. Neg. Cas. 789.

sary to avoid the imputation of bad

faith is estimated by the carefulness Missouri. Eddy V. Livingston

which the depositary uses towards his (1865) 35 Mo. 487, 88 Am. Dec. 122, 1 Am. Neg. Cas. 799.

own property of a similar kind. Lloyd

v. West Branch Bank (1850) 15 Pa. New York. Patriska v.


172, 53 Am. Dec. 583, 1 Am. Neg. Cas. (1908) 57 Misc. 552, 109 N. Y. Supp.

574; Ray v. Bank of Kentucky (1874) 1092; Bean v. Ford (1909) 65 Misc.

10 Bush. (Ky.) 344. 481, 119 N. Y. Supp. 1074.

It will be difficult to presume fraud North Carolina.-Bland v. Womack

where the bailee was equally a loser (1818) 6 N. C. (2 Murph.) 373, 1 Am.

with the bailor. McLean v. RutherNeg. Cas. 811.

ford (1843) 8 Mo. 109. Ohio.-Griffith v. Zipperwick (1876)

A gratuitous bailee is bound to the 28 Ohio St. 388, 1 Am. Neg. Cas. 545.

exercise of good faith; and if he keeps Pennsylvania. - Lancaster County

the goods intrusted to him with less Nat. Bank v. Smith (1869) 62 Pa. 47,

care than he keeps his own of the same 1 Am. Neg. Cas. 570.

kind, this is a circumstance from Tennessee.-Kirtland v. Montgom- which a jury might well infer a want ery (1852) 1 Swan, 452.

of good faith; but the keeping of them Texas.-Fulton v. Alexander (1858)

as his own is an argument of his hon21 Tex. 148, 1 Am. Neg. Cas. 836.

esty. Griffith v. Zipperwick (1876) 28 Virginia. - Carrington V. Ficklin

Ohio St. 388, 1 Am. Neg. Cas. 545. (1880) 32 Gratt. 670.

So, also, that the bailee has dealt Wisconsin.-Jones v. Parish (1845) with his own goods and the bailor's in 1 Pinney, 494, 1 Am. Neg. Cas. 848.

the same way will raise a presumption England. - Doorman v. Jenkins of adequate diligence. First Nat. (1834) 2 Ad. & El. 256, 111 Eng. Re- Bank v. Graham (1875) 79 Pa. 106, 21 print, 99, 4 L. J. K. B. N. S. 29, 4 Nev. Am. Rep. 49. & M. 170.

This, however, is not conclusive, as But where the proof offered by the he may have been grossly negligent plaintiff is wholly insufficient to justi- as to his own property. Carico v. Fify a jury reasonably to find the want delity Invest. Co. (1894) 5 Colo. App. of such ordinary diligence, it is with- 56, 37 Pac. 29; Ray v. Bank of Kenin the province of the court to so in- tucky (1874) 10 Bush. (Ky.) 344; struct the jury. Schermer v. Neurath Pattison v. Syracuse Nat. Bank (1880) (1880) 54 Md. 491, 39 Am. Rep. 397, 80 N. Y. 82, 36 Am. Rep. 582; Pat1 Am. Neg. Cas. 775; Cadwell v. Penin- riska v. Kronk (1908) 57 Misc. 552, sular State Bank (1917) 195 Mich. 109 N. Y. Supp. 1092; Griffith v. Zipper407, 162 N. W. 89; Gerrish v. Muske- wick (1876) 28 Ohio St. 388, 1 Am. gon Sav. Bank (1904) 138 Mich. 46, Neg. Cas. 545; Colyar v. Taylor (1860) 100 N. W. 1000, 4 Ann. Cas. 1083, 17 1 Coldw. (Tenn.) 372, 1 Am. Neg. Cas. Am. Neg. Rep. 81; Cannon River Mfrs. 825. Asso. v. First Nat. Bank (1887) 37 It is not enough that a bailee takes Minn. 394, 34 N. W. 741, 1 Am. Neg. the same care of the property bailed Cas. 531; Hibernia Bldg. Asso. v. Mc- as he does of his own, the conduct of Grath (1893) 154 Pa. 296, 35 Am. St. men of common sense, as a class, in

the care of their own property, being money in a pocketbook, which he de

. the standard. Merchants' Nat. Bank posited in the outside pocket of his v. Guilmartin (1893) 93 Ga. 503, 44 coat, and the money in some way was Am. St. Rep. 182, 21 S. E. 55.

lost, where funds of his own, which he

kept in the breast pocket of his coat, b. Instances of failure to exercise re

were not lost. quisite care.

The jury were warranted in finding As to the liability of a bailee for the captain of a steamboat liable for loss or injury occurring after he has the loss by theft of a sum of money notified the bailor of his wish to term- placed in the steamer's safe for safe. inate the bailment, see IV. b, infra. keeping, where the danger of robbery

There are some decisions which, up- was known, and it was possible to pass on casual inspection, may be thought into the room where the safe was to turn on a want of due care, but from an adjoining room, the door of which are in reality based on the fact which was not locked, and the robbery that the bailee departed from the im- was committed in the daytime, while plied terms of the bailment; as in the

the officers of the vessel were engaged case of the sea captain who, becoming on the levee. Jenkins v. Motlow the involuntary bailee of a chest sent (1853) 1 Sneed (Tenn.) 248, 60 Am. on board his vessel by an intending Dec. 154. passenger, who did not join the ship, Where one who has received a sum caused it to be opened, and, finding a of money from another for the special bag of money therein, locked the bag purpose of taking it to a bank, paying up in his cabin for safe-keeping, and it to the cashier, and having it inwho was held liable for its loss by dorsed upon such other's note, on his theft. These will be found under sub- way to the bank met the teller and division V., infra.

handed it to him, the jury is not warin keeping, carrying, or transmitting

ranted in finding a verdict for the de

fendant, the mandatary not having money.

used a degree of diligence and attenIt is gross negligence for one who

tion adequate to the performance of has gratuitously undertaken to trans

his undertaking. Jones v. Parish mit money to another to intrust it for

(1845) 1 Pinney (Wis.) 494, 1 Am. that purpose to one who has recently entered the employ of such other, with

Neg. Cas. 848. out the presentation of the usual draft

It is competent for the jury to find or order therefor. Skelley V. Kahn

the bailee of money guilty of gross (1855) 17 Ill. 170.

negligence in keeping it in a cash box Gross negligence on the part of a

with his own in the taproom of a pubgratuitous bailee of a package of bank

lic house, open to the public. Doornotes is fairly to be inferred from the

man v. Jenkins (1834) 2 Ad. & El. 256, fact that he can give no account what

111 Eng. Reprint, 99, 4 L. J. K. B. N. ever of the disposition of the package

S. 99, 4 Nev. & M. 170. after receiving it. Boyd V. Estis - in keeping of securities by banks. (1856) 11 La. Ann. 704.

It seems proper to caution the readIt is competent for the jury to find er that the question of the liability of that the keeping of money in a bedtick banks with respect to securities inis gross negligence on the part of a trusted to their care is broader than gratuitous bailee. Patriska v. Kronk the particular aspect herein touched (1908) 57 Misc. 552, 109 N. Y. Supp. This note is concerned only with 1092.

the duty and liability of gratuitous In Bland v. Womack (1818) 6 N. C. bailees; and it will be found that some (2 Murph.) 373, 1 Am. Neg. Cas. 811, courts have seized upon some incidentit was held that the jury were war- al advantage, real or imaginary, acranted in finding one to whom money cruing to the bank from the keeping had been intrusted for the purchase of of securities for a depositor, as congoods to have been guilty of a want stituting the bank a bailee for reward, of due care, where he placed such although other courts, under like cir

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