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Georgia. McNabb 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

sary to avoid the imputation of bad (1844) 8 Met. 91, 1 Am. Neg. Cas. 789.

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

own property of a similar kind. Lloyd Am. Neg. Cas. 799.

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

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 bailur. 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 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

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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 safeinate 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 war- in keeping, carrying, or transmitting

ranted in finding a verdict for the de

fendant, the mandatary not having money. It is gross negligence for one who

used a degree of diligence and attenhas gratuitously undertaken to trans

tion adequate to the performance of mit money to another to intrust it for

his undertaking. Jones V. Parish that purpose to one who has recently

(1845) 1 Pinney (Wis.) 494, 1 Am. 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

on.

cumstances, have treated the bank as a list of the bonds, their denomination, a gratuitous bailee.

amounts, and numbers, which was perIt is an act of gross negligence on fectly accurate, the part of a bank with which securi In Steffe v. Bank of Conneautville ties have been deposited for safe-keep (1875) 22 Pittsb. L. J. (Pa.) 157, as ing, to deliver, or dispose of, or appro digested in Century Digest, title, priate them without the depositor's Banks & Banking, $ 277, it is held that, direct authority. Manhattan Bank v. where a bank knew of the misapproWalker (1889) 130 U. S. 267, 32 L. ed. priation of funds by its cashier and 959, 9 Sup. Ct. Rep. 519.

continued him in its service, it is liaA refusal to deliver bonds left with ble to the depositor for bonds lost a bank for safe-keeping, without any through the gross negligence of the explanation save that the bank did not cashier, or by his theft. have any such bonds in its possession, Where a banker knows that his is sufficient evidence that they have cashier, who has no property except been lost by the gross negligence of his salary and has access to the sethe bank. First Nat. Bank v. Zent curities deposited with the bank, has (1883) 39 Ohio St. 105.

been speculating in grain, and makes
Evidence that the securities intrust no examination to ascertain whether
ed to a bank for safe-keeping were in such cashier has been using such se-
a safe so situated as to be accessible curities, but retains him in his posi-
to a person entering from the street, tion, such banker is guilty of negli-
that the persons in the bank were so gence, and is responsible for bonds de-
placed that at times the safe was not posited in the bank, which are stolen
in their view, and that sometimes the by such cashier. Preston v. Prather
door of the safe was left open, is suffi (1890) 137 U. S. 604, 34 L. ed. 788, 11
cient to warrant the jury in finding Sup. Ct. Rep. 162, 1 Am. Neg. Cas. 599,
that leaving the property thus exposed affirming (1887) 29 Fed. 498, 1 Am.
was gross negligence. Pattison v. Syr Neg. Cas. 593.
acuse Nat. Bank (1880) 80 N. Y. 82, 36

- in loaning out money.
Am. Rep. 582.
The retention by a bank of a manag.

One who has undertaken to put an

other's money out at interest must be ing officer, who it knows has been us

deemed to have failed to exercise the ing bank funds for the purpose of degree of diligence required of him, private speculation, constitutes such a

where he loaned it without security failure to exercise ordinary care as to to one whose circumstances he did not render it responsible for his misappro know, and when the debt became due priation of a gratuitous special de did not collect it, but allowed the time posit. Sherwood v. Home Sav. Bank to go by without payment of principal (1906) 131 Iowa, 528, 109 N. W. 9. or interest, until the borrower became

In Lancaster County Nat. Bank v. bankrupt, because he was afraid that Smith (1869) 62 Pa. 47, 1 Am. Neg. if he brought suit the borrower would Cas. 570, it was held that the jury were be crippled, and unable to pay what warranted in finding a bank, which he owed the agent and his partner. had gratuitously received for safe Samonset v. Mesnager (1895) 108 Cal. keeping government bonds at the in 354, 41 Pac. 337. stance of persons who were strangers One who, acting without pay, has to the teller, who put the bonds into undertaken to make loans and investan envelop, wrote the owner's name and ments for another, may be found to address on it and put it away into the have been guilty of gross negligence vault, liable for their loss, where it de in lending money to another, who was livered such bonds to a person who shown by an abstract of title and a some time thereafter came into the deed produced by him to have perfect bank and asked for them, stating that title, where the deed proves to be a he was the owner, and that they were forgery, if the advanced money to the in an envelop bearing his name and borrower, who was a stranger to him, address, and who produced and read without making any inquiry or inves

4 A.L.R.-77.

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or

tigation of the truth of his statement. his own. Harter v. Blanchard (1873) Torbet v. Young (1915) 24 Ohio C. C. 64 Barb. (N. Y.) 617. N. S. 97.

c. Instances in which requisite care has - miscellaneous.

been held to have been exercised. The failure of a railroad company - in keeping or carrying money which has gratuitously undertaken to

other valuables. deliver a car to another road for more All that can reasonably be expected convenient delivery to the consignee,

of a gratuitous bailee of a bond is that to give notice of such transfer to the

he shall keep it with his own papers, other road according to its usage and

and in the same manner and with the custom, evidences the absence of the

same degree of care as a man of ordicare which, as a bailee without reward, it is bound to exercise in the prem

nary prudence would exercise in the

custody of papers of his own of like ises. Melbourne v. Louisville & N. R.

character. Jenkins v. Bacon (1873) Co. (1889) 88 Ala. 443, 6 So. 762.

111 Mass. 373, 15 Am. Rep. 33, 1 Am. A gratuitous bailee who delivers the

Neg. Cas. 781. property to a stranger without effort

One who, upon undertaking to take to verify the latter's claim thereto and

care of bonds belonging to another without inquiry as to its ownership,

person, put them, with such person's is answerable for its value. Wear v.

knowledge and consent, into a box in Gleason (1889) 52 Ark. 364, 20 Am. St.

which he kept his own valuable papers, Rep. 186, 12 S. W. 756.

and put the box in a bureau drawer in A hotel clerk who receives and re

his bedroom, both the box and drawer ceipts for a registered letter directed

being locked, is, as a matter of law, not to a guest of the hotel may be found

liable for their theft in the daytime guilty of want of due care in placing by one who, finding the doors of the it in the letter box in the office of the

bailee's apartment unlocked, entered, hotel, from which it was stolen. Jos

and broke the lock of the drawer and lyn v. King (1889) 27 Neb. 38, 4 L.R.A.

box. Schermer v. Neurath (1880) 54 467, 20 Am. St. Rep. 656, 42 N. W. 756.

Md. 491, 39 Am. Rep. 397, 1 Am. Neg. The gratuitous bailee of a stove is

Cas. 775. grossly negligent in removing it to a

Where a bank which had gratuitousvacant lot and there leaving it unpro- ly undertaken to take care of a packtected. Burk v. Dempster (1892) 34

age of jewelry and coin lost by burgNeb, 426, 51 N. W.976.

lary, placed it in a vault which it did A vendor of chattels who under- not claim to be burglar proof, and in takes to ship them to a consignee is which it kept other valuables, and the guilty of gross negligence where he bailor knew and expected that the intrusts them to a drayman to be car- package would be so kept, no such deried to the railroad station, but does gree of negligence is shown on the not see that they get there. Sprinkle part of the bank as to make a case for v. Brimm (1907) 144 N. C. 401, 12

the jury. Gerrish v. Muskegon Sav. L.R.A. (N.S.) 679, 57 S. E. 148.

Bank (1904) 138 Mich. 46, 100 N. W. In Rooth v. Wilson (1878) 1 Barn

1000, 4 Ann. Cas. 1083, 17 Am. Neg. & Ald. 59, 106 Eng. Reprint, 22, 18 Re

Rep. 81. vised Rep. 431, 19 Eng. Rul. Cas. 15,

Where a party makes a special deit was said, obiter, that the gratuitous

posit of money for gratuitous safe

keeping in the safe of a merchant bailee of a horse may be liable for in

whose known habit is to permit trusty juries received by it, where he has

clerks to open his safe, it is error to turned it loose after dark into a dan

instruct the jury that the depositary gerous pasture, to which it was unac

will be liable for the loss of such customed.

money if it was abstracted from the It is the duty of a gratuitous bailee

safe by an employee. Glover v. Burof a horse which has broken one of bidge (1887) 27 S. C. 305, 3 S. E. 471, its legs to provide for its keeping, care, 1 Am. Neg. Cas. 821, and cure as he would if the horse were One who permits another as an ac

commodation to deposit money in his able sum of money for safe-keeping at safe for safe-keeping is not liable

night, calling for it in the morning, where, without his fault, the safe is and who on one occasion, being derobbed. Carlyon v. Fitzhenry (1887) sirous of relieving himself of the care 2 Ariz. 266, 15 Pac. 273, 1 Am. Neg. of such money, the owner not calling Cas. 748.

for it, as was the custom, before he Sufficient care is exercised by one was obliged to leave his tent in the with whom a sum of money is depos performance of his duties, started for ited for safe-keeping, where he keeps the tent of the owner, 10 rods distant, it in the same safe with his own money with the intention of returning it to and valuables. Johnson v. Reynolds him, and who, for the purpose of not (1885) 3 Kan. 257.

exposing it to view, having no pocket A gratuitous bailee of money which large enough to contain it, placed it he kept in a safe along with his own

inside and between his shirt and vest, is not liable for its loss by robbery, intending to keep it secure by the preswithout any fault or negligence on his

sure of his arm upon it, and who, his part. Caldwell v. Hall (1882) 60 Miss.

attention being diverted in some way, 330, 45 Am. Rep. 410, 1 Am. Neg. Cas.

allowed it to slip out on the way and 803. In Di Dio v. Robino (1909) 116

become lost, is, as a matter of law, not N. Y. Supp. 702, it was held that a jury

guilty of gross negligence. Spooner were not warranted in finding a gra

v. Mattoon (1868) 40 Vt. 300, 94 Am. tuitous bailee of money stolen by bur

Dec. 395. glars liable therefor, though it ap

One who, without reward, has unpeared that the amount, which was be

dertaken to carry with him to a certween $150 and $200, was kept in a

tain city and to deliver to a person retrunk.

siding there a package containing a One with whom money is left for

sum of money, is not to be deemed, as safe-keeping is not liable for its em

a matter of law, to have been guilty of bezzlement or misappropriation by his

contributory negligence, where, on arclerk, if he had no reason to suspect

riving at such city and finding an epihis fidelity. Whitemore v. Haroldson

demic prevailing there to such an ex(1879) 2 Lea (Tenn.) 312.

tent that it was considered dangerous One to whom money is intrusted by

for him to remain in town, he depositothers for deposit in a bank is not

ed his own money with a commercial to be deemed guilty of gross negli

firm of good standing with which he gence, rendering him liable for the

was in the habit of doing business, and loss of such money, where, arriving in

also delivered to them the package in town after banking hours, he deposits

question, with instructions to deliver it in a merchant's safe for safe-keep

it, which they promised to do, and left ing, and, being out of town on the fol

the city on the same day, and where, belowing day during banking hours, in

ing thereafter in the city on his return the service of his employer, did not

home he inquired of the firm whethcall for the money until the second

er the money had been delivered, and day, although he had been told by the

received the reply that the addressee

had been notified that they held the bailor that checks had been drawn

money for him, but had not yet called against it, since the bailors must be

for it. Fulton v. Alexander (1858) 21 deemed to have known that the bailee's

Tex. 148, 1 Am. Neg. Cas. 836. first duty was to his own employers,

One to whom a pair of diamond earand that his service for their accom rings in a box are handed by another modation must have been accepted in the lobby of a theater crowded with with tacit understanding that the bail people, for inspection and appraiseee's time was not his own. RIDENOUR ment, is, as a matter of law, not liable V. WOODWARD (reported herewith), merely because he dropped one of them ante, 1192.

and lost it. RUBIN v. HUHN (reported A soldier in camp to whom a fellow herewith), ante, 1190. soldier had been intrusting a consider A finding that the defendant was

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