Abbildungen der Seite
PDF
EPUB

Sir William Jones, in 1781, published his brief essay on the Law of Bailments. This work first gave to the subject systematic form. It was at that time eminently useful, and has always been celebrated. As a literary and philosophical production, manifesting much learning in the Roman civil law, it has great merit; but, as a law-book for present use, it now possesses less value.

*

In the 2 Anne, Lord Holt, in the case of Coggs v. Ber* 87 nard, (a) laid the foundations of this system of law, building it, however, on principles deducible from or harmonizing with existing English jurisprudence, although he used an arrangement and nomenclature borrowed from the civil law.

A bailee is always responsible for the property delivered to him; but the degree and measure of this responsibility vary from one extreme to another. He is bound to take care of the property; but the question always occurs, What care? It is obviously impossible to measure the requirement of care with exact precision. But, for their assistance in doing this, courts have established three kinds or degrees of care, as standards. There is, perhaps, no better definition of these, than that given by Sir William Jones. First, slight care, which is that degree of care which every man of common sense, though very absent and inattentive, applies to his own affairs; secondly, ordinary care, which is that degree of care which every person of common and ordinary prudence takes of his own concerns; thirdly, great care, which is the degree of care that a man remarkably exact and thoughtful gives to the securing of his own property. It is obvious that the degree of care required measures the degree of negligence which makes the bailee responsible for loss of or injury to the thing bailed. There are, therefore, three degrees of negligence. The absence of slight care constitutes gross negligence; the absence of ordinary care constitutes ordinary negligence; the absence of great care constitutes slight negligence. The general purpose of the Law of Bailment is to ascertain, whenever loss of or injury to a thing bailed occurs, to what degree of care the bailee was bound, and of what degree of negligence he has been guilty. (b)

(a) 2 Ld. Raym. 909. This celebrated case is referred to in the great majority of subsequent cases which relate to the responsibility of a bailee. In this case, that eminent judge, Sir John Holt, may be said to have laid the foundation of the Law of Bailment for England. He borrows most, perhaps all, of his principles from the civil law. And he gave at once a proof of the wisdom of that law, and of his own sagacity in seizing those of its

principles which had been adopted by or were applicable to the common law, and in stating them with great accuracy of definition, and with the modifications required to adapt them to the common law. So that they have passed through all subsequent adjudications with but little essential change.

(b) For an able criticism upon the definitions and classifications of negligence, see Steamer New World v. King, 16 How.

For this purpose bailees are sometimes distributed into three general classes, corresponding with the three degrees of care and negligence already referred to. The first of these is, where

the bailment is for the benefit of the bailor alone. In this *88 class but slight care is required of the bailee, and he is responsible only for gross negligence. The second is, where the bailment is for the benefit of the bailee alone. In this class the greatest care is required of the bailee, and he is responsible for slight negligence. The third is, where the bailment is for the benefit both of bailor and bailee. In this class, ordinary care is required of the bailee, and he is responsible for ordinary negligence. We shall also see, presently, that there are bailees of whom the utmost possible care is required, and who are responsible for the slightest possible negligence, and others who are responsible when guilty of no negligence whatever.

Courts and writers have sometimes spoken of gross negligence as the same thing as fraud; but this is inaccurate. (c) There are bailees who should not be held responsible but for the grossest negligence, and it is often difficult to distinguish between such cases and those where there is reasonable suspicion of fraud; for such negligence generally justifies such suspicion. But that the law makes this distinction is certain.

There have been many different classifications of the kinds of bailments; (d) but we prefer and shall use that of Sir

469. See also Blythe v. Waterworks, 36 E. L. & E. 506; s. c. 11 Exch. 781.

(c) In the case In re Hall & Hinds, 2 Man. & G. 852, Tindal, C. J., says: "Lata culpa or crassa negligentia, both by the civil law and our own, approximates to, and in many instances cannot be distinguished from, dolus malus or misconduct." There may be instances in which these cannot be discriminated in fact, but they are entirely distinct in law. In Wilson v. Y. & M. Railroad Co., 11 Gill & J. 58, 79, the court say: "We do not think that gross negligence would, in construction of law, amount to fraud, but was only evidence to be left to the jury, from which they might infer fraud, or the want of bona fides." In Goodman v. Harvey, 4 A. & E. 876, Lord Denman says: "Gross negli gence may be evidence of mala fides, but it is not the same thing." This is quoted with approbation in Jones v. Smith, 1 Hare, 71, and Vice-Chancellor Wigram adds: "The doctrines of law and equity

(x) See the notes to this case in 5 Eng. lish Ruling Cas. 243, 247, 260, 264, and

upon this point ought to be concurrent." When Lord Holt, in Coggs v. Bernard, says, that gross negligence is looked upon as evidence of fraud, he adopts a rule of the civil law; he does not mean that this evidence is conclusive; or, that if it be rebutted, and the negligence cleared from all stain of actual fraud, it will not remain gross negligence. In other words, gross negligence is not fraud by inference of law, but may go to a jury as evidence of fraud. See National Bank v. Graham, 100 U. S. 699.

(d) There are two classifications of the various kinds of bailments which have become very celebrated in the English and American law, - that of Lord Holt, in the case of Coggs v. Bernard, supra (x), and that of Sir William Jones, in his essay on bailments. We shall give them both in their authors' own language. Lord Holt's is as follows: "There are," says he, "six sorts of bailments. The first sort of bailment is, a bare naked bailment of

in 1 Smith's Lead. Cas. (9th Am. ed.) 354.

* 89

William Jones, which varies somewhat from Lord Holt's.
And we shall speak successively of

*

First, DEPOSITUM or deposit without compensation or reward. Second, MANDATUM, or gratuitous commission, wherein the mandatary agrees to do something with or about the thing bailed. Third, COMMODATUM, or loan, where the thing bailed is lent for use, without pay, and is to be itself returned.

Fourth, PIGNUS, or pledge, where the thing bailed is security for debt.

Fifth, LOCATIO, or hiring, for a reward or compensation.

SECTION I.

DEPOSITUM.

Where a thing is placed with a depositary, to be kept for a time, and returned when called for, the depositary to *90 have no compensation, the benefit of the transaction is wholly on the side of the bailor, and the bailee is liable

goods, delivered by one man to another to keep for the use of the bailor; and this I call a depositum, and it is that sort of bailment which is mentioned in Southcote's case. The second sort is, when goods or chattels that are useful are lent to a friend gratis to be used by him; and this is called commodatum, because the thing is to be restored in specie. The third sort is, when goods are left with the bailee to be used by him for hire; this is called locatio et conductio, and the lender is called locator, and the borrower conductor. The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor; and this is called in Latin vadium, and in English a pawn or pledge. The fifth sort is, when goods or chattels are delivered to be carried, or something is to be done about them, for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. The sixth sort is, when there is a delivery of goods or chattels to somebody, who is to carry them or do something about them gratis, without any reward for such his work or carriage." Upon this classification Sir William Jones has made the following observations: "His division of bailments into six sorts, appears, in the first place, a little inaccurate; for, in truth his fifth

sort is no more than a branch of his third, and he might with equal reason have added a seventh, since the fifth is capable of another subdivision. I acknowledge, therefore, but five species of bailments, which I shall now enumerate and define, with all the Latin names, one or two of which Lord Holt has omitted. 1. DEPOSITUM, which is a naked bailment, without reward, of goods, to be kept for the bailor. 2. MANDATUM, or commission, when the mandatary undertakes, without recompense, to do some act about the things bailed, or simply to carry them; and hence Sir Henry Finch divides bailment into two sorts, to keep, and to employ. 3. COMMODATUM, or loan for use; when goods are bailed, without pay, to be used for a certain time by the bailee. 4. PIGNORI ACCEPTUM, when a thing is bailed by a debtor to his creditor in pledge, or as a security for the debt. 5. LOCATUM, or hiring, which is always for a reward; and this bailment is either, 1. Locatio rei, by which the hirer gains the temporary use of the thing; or, 2. Locatio operis faciendi, when work and labor, or care and pains, are to be performed or bestowed on the thing delivered; or, 3. Locatio operis mercium vehendarum, when goods are bailed for the purpose of being carried from place to place, either to a public carrier, or to a private person.' See Jones on Bailm. 35.

*

only for gross negligence. (e) 1 By the Roman law he was answerable only for fraud; for if the bailor thus deposited *91 goods with a negligent person, he took upon himself the risk of negligence. So it seems to have been held by Bracton, (f) who copied from the Roman law. But by the English and American law, such bailee is, as we have seen, liable for gross negligence, although he may have been wholly innocent of any fraudulent intent. It is impossible to lay down any rule or principle, which will be in all cases a reliable test as to what constitutes gross negligence. (x) The question must always depend upon several cir

(e) This has been the established law since Coggs v. Bernard. Lord Coke, how ever, in Southcote's case, Rep. 83 b, and in Co. Lit. 89a, laid down a different rule. He stated the law to be, that a gratuitous bailee must answer for the goods delivered to him at his peril, unless he has made a special agreement to take such care of them only as he takes of his own goods; "for to be kept and to be safely kept is all one in law." But the profession seem never to have been satisfied with Lord Coke's rule. For it was denied to be law in 33 Car. II. by Pemberton, C. J., in the case of Rex v. Hertford, 2 Show. 172, and again in 13 Wm. III. by Holt, C. J., in the case of Lane v. Cotton, 12 Mod. 472, 487; and finally it was expressly overruled by the whole Court of Queen's Bench, in 2 Anne, in the case of Coggs v. Bernard. And Holt, C. J., in the latter case, said, that the rule stated in the text had always been acted upon at Guildhall, contrary to the opinion of Lord Coke, particularly during all of Chief Justice Pemberton's time, and ever since. The liability of a depositary was much discussed in Foster v. The Essex Bank, 17 Mass. 479. The facts in that case were, that the plaintiff's testator had deposited

at the Essex Bank, for safe keeping, a chest containing a large quantity of gold. Some time after the deposit was made, the gold was taken from the chest and put in a cask, from whence the greater part of it was fraudulently and secretly taken by the cashier and chief clerk, who appropriated it to their own use, and afterwards absconded, having also defrauded the bank of the greater part of its capital. This was done without the knowledge of any of the directors, or members of the corporation. The deposit in question was kept in the vault, in the same manner, and with the same care, as other special deposits, and as the specie of the bank; and the cashier and the clerk sustained fair reputations, until the time of their absconding. The court held, that the bank was not liable. See Gulledge v. Howard, 23 Ark. 61; Green v. Birchard, 27 Ind. 483; Bronnenburg v. Charman, 80 Ind. 475; Schermer v. Neurath, 54 Md. 491; McKay v. Hamblin, 40 Miss. 472; Eddy v. Livingston, 35 Mo. 487; Patterson v. McIver, 90 N. C. 493; Whitney v. First Bank, 55 Vt. 154; Carrington v. Ficklin's Exec., 32 Gratt. 670.

(ƒ) Lib. 3, c. 2, fol. 99 b.

1 That national banks have the power to receive special deposits as incidental to their business, and when received gratuitously are liable for gross negligence, see Pattison v. Syracuse National Bank, 80 N. Y. 82, where the authorities on the liability of banks for special deposits are collated. To the same effect are Lyons Bank v. Ocean Bank, 60 N. Y. 278; National Bank v. Graham, 79 Penn. St. 106; Chattahoochee Bank v. Schley, 58 Ga. 369. See also Scott v. Chester Valley Bank, 72 Penn. St. 471. Contra, Whitney v. Brattleboro Bank, 50 Vt. 388; Wiley v. Same, 47 Vt. 546. See Shoemaker v. Hinze, 53 Wis. 116, where the defendant was held absolutely liable for a sum of money given him to take care of and stolen from him. K.

(x) Gratuitous bailees are now held responsible for the loss of the property only when guilty of gross negligence in its keeping; gross negligence is a question of fact, and, in this connection, means simply failure to bestow that reasonable care which the property in its situation de

mands. Preston v. Prather, 137 U. S. 604, 608; 11 S. Ct. 162, 34 L. Ed. 788; Briggs v. Spaulding, 141 U. S. 132, 11 S. Ct. 924, 35 L. Ed. 662; O'Keefe v. Talbot, 84 Iowa, 233, 50 N. W. 978; Krumsky v. Loeser, 75 N. Y. S. 1012; Gray v. Merriam, 148 Ill. 179, 35 N E. 810; Hibernia Building

cumstances; such as the nature and quality of the goods bailed, and the character and customs of the place where the trust is to be executed. What would amount to more than ordinary diligence in the case of a chattel of great bulk and little value, might be very gross negligence in the case of a bag of gold coin, or a parcel of valuable papers. Again, what would be a sufficient degree of diligence in a thinly peopled country, might be very culpable negligence in a thickly inhabited city. (g) It has been commonly stated by writers, and is said in some cases, that a depositary is not liable, as for gross negligence, if he shows that

he has taken as much care of the goods of the bailor as he *92 has of his own; but this is not law, (h) and although

(g) It was held, in the case of Doorman v. Jenkins, 2 A. & E. 256, after much consideration, that the question of gross negligence was rather a question of fact for the jury than of law for the court. But this does not remove all difficulty from the question, what constitutes gross negligence. For it is obvious that the jury should receive instructions from the court to guide them in forming their judgment.

(h) It seems very clear that this is not a reliable test. For we have already seen that a depositary is liable for gross negligence, though a jury may be satisfied that he is wholly innocent of any fraudulent intent; and it is obvious that persons even who usually exercise great care, may in some instances be guilty of very gross negligence in the management of their own affairs. It seems also to be equally clear upon the modern authorities that it is no defence for a depositary who has, by his negligence, lost the goods intrusted to him, that he has been equally negligent in regard to his own property. The first case, going to this point, is Rooth v. Wilson, 1 B. & Ald. 59. That was an action on

Ass'n v. McGrath, 154 Penn. St. 296, 26 Atl. 377; Hubbell v. Blandy, 87 Mich. 209, 49 N. W. 502; Burk v. Dempster, 34 Neb. 426, 51 N. W. 976; Hislop v. Ordner (Tex. Civ. App.), 67 S. W. 337.

A gratuitous bailment may be changed by the parties to a bailment for their mutual benefit, and the bailee thus enlarges his responsibility by contract express or fairly implied, - becoming under a more stringent obligation than before, and being now liable for the loss of the property when caused by his own neglect, though not amounting to gross negligence; but he is not necessarily liable for loss by inevitable accident. Preston v. Prather, 137 U. S. 604, 612, 11 S. Ct. 162, 34 L. Ed.

it

the case against the defendant for not repairing the fences of a close adjoining that of the plaintiff, whereby a certain horse of the plaintiff, feeding in the plaintiff's close, through the defects and insufficiencies of the fences, fell into the defendant's close and was killed. The defendant pleaded the general issue, and on the trial it appeared that the horse was the property of the plaintiff's brother, who sent it to him on the night before the accident; that the plaintiff put it into his stable for a short time, and then turned it after dark into his close, where his own cattle usually grazed, and that on the following morning the horse was found dead in the close of the defendant, having fallen from one to the other. The jury having found a verdict for the plaintiff, a rule for setting aside the verdict and granting a new trial was obtained, in support of which it was contended, among other things, that the plaintiff could not maintain the action, because, having taken as much care of the horse as he did of his own cattle, he was not liable over, and so had not sustained any damage. But Lord Ellenborough said:

788; Sturm v. Boker, 150 U. S. 312, 4 S. Ct. 99, 37 L. Ed. 1093; Sun Printing Ass'n v. Moore, 183 U. S. 642, 654, 22 S. Ct. 240, 46 L. Ed. 366; Knights v. Piella, 111 Mich. 9, 69 N. W. 92; Bowman v. Western Fur Manuf. Co., 96 Iowa, 188, 64 N. W. 775; James v. Orrell, 68 Ark. 284, 57 S. W. 931, 82 Am. St. Rep. 293.

The proprietors of a public exhibition, though making large gains from admissions, are not insurers of goods sent without recompense to be exhibited, and are liable for their loss by fire only in case they negligently omit proper precautions to protect them. World's Columbian Exhibition v. Republic of France, 91 Fed. 64, 62 U. S. App. 704, 33 C. C. A. 333.

« ZurückWeiter »