calamity, the bailee would be responsible only when his negligence exposed the goods to such act, or when he was negligent in failing to minimize the loss flowing therefrom, after the act had occurred.2

The bailor is, of course, denied a recovery when the damage is attributable to his own fault, as when it is due to the plan outlined by the bailor, or when he furnishes defective materials.

DELEGATION OF THE SERVICES BY THE BAILEE TO A THIRD PERSON

66. Unless the contract or the nature of the bailment requires the personal services of the bailee, he may have the work completely performed by third persons, or he may employ them to assist him in the undertaking.

It is difficult in a locatio operis bailment to say that the carrying out of the bailment purpose either is or is not personal to the Chenowith v. Dickinson, 8 B. Mon. (Ky.) 156; Abraham v. Nunn, 42 Ala. 51; Smith v. Frost, 51 Ga. 336; Yale v. Oliver, 21 La. Ann. 454. A bailee for hire is not an insurer as to the conduct of his employés, but is responsible for ordinary care in the selection of his agents, in retaining them in his employ, and for wrongful acts within the scope of the employment. Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913E, 823. A want of ordinary care in one particular, on the part of a warehouseman, does not render him responsible for a loss occasioned by other causes not connected with that particular. Gibson v. Hatchett, 24 Ala. 201. See, also, 2 Jag. Torts, "Connection as Cause," 929, 975. But see Powers v. Mitchell, 3 Hill (N. Y.) 545; Francis v. Castleman, 4 Bibb (Ky.) 282; Claflin v. Meyer, 43 N. Y. Super. Ct. 1; McGinn v. Butler, 31 Iowa, 160. See Stevens v. Boston & M. R. R., 1 Gray (Mass.) 277.

2 Leck v. Maestaer, 1 Camp. (Eng.) 138; Smith v. Meegan, 22 Mo. 150, 64 Am. Dec. 259; James v. Greenwood, 20 La. Ann. 297. See, also, Story, Bailm. § 444; Platt v. Hibbard, 7 Cow. (N. Y.) 497; Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 Am. Dec. 143; Chenowith v. Dickinson, 8 B. Mon. (Ky.) 156; Claflin v. Meyer, 43 N. Y. Super. Ct. 1. One who undertakes to repair a boat, and places her upon marine railways upon bank of river for that purpose, is bound to use at least ordinary care for preservation thereof. He is liable in damages for her destruction if he launches her into river at time and under circumstances of great danger, which he ought to have foreseen, and which caused destruction of boat in spite of her owner's efforts to save her. This, although the loss was occasioned by breaking up of the ice, and 12 days after launching. Smith v. Meegan, 22 Mo. 150, 64 Am. Dec. 259.

Story, Bailm. § 431; Schouler, Bailm. (2d Ed.) § 105. Where the employer supersedes the judgment of the workman, and insists that his own plan be followed, the workman is not liable for any losses resulting from pursuing such method. Duncan v. Blundell, 3 Starkie (Eng.) 6. See, also, Vroman v. Kryn (Sup.) 86 N. Y. Supp. 94, when bailor prescribed the type of machine by which the bailee was to polish the diamonds.

bailee. In the absence of special contract, this depends on the nature and circumstances of the particular bailment. For example, of the cases just mentioned, cleaning the shoes would ordinarily not be personal, and the bailee could intrust the work to a third person; quite the contrary would be true as to retouching the miniature. The more valuable the bailed chattel, the more difficult and delicate the work, the more unique the skill required, and especially the greater the play for the individuality of the bailee, the stronger is the showing that the bailment is a personal one, involving confidence reposed in the individual bailee.*

SPECIFIC BAILMENTS

67. There are a few classes of locatio operis bailees or semi-bailees whose business so vitally affects the public that they require some brief special mention. Such are (1) warehousemen; (2) wharfingers; (3) factors; (4) safe-deposit companies; and (5) officers in charge of public funds.

SAME-WAREHOUSEMEN

A warehouseman is a bailee who receives goods and merchandise to be stored in his warehouse for hire. This is therefore a locatio custodia bailment, one involving the hiring of the custody of a thing rather than active labor and services about it. The storing of goods in warehouses is among the most common of all commercial bailments and it has assumed a tremendous practical importance.

• See Rodgers v. Grothe, 58 Pa. 414; Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913E, 823. See, also, 1 Halsbury Laws of England, p. 560; Van Zile, Bailm. & Carr. § 154. Custom and usage, of course, play an important part here. Frequently the size and variety of the work (as in the case of extensive repairs to a ship) would conclusively show that the bailee could not personally perform all the services himself, but must delegate it in whole or part to others for whose work, while acting within the scope of their employment, the bailee is, of course, responsible.

See 2 Bouv. Law Dict. 799; Black, Law Dict. (2d Ed.) p. 1218. In the Uniform Warehouse Receipts Act (adopted in a number of states), a warehouseman is defined as "a person lawfully engaged in the business of storing goods for profit." There are also other statutory definitions. See, for example, Ky. St. § 4768 (Act July 6, 1893); Burns' Rev. St. Ind. 1894, § 8720. See, further, Sinsheimer v. Whitely, 111 Cal. 378, 380, 43 Pac. 1109, 52 Am. St. Rep. 192; Geilfuss v. Corrigan, 95 Wis. 651, 659, 70 N. W. 306, 37 L. R. A. 166, 60 Am. St. Rep. 143; United States v. Oregon R. & Navigation Co. (C. C.) 159 Fed. 975, 977; 48 Cent. Dig. "Warehousemen," § 4.

6

The nature of the warehouseman's business, as well as his methods of conducting it, vary as widely as the nature of the goods intrusted to him. A great number of cases are concerned with the storage of grain; but, since the common carrier, as to goods in his hands, is a mere warehouseman before the technical carriage relation attaches and after it ends, this, too, has made the rights and duties of warehousemen the subject of frequent study by the courts. Though warehousemen of grain were declared by the United States Supreme Court to be "clothed with a public interest," it is generally held that the warehouseman, in the absence of statute, does not pursue a "public calling" in the strict sense in which that term is used of common carriers and innkeepers, and hence ordinarily he is not obliged by law, in the absence of statute, to receive goods tendered to him for storage. The warehouseman is, therefore, said to pursue a quasi public calling. The validity of statutes making his calling strictly a public one, and imposing on him the duty to serve all the public, has been frequently upheld.' Even the owners of so-called "bonded warehouses," in which goods are stored until the payment of the duties prescribed by the federal government, remain in a sense private warehousemen and liable as such for their negligence, or failure to exercise ordinary care, in protecting such goods.10

Warehouseman Required to Exercise Only Ordinary Care

In spite of his quasi public calling, the warehouseman is held to the same standard of diligence as other bailees in mutual benefit bailments, the exercise of ordinary care." The warehouseman is

See post, §§ 136, 139, 144.

7 Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.

8 Delaware, L. & W. R. Co. v. Central Stock-Yard & Transit Co., 46 N. J. Eq. 280, 19 Atl. 185; Nash v. Page, 80 Ky. 539, 44 Am. Rep. 490.

As to how far warehousemen pursue a public calling and how far they may be regulated, see Bank of Rome v. Haselton, 15 Lea (Tenn.) 216, upholding Tennessee Warehouse Act of 1879 (Laws 1879, c. 236); Hannah v. People ex rel. Attorney General, 198 Ill. 77, 64 N. E. 776 (police power of state); Ratcliff v. Wichita Union Stockyards Co., 74 Kan. 1, 86 Pac. 150, 6 L. R. A. (N. S.) 834, and note, 118 Am. St. Rep. 298, 10 Ann. Cas. 1016 (rates to be charged); Central Elevator Co. v. People ex rel. Moloney, 174 Ill. 203, 51 N. E. 254, 43 L. R. A. 658 (method of doing business).

10 See Rev. St. §§ 2954-3008 (U. S. Comp. St. 1901, pp. 1941-1984); Macklin v. Frazier, 9 Bush (Ky.) 3; Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467. 11 Warehousemen are only ordinary bailees for hire, and are bound only to common care and diligence, and are liable only for want of such diligence or care. Edw. Bailm. 254; Jones, Bailm. 97; Story, Bailm. § 444; Cailiff v. Danvers, Peake (Eng.) 155; Foote v. Storrs, 2 Barb. (N. Y.) 326, 328; Bogert v. Haight, 20 Barb. (N. Y.) 251; Myers v. Walker, 31 Ill. 353; Buckingham v. Fisher, 70 Ill. 121; Hatchett v. Gibson, 13 Ala. 587; Dimmick v. Milwaukee

therefore liable only for negligence as thus judged. The rules as to negligence and the burden of proving it 12 that govern bailments in general, and the tests by which ordinary care is determined in other mutual benefit bailments, are all applicable here.13 The place of storage is of great practical importance, as well as the precautions to protect the goods against damage from such

14

& St. P. Ry. Co., 18 Wis. 471; McCullom v. Porter, 17 La. Ann. 89; Blin v. Mayo, 10 Vt. 56, 59, 33 Am. Dec. 175; Taylor v. Secrist, 2 Disn. (Ohio) 299; Cowles v. Pointer, 26 Miss. 253; Rodgers v. Stophel, 32 Pa. 111, 72 Am. Dec. 775; Ducker v. Barnett, 5 Mo. 97; Mechanics' & T. Co. v. Kiger, 103 U. S. 352, 26 L. Ed. 433. A warehouseman is not liable as a common carrier, but only for ordinary diligence. Ducker v. Barnett, 5 Mo. 97; Cincinnati & C. Air Line R. Co. v. McCool, 26 Ind. 140; Holtzclaw v. Duff, 27 Mo. 392; Titsworth v. Winnegar, 51 Barb. (N. Y.) 148; Knapp v. Curtis, 9 Wend. (N. Y.) 60. The duty of warehousemen imposes on them the exercise of ordinary care only, or, in other words, the care and diligence which good and capable warehousemen are accustomed to show under similar circumstances. Lancaster Mills v. Merchants' Cotton-Press Co., 89 Tenn. 1, 14 S. W. 317, 24 Am. St. Rep. 586. Whatever a diligent man would deem necessary, under any given circumstances, for the preservation of his own property, must be done by the individual, or corporation, or city, that undertakes, for hire, the preservation of property for the public. Willey v. Allegheny City, 118 Pa. 490, 12 Atl. 453, 4 Am. St. Rep. 608. See, also, the following modern cases: Denver Public Warehouse Co. v. Munger, 20 Colo. App. 56, 77 Pac. 5; Charlotte Trouser Co. v. Seaboard Air Line R. Co., 139 N. C. 382, 51 S. E. 973; Louisville & N. R. Co. v. United States, 39 Ct. Cl. 405; Wiley v. Locke, 81 Kan. 143, 105 Pac. 11, 24 L. R. A. (N. S.) 1117, 19 Ann. Cas. 241; Baltimore Refrigerating & Heating Co. v. Kreiner, 109 Md. 361, 71 Atl. 1066.

12 Davis v. Hurt, 114 Ala. 146, 21 South. 468; Taussig v. Bode & Haslett, 134 Cal. 260, 66 Pac. 259, 54 L. R. A. 774, 86 Am. St. Rep. 250; Geo. C. Bagley Elevator Co. v. American Exp. Co., 63 Minn. 142, 65 N. W. 264; Evans v. New York & P. S. S. Co. (D. C.) 163 Fed. 405; Hoeveller v. Myers, 158 Pa. 461, 27 Atl. 1081; Marks v. New Orleans Cold Storage Co., 107 La. 172, 31 South. 671, 57 L. R. A. 271, 90 Am. St. Rep. 285.

13 Security Storage & Trust Co. v. Denys, 119 Md. 330, 86 Atl. 613: Buffalo Grain Co. V. Sowerby, 195 N. Y. 355, 88 N. E. 569; Baltimore & O. R. Co. v. Schumacher, 29 Md. 168, 96 Am. Dec. 510; Sibley Warehouse & Storage Co. v. Durand & Kasper Co., 200 Ill. 354, 65 N. E. 676; Mayer v. Brensinger, 180 Ill. 110, 54 N. E. 159, 72 Am. St. Rep. 196; Muskogee Crystal Ice Co. v. Riley Bros., 24 Okl. 114, 108 Pac. 629. In Chenowith v. Dickinson, 8 B. Mon. (Ky.) 156, it appeared that 900 barrels of salt were stored in a frame warehouse, on an alley. Two hundred and forty barrels were stolen, in quantities ranging from 20 to 25 barrels a day, so that the entire 240 barrels were taken at about 10 different times, running through a period of one month. It was held that the defendants were negligent in failing to exercise any further care or supervision after placing the salt in the warehouse.

14 Moulton v. Phillips, 10 R. I. 218, 14 Am. Rep. 663; Walden v. Finch, 70 Pa. 460. See Hickey v. Morrell, 102 N. Y. 454, 7 N. E. 321, 55 Am. Rep. 824. Cf. Hallock v. Mallett, 55 N. Y. Super. Ct. 265. The law does not require a warehouseman to construct his buildings secure from all possible contingencies. If they are reasonably and ordinarily safe against ordinary DOB.BAILM.—11

agencies as fire,15 theft,10 heat or cold," and dampness. Modern improvements have made tremendous strides in devising and perfecting such protective methods, and with these the warehouseman must keep pace. He need not be among the first to try every new device; he must not be among the last to abandon such as are old and outworn. Particularly is this true when perishable goods are received in "cold storage," 18 a business which modern

and common occurrences, it is sufficient. Cowles v. Pointer, 26 Miss. 253. See, also, Schouler, Bailm. (2d Ed.) § 102; Hatchett v. Gibson, 13 Ala. 587; Jones v. Hatchett, 14 Ala. 743; Chenowith v. Dickinson, 8 B. Mon. (Ky.) 156; Moulton v. Phillips, 10 R. I. 218, 14 Am. Rep. 663. The bailee may show that the bailor approved of the place of storage, and that the goods were damp when delivered, and liable to mildew; and the bailor, that the goods were in the ordinary trade condition, and that the bailee knew they should have been aired and dried. Brown v. Hitchcock, 28 Vt. 452. Where a bailee to store cotton for hire permitted it to remain with the roping off, the bagging torn, the cotton loose, and the under bales in the mud, whereby it was much injured, held, that it was a want of ordinary care. Morehead v. Brown, 51 N. C. 367.

15 McLane, Swift & Co. v. Botsford Elevator Co., 136 Mich. 664, 99 N. W. 875, 112 Am. St. Rep. 384; Walker v. Eikleberry, 7 Okl. 599, 54 Pac. 553. A warehouseman who agrees to store the property in a fireproof building is liable for any loss caused by his failure to do so. Vincent v. Rather, 31 Tex. 77, 98 Am. Dec. 516. See, also, Jones v. Hatchett, 14 Ala. 743; Hatchett v. Gibson, 13 Ala. 587. In Hamilton v. Elstner, 24 La. Ann. 455, the warehouseman was held liable for failure to remove the goods to a place of safety after knowledge of danger from the fire.

16 Lockwood v. Manhattan Storage & Warehouse Co., 28 App. Div. 68, 50 N. Y. Supp. 974; Murray v. International S. S. Co., 170 Mass. 166, 48 N. E. 1093, 64 Am. St. Rep. 290; Moore v. Mayor, etc., of City of Mobile, 1 Stew. (Ala.) 284; COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, Dobie Cas. Bailments and Carriers, 1; Vere v. Smith, 1 Vent. (Eng.) 121; Coke, Inst. 89a; Southcote v. Bennet, 4 Coke (Eng.) 83b; Lamb v Western R. Corp., 7 Allen (Mass.) 98; Cass v. Boston & L. R. Co., 14 Allen (Mass.) 448; Claflin v. Meyer, 75 N. Y. 260, 31 Am. Rep. 467; Platt v. Hibbard, 7 Cow. (N. Y.) 497; Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 Am. Dec. 143; Williamson v. New York, N. H. & H. R. Co. (Super. Ct.) 4 N. Y. Supp. 834; Williams v. Holland, 22 How. Prac. (N. Y.) 137; Berry v. Marix, 16 La. Ann. 248. Warehousemen not chargeable with negligence are not answerable for goods intrusted to them, in case of robbery, or when embezzled by their storekeeper or servant; and the onus of showing negligence is on the owner. Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 Am. Dec. 143; Moore v. Mayor, etc., of City of Mobile, 1 Stew. (Ala.) 284.

17 Rudell v. Grand Rapids Cold Storage Co., 136 Mich. 528, 99 N. W. 756; Sutherland v. Albany Cold Storage & Warehouse Co., 171 N. Y. 269, 63 N. E. 1100, 89 Am. St. Rep. 815. As to rats, see Cailiff v. Danvers, 1 Peake (Eng.) 155. The constant presence of a terrier dog is sufficient precaution, Taylor v. Secrist, 2 Disn. (Ohio) 299, 301; or of a cat, Cailiff v. Danvers, 1 Peake (Eng.) 155; Aymar v. Astor, 6 Cow. (N. Y.) 266, 267. But see, contra, Laveroni v. Drury, 16 Jur. (Eng.) 1024, 22 L. J. Exch. 2.

18 See, in general, the following cold storage cases: Baltimore Refrigerating