Nature of Bailee's Interest

There is no little confusion in the books as to the nature of the interest of the bailee in a bailment for the bailor's sole benefit. Does this consist merely of a "possessory interest," or does it rise to the dignity of a "special property" in the bailed goods? Much of this confusion is no doubt due to an inaccurate use of terms.

60

If by the term "special property" is meant "something in the nature of an estate carved out of the general ownership in a thing," a right in rem, in other words, a fixed right inhering in a thing or definitely attached to it, then it would seem that the precarious interest of the gratuitous bailee is certainly not a special property. It is clear, though, that such a bailee has a lawful custody and possession of the thing, which he can protect when such possession is interfered with by third persons.1 The real special property is in the thing, and can be asserted, regardless of persons. (being available equally against one as against another), against all the world. But in the bailment in question, the bailor can at any time terminate the bailment and recover the goods." This seems utterly inconsistent with the notion that the bailee's interest in the goods amounts to a special property. The bailee here, then, has a possessory interest, but not a special property, in the bailed goods. This distinction will become clearer when the bailee in mutual benefit bailments is contrasted with the bailee in gratuitous bailments as to their comparative interests in the goods. forming the subject-matter of the bailment.

62

60 COMMONWEALTH v. MORSE, 14 Mass. 217, Dobie Cas. Bailments and Carriers, 51; Norton v. People, 8 Cow. (N. Y.) 137; Sibley v. Story, 8 Vt. 15; Hartop v. Hoare, 3 Atk. (Eng.) 44, 2 Strange, 1187. In Faulkner v. Brown, 13 Wend. (N. Y.) 63, Savage, C. J., asserts that the bailee in such a bailment has a special property in the goods, but it was necessary here only to hold that the bailee had rightful possession of the goods.

61 But if the depositary has no property whatever in the goods, yet his possession is sufficient ground for a suit against a tort-feasor. Poole v. Symonds, 1 N. H. 289, 8 Am. Dec. 71; Thayer v. Hutchinson, 13 Vt. 504, 37 Am. Dec. 607; Sutton v. Buck, 2 Taunt. (Eng.) 302; Burton v. Hughes, 2 Bing. 173. A depositary may sue one who has converted the property, though the former may not be responsible to the owner. CHAMBERLAIN v. WEST, 37 Minn. 54, 33 N. W. 114, Dobie Cas. Bailments and Carriers, 59. A receiptor to whom a sheriff has intrusted for safe-keeping property attached by him on a writ against a third person may maintain trover against a wrongdoer. Thayer v. Hutchinson, 13 Vt. 504, 37 Am. Dec. 607; Compare Dillenback v. Jerome, 7 Cow. (N. Y.) 294; Norton v. People, 8 Cow. (N. Y.) 137. A finder or other depositary may maintain trover against a person converting the article. Armory v. Delamirie, 1 Strange (Eng.) 505; New York & H. R. Co. v. Haws, 56 N. Y. 175; Brown v. Shaw, 51 Minn. 266, 53 N. W. 633.

62 Post, p. 72...

The reason often given for the statement that bailee in a bailment for the bailor's sole benefit has a special property in the goods is that he may maintain the common-law action of trover against one who disturbs his possession by a conversion of the goods, and that, to maintain trover, the plaintiff must have either an absolute or special property in the goods, rather than a mere interest. This test, however, is far from conclusive. Trover is not exclusively founded on a property in goods." It might be remarked that, even if it were, the bailee would bring trover because he had a property in the goods; he would not have such a property because he could bring trover. Such a test could not be applied in those progressive states which by the adoption of "code pleading" have abolished the many futile distinctions between common-law forms of action.

Right of Bailor and Bailee to Sue

As has been seen, the general property or ownership in the thing bailed remains in the bailor, though possession passes to the bailee. Accordingly, it is held that either the bailor or bailee may sue third persons for any interference with the bailee's possession or any injury to the thing bailed. When the bailee sues. such third person, in spite of the precarious nature of his possession, it is held that he may recover the full amount of damage to the thing bailed, holding as a kind of trustee for the bailor, and this, even when the bailee would not himself be liable to the bailor for such wrongful act. A full recovery by either bailor or bailee is a bar to a subsequent action by the other. A tendency is clear, however, in recent times to regard the interests of the bailor and bailee as separate and to permit each to sue only for injury to his own interest, and not to recover damages to be held as trustee for the other.""

63 See cases cited in note 61.

64 But possession is sufficient. 1 Street, Foundations of Legal Liability, p. 251.

65 Fish v. Skut, 21 Barb. (N. Y.) 333; Tremont Coal Co. v. Manly, 60 Pa. 384. And see Rooth v. Wilson, 1 Barn. & Ald. 58; Thorp v. Burling, 11 Johns. (N. Y.) 285; Cary v. Hotailing, 1 Hill (N. Y.) 311, 37 Am. Dec. 323; Ash v. Putnam, 1 Hill (N. Y.) 302. A gratuitous bailee may maintain an action for the loss of bailed property against a wrongdoer, and the fact that the bailee is not liable to the bailor is no defense. Abrahamovitz v. New York City Ry. Co., 54 Misc. Rep. 539, 104 N. Y. Supp. 663. Where goods have been illegally taken from a bailee in possession, the latter has a right to recover as against the wrongdoer the market value of the goods, and the bailee will then be liable over to the bailor for such interest as he may have in the goods. McCrossan v. Reilly, 33 Pa. Super. Ct. 628.

66 Green v. Clarke, 12 N. Y. 343; Chesley v. St. Clair, 1 N. H. 189; Abrahamovitz v. New York City R. Co., 54 Misc. Rep. 539, 104 N. Y. Supp. 663. 67 See article, 25 Harvard Law Review, 655.

DEGREE OF CARE TO BE EXERCISED BY THE BAILEE

29. The bailee owes the duty of exercising only slight care as to the bailed goods. For the violation of this duty, which is negligence, the bailee is liable for any loss or injury directly and proximately resulting therefrom.

In bailments of the class under discussion, since the sole benefit accrues to the bailor, the duty owed by the bailee is placed at merely slight care and the law holds the bailee liable only when loss of the goods or injury to them is fairly attributable to the bailee's failure to exercise even this slight care.68 As soon as the legal duty is stated,

68 Depositum: See Dunn v. Branner, 13 La. Ann. 452; Chase v. Maberry, 3 Har. (Del.) 266; Dougherty v. Posegate, 3 Iowa, 88; Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680; Mechanics' & Traders' Bank v. Gordon, 5 La. Ann. 604; Foster v. President, etc., of Essex Bank, 17 Mass. 479, 9 Am. Dec. 168; Edson v. Weston, 7 Cow. (N. Y.) 278; Sodowsky's Ex'r v. McFarland, 3 Dana (Ky.) 204; Whitney v. Lee, 8 Metc. (Mass.) 91; McKay v. Hamblin, 40 Miss. 472; Montieth v. Bissell's Adm'r, Wright (Ohio) 411; Spooner v. Mattoon, 40 Vt. 300, 94 Am. Dec. 395; Davis v. Gay, 141 Mass. 531, 6 N. E. 549; Henry v. Porter, 46 Ala. 293; Hale v. Rawallie, 8 Kan. 136; De Lemos v. Cohen, 28 Misc. Rep. 579, 59 N. Y. Supp. 498.

Mandatum: See Kemp v. Farlow, 5 Ind. 462; McNabb v. Lockhart, 18 Ga. 495; Skelley v. Kahn, 17 Ill. 170; CONNER v. WINTON, 8 Ind. 315, 65 Am. Dec. 761, Dobie Cas. Bailments and Carriers, 54; Jourdan v. Reed, 1 Iowa, 135; Storer v. Gowen, 18 Me. 174; Lampley v. Scott, 24 Miss. 528; McLean v. Rutherford, 8 Mo. 109; Stanton v. Bell, 9 N. C. 145, 11 Am. Dec. 744; Sodowsky's Ex'r v. McFarland, 3 Dana (Ky.) 204; Tompkins v. Saltmarsh, 14 Serg. & R. (Pa.) 275; Anderson v. Foresman, Wright (Ohio) 598; TRACY v. WOOD, 3 Mason, 132, Fed. Cas. No. 14,130, Dobie Cas. Bailments and Carriers, 52; Lobenstein v. Pritchett, 8 Kan. 213.

And, generally, First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278, 19 Am. Rep. 181; Lancaster County Nat. Bank v. Smith, 62 Pa. 47; Griffith v. Zipperwick, 28 Ohio St. 388; Green v. Birchard, 27 Ind. 483; Knowles v. Atlantic & St. L. R. Co., 38 Me. 55, 61 Am. Dec. 234; Dinsmore v. Abbott, 89 Me. 373, 36 Atl. 621; 'Jenkins v. Bacon, 111 Mass. 373, 15 Am. Rep. 33; Eddy v. Livingston, 35 Mo. 487, 88 Am. Dec. 122; Belmont Coal Co. v. Richter, 31 W. Va. 858, 8 S. E. 609; King v. Exchange Bank, 106 Mo. App. 1, 78 S. W. 1038; Smith v. Elizabethport Banking Co., 69 N. J. Law, 288, 55 Atl. 248. One to whom a picture was sent without his knowledge is not liable for an accidental injury to it. Lethbridge v. Phillips, 2 Starkie (Eng.) 544. Bailee liable only for gross negligence is still liable for actual conversion of the property. Graves v. Smith, 14 Wis. 5, 80 Am. Dec. 762. Where a hotel clerk received and signed a return receipt for a registered letter delivered to him by a letter carrier for a guest of the hotel, and the letter was lost through his negligence, he was held liable. Joslyn v. King, 27 Neb. 38, 42 N. W. 756, 4 L. R. A. 457, 20 Am. St. Rep. 656. Where one gratuitously undertakes to carry a letter containing money from one city to another, he is liable for nondelivery. Beardslee v. Richardson, 11 Wend. (N. Y.) 25, 25 Am. Dec. 596;

DOB.BAILM.—5

it follows that any breach of this duty by the bailee is negligence, which renders him liable for damages proximately ensuing. This measure of slight care as the criterion of the liability of the bailee receiving no benefit from the relation was laid down by Lord Holt in the celebrated case of COGGS v. BERNARD 69 has since been very generally followed.

(1703), and

What constitutes slight care, however, is a question of no little difficulty. It cannot be answered by any exact rule that will

Graves v. Ticknor, 6 N. H. 537. A ring deposited with defendant to be illegally raffled for was lost by his gross carelessness. Held, that he was liable. Woolf v. Bernero, 14 Mo. App. 518. An agreement by an agent of a carrier to have goods forwarded to their proper destination, from a point on a connecting line to which they were carried through the mistake of the shipper in addressing them, makes such carrier merely a gratuitous bailee of the goods. Treleven v. Northern Pac. R. Co., 89 Wis. 598, 62 N. W. 536. A common carrier is not liable, as a trespasser, to the owner of merchandise which it has refused to receive, as being badly packed, and which is destroyed, without negligence on its part, while being separated by it from other freight with which it has been improperly mixed, and which it is such carrier's duty to transport. Gulf, C. & S. F. Ry. Co. v. Insurance Co. of North America (Tex. Civ. App.) 28 S. W. 237. Where the defendant was to carry gold dust from California to Iowa gratuitously, there dispose of it, and turn the proceeds over to plaintiff's wife, he was held liable only for gross negligence. Jourdan v. Reed, 1 Iowa, 135. Where a person was to take abroad bonds gratuitously, and deposit them for sale for another person, he was held liable only for gross negligence. Carrington v. Ficklin's Ex'rs, 32 Grat. (Va.) 670.

On a deposit or bailment of money, to be kept without recompense, if the bailees, without authority, attempt to transmit the money to the bailor, at a distant point, by mail or private conveyance, and the money is lost, they are responsible. Stewart v. Frazier, 5 Ala. 114. If the bailee delegates his trust without the consent of the bailor, he is liable regardless of the question of negligence. Colyar v. Taylor, 1 Cold. (Tenn.) 372. Where plaintiff gave money to defendant to keep for him, it constituted a bailment, and on loss of the money defendant would be liable to restore it only in case of gross negligence on his part. Patriska v. Kronk, 57 Misc. Rep. 552, 109 N. Y. Supp. 1092. A deposit of $1,000, made by plaintiff with his brother, placed in an envelope marked as plaintiff's property and put in a safe, is a gratuitous bailment, entailing no liability except for gross negligence. Stevens v. Stevens, 132 Mo. App. 624, 112 S. W. 35. Even if an agreement between plaintiff and defendant that defendant should provide storage and insurance for plaintiff's piano constituted merely a gratuitous agency, the defendant was obligated to act in good faith, without negligence, and to obey the instructions of the plaintiff, as principal, to procure insurance. Schroeder v. Mauzy, 16 Cal. App. 443, 118 Pac. 459.

692 Ld. Raym. 909, Dobie Cas. Bailments and Carriers, 1. Many of the cases cited in the preceding note and in succeeding notes use the unfortunate term "gross negligence" in stating the liability of the gratuitous bailee, and others go even further and define gross negligence in such terms as to make it the equivalent of a failure to use ordinary (instead of slight) care.

furnish a reliable test in all cases. But the question is one of fact, to be determined according to the peculiar circumstances of each particular case by the jury, under proper instructions from the court." 70

It is clear, though, that by slight care is meant some care, and that slight care is less than ordinary care (demanded of bailees in mutual benefit bailments), which is itself less than the great care which is demanded of the bailee, when the bailment is solely for his benefit. By just how much slight care is less than ordinary care cannot be exactly stated, since degrees of care do not vary by definite units, nor are they capable of being judged by mathematical standards.

Judge Story "1 describes slight care as that degree of care which men habitually careless or of little prudence generally take in their own concerns. This sets up, then, a theoretical man, who is accustomed to take less care than the ordinary man usually takes about his concerns, by whose habitual conduct slight care is judged. Though slight care is the least exacting and most lenient standard by which the legal responsibility of a bailee is judged, yet the failure to exercise even that care by no means implies fraud, bad faith, or willful wrong on the bailee's part. Witness, for example, the stock case of a man carelessly leaving a purse filled with gold on a table in the public room of an inn.

Slight care is necessarily a term with a meaning of intense

70 Lancaster County Nat. Bank v. Smith, 62 Pa. 47; Griffith v. Zipperwick, 28 Ohio St. 388; Doorman v. Jenkins, 2 Adol. & E. (Eng.) 256; Carrington v. Ficklin's Ex'rs, 32 Grat. (Va.) 670; Third Nat. Bank of Baltimore v. Boyd, 44 Md. 47, 22 Am. Rep. 35; Gulledge v. Howard, 23 Ark. 61; Skelley v. Kahn, 17 Ill. 170; Storer v. Gowen, 18 Me. 174; Kirtland v. Montgomery, 1 Swan (Tenn.) 452. See also State's Prison v. Hoffman & Bros., 159 N. C. 564, 76 S. E. 3; McKenny Transfer Co. v. Mayer Bros. Co., 170 Ill. App. 607; Baker v. Bailey, 103 Ark. 12, 145 S. W. 532, 39 L. R. A. (N. S.) 1085; Schroeder v. Mauzy, 16 Cal. App. 443, 118 Pac. 459.

71 Bailm. § 16. In Tompkins v. Saltmarsh, 14 Serg. & R. (Pa.) 275, gross negligence was defined as the omission of that degree of care which even the most inattentive and thoughtless men take of their own concerns. Ordinary negligence was defined as the want of that diligence which the generality of mankind use in their own concerns. These definitions were approved in First Nat. Bank of Carlisle v. Graham, 79 Pa. 106, 117, 21 Am. Rep. 49. The amount of care which gratuitous bailees, under the same circumstances, are accustomed to take of similar goods is a good test. Brown, Carriers, § 28; TRACY v. WOOD, 3 Mason, 132, Fed. Cas. No. 14,130, Dobie Cas. Bailments and Carriers, 52; GRAY v. MERRIAM, 148 Ill. 179, 35 N. E. 810, 32 L. R. A. 769, 39 Am. St. Rep. 172, Dobie Cas. Bailments and Carriers, 43; Preston v. Prather, 137 U. S. 604, 11 Sup. Ct. 162, 34 L. Ed. 788; Bland v. Womack, 6 N. C. 373; Anderson v. Foresman, Wright (Ohio) 598.