relativity, varying with an infinite variety of circumstances," such, for example, as the value of the goods or the people among whom the goods are kept. Thus, the same acts of the bailee might exceed slight care in the bailment of a number of bricks, and yet fall far short of the same degree of care when not bricks, but bars of gold, are being kept; or precautions as to the same bar of gold, adequate when it is exhibited before a church sewing society, would show an utter lack of care when the gold is shown before a company composed largely of thugs and thieves. It has been frequently said that the bailee is not liable for a loss or injury where he takes the same care of the thing bailed as he does of his own goods." Such a rule is objectionable for many reasons. The law does not put a premium on carelessness by 74 72 See cases cited in notes 68, 70. See, also, Tompkins v. Saltmarsh, 14 Serg. & R. (Pa.) 275; Eddy v. Livingston, 35 Mo. 487, 88 Am. Dec. 122; TRACY v. WOOD, 3 Mason, 132, Fed. Cas. No. 14,130, Dobie Cas. Bailments and Carriers, 52. Express or implied notice that the article is of unusual value is quite important. Joslyn v. King, 27 Neb. 38, 42 N. W. 756, 4 L. R. A. 457, 20 Am. St. Rep. 656. H. offered to invest a sum of money for D. in the purchase of an annuity. He laid out the money in securities wholly insufficient, and of no value whatever. Held, that it does not necessarily follow from these circumstances that H. was guilty of gross or corrupt negligence. Dartnell v. Howard, 4 Barn. & C. (Eng.) 345. If a depositary fails to procure suitable means for the extinguishment of fires, he cannot be held liable for an accidental fire which destroyed the chattel deposited. Clark v. Eastern R. Co., 139 Mass. 423, 1 N. E. 128. If the deposit is taken away by superior force, the depositary may make this a defense. Watkins v. Roberts, 28 Ind. 167. If a person intrusted with money by his superior to give to a third person gives it to a boy whom he has seen but a few times, and who has but recently entered the employ of said third person, and the boy absconds, the mandatary is guilty of gross negligence, and is liable to his superior for damages. Skelley v. Kahn, 17 Ill. 170. Where the speculations in stocks and bonds, on margins, of a bank cashier, of which the president had knowledge, were such that the president must have known the cashier's dishonesty, the bank is liable for bonds deposited with it as a gratuitous bailee which the cashier converted to his own use. Merchants' Nat. Bank of Savannah v. Guilmartin, 93 Ga. 503, 21 S. E. 55, 44 Am. St. Rep. 182. 73 Anderson v. Foresman, Wright (Ohio) 598. Where money is paid by a judgment debtor to the judge, and the latter places it in his desk with his own money and then notifies the judgment creditor that the money is ready for him, and the latter neglects for two days to call for it, during which time the money is stolen, it was held that the judge was not guilty of gross negligence, and hence was not liable. Montieth v. Bissell's Adm'r, Wright (Ohio) 411. See, also, Knowles v. Atlantic & St. L. R. Co., 38 Me. 55, 59, 61 Am. Dec. 234. It is a suspicious circumstance when a bailee claims to have lost the bailed chattels and to have saved his own when both were together. Bland v. Womack, 6 N. C. 373. 74 First Nat. Bank of Carlisle v. Graham, 79 Pa. 106, 21 Am. Rep. 49; Giblin v. McMullen, 21 Law T. (N. S.) 214; TRACY v. WOOD, 3 Mason, 132, Fed. Cas. No. 14,130, Dobie Cas. Bailments and Carriers, 52; Doorman v. Jen "75 permitting a man to take risks with the goods of another simply because he is willing to take such risks with his own. Slight care refers, not to the particular acts of a specific individual, but "looks to the general conduct and character of a whole class of persons." The most that can be said is that taking the same care of the bailed goods as the bailee takes of his own raises a presumption, prima facie at best (rebuttable by other evidence), that he did take slight care of the bailed goods." In other words, taking the same care of bailed goods as of one's own is not an operative fact (one which in itself determines liability), but merely an evidential fact, tending to prove such an operative fact. Knowledge of Bailee's Character or Manner of Keeping Goods It is held that where the bailor knows the general character and habits of the bailee, and the place where or the manner in which the goods deposited are to be kept by him, the bailor, creating the bailment in the light of this knowledge, must be presumed to assent in advance that his goods shall be thus treated; and if, under such circumstances, they are damaged or lost, it is by reason of his own fault or folly, and he cannot recover damages." The basis of this doctrine is not contributory negligence, but rather that such knowledge and implied assent work an estoppel against the bailor. kins, 2 Adol. & E. (Eng.) 256. See, also, Just. Inst. lib. 3, tit. 15, § 3; COGGS V. BERNARD, 2 Ld. Raym. 909, 914, Dobie Cas. Bailments and Carriers, 1; Foster v. President, etc., of Essex Bank, 17 Mass. 479, 500, 9 Am. Dec. 168. Where a bailee of money alleges that it was stolen from him, the fact that other money belonging to defendant was stolen at the same time is not conclusive against the allegation of gross negligence. Patriska v. Kronk, 57 Misc. Rep. 552, 109 N. Y. Supp. 1092. 75 Story, Bailm. § 64. "Notwithstanding the weight of these authorities, they do not seem to me to express the general rule in its true meaning. The depositary is, as has been seen, bound to slight diligence only; and the measure of that diligence is that degree of diligence which persons of less than common prudence, or indeed of any prudence at all, take of their own concerns. The measure, abstractly considered, has no reference to the particular character of an individual, but it looks to the general conduct and character of a whole class of persons." 76 Cases cited in note 74. * Knowles v. Atlantic & St. L. R. Co., 38 Me. 55, 61 Am. Dec. 234; President, etc., of Conway Bank v. American Express Co., 8 Allen (Mass.) 512; Arthur v. St. Paul & D. R. Co., 38 Minn. 95, 35 N. W. 718; Parker v. Union Ice & Salt Co., 59 Kan. 626, 54 Pac. 672, 68 Am. St. Rep. 383. These principles were applied in the case of a bailor consenting that the hay should be stored in a certain wharf of the bailee. The wharf broke down from overloading No additional incumbrance had been placed on the wharf after the arrival of the hay. It was held that the bailee was not liable. Knowles v. Atlantic & St. L. R. Co., 38 Me. 55, 61 Am. Dec. 234. Where knowledge of a general custom in regard to such bailment can be imputed to the bailor, he is pre Bailments Demanding Skill Somewhat as a corollary to the proposition just stated is the doctrine that, when the bailee expressly holds himself out as possessing special skill or knowledge (or such holding out is involved in the situation of the parties or the nature of the bailment), he is to be judged, on the question of his negligence, by the standard he has himself held out, even though he receives no recompense.78 Thus, if the bailee hold himself out as a veterinarian, the care exercised ordinarily by veterinarians (and not the care of persons unskilled in curing the diseases of horses) is the criterion to be used." Quasi Bailments by Conversion In quasi bailments, where one comes into possession of goods through a wrong, as by conversion, he is strictly liable, irrespective of the question of negligence. By wrongfully taking possession of the goods, he becomes an insurer against loss, regardless of the care and attention that he bestows upon the goods.80 As the liability of the bailee here is measured, not in terms of negligence, but in terms of insurance, the bailee becomes absolutely responsible for loss or damage, regardless of the degree of care he exercised or the manner in which such loss or injury occurred. sumed to have consented that his goods should be kept in accordance with such custom. Cf. President, etc., of Conway Bank v. American Express Co., 8 Allen (Mass.) 512; Kelton v. Taylor, 11 Lea (Tenn.) 264, 47 Am. Rep. 284. 78 One who, without any benefit to himself, rides a horse, at the owner's request, for the purpose of exhibiting him for sale, is bound to use such skill as he possesses, and, if proved to be skilled in horses, is equally liable with a borrower for an injury done to the horse. Wilson v. Brett, 11 Mees. & W. (Eng.) 113, 12 Law J. Exch. 264. Where the profession of the bailee implies skill, a want of skill is imputable as gross negligence. Stanton v. Bell, 9 N. C. 145, 11 Am. Dec. 744; Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; Eddy v. Livingston, 35 Mo. 487, 493, 88 Am. Dec. 122; Shiells v. Blackburne, 1 H. Bl. (Eng.) 158, in which Lord Loughborough says: "I agree with Sir William Jones, that where a bailee undertakes to perform a gratuitous act, from which the bailor alone is to receive benefit, there the bailee is liable only for gross negligence; but if a man gratuitously undertakes to do a thing to the best of his skill, where his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence." Isham v. Post, 141 N. Y. 100, 35 N. E. 1084, 23 L. R. A. 90, 38 Am. St. Rep. 766; The New World v. King, 16 How. 469, 14 L. Ed. 1019. 79 Where a farrier, without reward, offers to cure a horse of a swelling on the hock joint, and he makes the puncture so unskillfully that the horse becomes worthless, this act is equivalent to gross negligence. CONNER v. WINTON, 8 Ind. 315, 65 Am. Dec. 761, Dobie Cas. Bailments and Carriers, 54. 80 For a full discussion of the reasons of this strict liability, see post, TERMINATION OF BAILMENT 30. Bailments for the sole benefit of the bailor may be terminat ed by: (1) Act of the parties. (a) By performance of the bailment purpose, or expiration of the time for which the bailment was created. (b) By mutual consent of both bailor and bailee. (c) At the option of either bailor or bailee, except that, (2) Operation of law. (a) By death of bailor or bailee (in some cases). (b) By change in the legal status of bailor or bailee (in some cases). (c) By destruction of the subject-matter of the bailment. Termination by Full Performance or Expiration of Time 81 Of course, upon the accomplishment of the bailment purpose, or the expiration of the time for which the bailment was created, the bailment, expiring by inherent limitation, comes to a natural end. It then remains for the bailee to redeliver the goods to the bailor, or otherwise deal with them according to the terms of the bailment contract. If the bailee retains possession of the goods, after the bailment is thus ended, a new quasi bailment. springs up; or, on the bailee's wrongful refusal to surrender the goods, the bailor may treat this as a conversion and may sue accordingly. Termination by Mutual Consent of Bailor and Bailee These bailments, like any other bailments, may also be terminated at any time by the mutual assent of both the bailor and bailee.82 The bailment contract, like all other contracts, is always under control of the parties who made it. The parties cannot tie their own hands. The power that created may likewise destroy. So a gratuitous bailment may by mutual consent be changed into one for mutual benefit, and vice versa, or an entirely different arrangement may in like manner be substituted for the bailment relation.83 81 This is common to all bailments. See ante, p. 44. 82 True of all bailments. See ante, p. 45. 83 As where, after making a special deposit of money, the parties agree that the depositary shall pay the depositor interest thereon. This has been Termination at Option of Bailor or Bailee The bailor may at any time terminate the bailment. This arbitrary right follows from the fact that the bailee, having no beneficial interest in the continuance of the bailment as against the bailor, cannot legally object when it is thus ended."" When the bailment is general or indefinite as to its time and purpose, the bailee may at any time terminate the bailment by giving notice to the bailor.85 Thus the bailee would have this right where he was keeping the bailor's horse, with no underheld to change the bailment relation into one of debtor and creditor. Howard v. Roeben, 33 Cal. 399; Hathaway v. Brady, 26 Cal. 581; Chiles v. Garrison, 32 Mo. 475; Rankin v. Craft, 1 Heisk. (Tenn.) 711; Cicalla v. Rossi, 10 Heisk. (Tenn.) 67. 84 Thus, if a deposit is made to be restored at a future time, it may be immediately demanded back by the depositor; for, as the depositary has no interest in the custody, he can have no right to retain the thing against the will of the depositor. If the bailee was to derive a benefit from the custody, the bailment would not belong to this class. Graves v. Ticknor, 6 N. H. 537; Beardslee v. Richardson, 11 Wend. (N. Y.) 25, 25 Am. Dec. 596. So also in the case of mandates, where the thing is to be delivered to a third person, if the latter has no vested interest in it, the bailor may revoke the bailment at any time. On this principle, it was said in a New Hampshire case that a party who deposits money with another, to be appropriated for the benefit of a third person, being under no legal obligation to so appropriate it, has a right to countermand the appropriation, and recall the money at any time before it has been actually appropriated, or before such an arrangement has been entered into between the depositary and the person for whose benefit it was deposited as creates a privity between them and amounts to an appropriation of it. Anything short of this is immaterial and unimportant, so far as concerns the depositor's right to recall and recover back his money. Winkley v. Foye, 33 N. H. 171, 66 Am. Dec. 715. Where the bailor wishes to terminate the bailment, he should make a demand, as a demand and a refusal are ordinarily evidence of conversion. If the bailee improperly refuses to redeliver the goods when demanded, he henceforth holds them at his own peril. If, therefore, they are afterwards lost, either by negligence or inevitable accident, he is liable. The demand fixes liability. Emerick v. Chesrown, 90 Ind. 47; Zuck v. Culp, 59 Cal. 142; Stewart v. Frazier, 5 Ala. 114; Hosmer v. Clarke, 2 Greenl. (Me.) 308; Montgomery v. Evans, 8 Ga. 178; McLain v. Huffman, 30 Ark. 428; Jackman v. Partridge, 21 Vt. 558; Brown v. Cook, 9 Johns. (N. Y.) 361; Magee v. Scott, 9 Cush. (Mass.) 148, 55 Am. Dec. 49. However, when the circumstances show that a demand would be wholly futile, none need be made. A demand and a refusal are not the only evidence of a conversion. First Nat. Bank v. Dunbar, 118 Ill. 625, 9 N. E. 186; Kellogg v. Olson, 34 Minn. 103, 24 N. W. 364; Huntsman v. Fish, 36 Minn. 148, 30 N. W. 455; Derrick v. Baker, 9 Port. (Ala.) 362. 85 A bailee without hire is ordinarily not bound to keep articles deposited with him. He may terminate the bailment by giving the bailor notice to remove the goods, and allowing him a reasonable time in which to do so. If, upon tender of the goods, the owner refuses to take them away, the bailee may place them off from his premises. Dale v. Brinckerhoff, 7 Daly (N. Y.) 45; Roulston v. McClelland, 2 E. D. Smith (N. Y.) 60; De Lemos v. Cohen, 28 Misc. Rep. 579, 59 N. Y. Supp. 498. |