DEGREE OF CARE TO BE EXERCISED BY THE BAILEE 40. The bailee in a gratuitous loan is held to the exercise of great or extraordinary care or diligence.

As the comparative benefit accruing to the bailee is, in the class of bailments under consideration, greater than in either of the other two classes, it is only fair to exact of the bailee a correspondingly higher degree of care. If in bailments for the bailor's sole benefit only slight care is exacted of the bailee, and if in mutual benefit bailments the standard is set higher at ordinary care, it seems natural to continue the progressive scale, and, in bailments for the bailee's sole benefit, to require a degree of care that is, in turn, greater than ordinary care. And so the bailee's duty here is fixed at great care 32 or extraordinary diligence, the two terms being used interchangeably.

82 Scranton v. Baxter, 4 Sandf. (N. Y.) 5; Phillips v. Coudon, 14 Ill. 84; BENNETT v. O'BRIEN, 37 Ill. 250, Dobie Cas. Bailments and Carriers, 56; Hagebush v. Ragland, 78 Ill. 40; Howard v. Babcock, 21 Ill. 259; Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680; FORTUNE v. HARRIS, 51 N. C. 532, Dobie Cas. Bailments and Carriers, 61; Ross v. Clark, 27 Mo. 549; Wood v. McClure, 7 Ind. 155; Carpenter v. Branch, 13 Vt. 161, 37 Am. Dec. 587; Vaughan v. Menlove, 3 Bing. (N. C.) 468, 475. If bailment be for exclusive benefit of bailee, greatest care and attention is necessary to discharge him in case of loss; hence bailee of negress was held liable when he sent her where smallpox was known to be raging, and she sickened and died of that disease. De Tollenere v. Fuller, 1 Mill, Const. (S. C.) 117, 12 Am. Dec. 616. In Watkins v. Roberts, 28 Ind. 167, which was a suit for the value of a borrowed horse, the answer was that the horse was borrowed to go to a certain place and return, and that while on his way, and without fault or negligence on his part, the borrower was met by soldiers, who took the horse by force. The answer was held good. In De Fonclear v. Shottenkirk, 3 Johns. (N. Y.) 170, where it was shown that a slave was delivered to a party on trial, and that, upon being allowed to go on an errand, he ran away, it was held that the bailee was not responsible. Where a horse loaned by plaintiff to defendant was carried to defendant's house, and placed in the common horse lot, so used for many years, though it was somewhat slanting, and the horse, being nearly blind, and the weather being wet, slipped and fell upon a stump, breaking its thigh, held, that these facts did not import such negligence as to render defendant liable for the loss of the property. FORTUNE v. HARRIS, 51 N. C. 532, Dobie Cas. Bailments and Carriers, 61. Owner of a flag lent it to his employer, helped to hoist it on employer's building, and left it flying when he went away. It was afterwards injured by a hailstorm. Held, in absence of proof of negligence, that borrower was not liable. BELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57. One who, at owner's request, takes a drive in a sulky, is liable for injury to it occasioned by his want of common prudence. Carpenter v. Branch, 13 Vt. 161, 37 Am. Dec. 587. In a suit

33

The duty of gratuitous borrowers of goods, however, is measured in terms of care, and they are responsible only for negligence, which is the failure to exercise the requisite degree of care. They are never (in spite of the fact that theirs is all the benefit accruing from the bailment) absolutely responsible as insurers for loss or injury, unless they have made themselves thus liable either by specific contract or by their positive wrong. In the absence, then, of such contract or positive wrong, the gratuitous borrower, who has exercised such great care or extraordinary diligence, is not responsible for loss of, or damage to, the goods lent." And it then is immaterial how such loss or damage occurred. He is not liable for loss or damage due to inevitable accident, vis major, or the ordinary wear and tear, unless he negligently or willfully exposed the goods to the danger of such loss, or negligently failed to avert the danger after it became imminent.36

35

brought by the lender against the borrower of a horse, which died in the possession of the latter, after the plaintiff proved the character of the bailment and the death of the horse in the bailee's hands, it devolved on the latter to show he had exercised the degree of care required by the nature of the bailment. BENNETT v. O'BRIEN, 37 Ill. 250, Dobie Cas. Bailments and Carriers, 56. And see Logan v. Mathews, 6 Pa. 417; Bush v. Miller, 13 Barb. (N. Y.) 481; Beardslee v. Richardson, 11 Wend. (N. Y.) 25, 25 Am. Dec. 596; Platt v. Hibbard, 7 Cow. (N. Y.) 497, note; Doorman v. Jenkins, 2 Adol. &· E (Eng.) 256, 259; Marsh v. Horne, 5 Barn. & C. (Eng.) 322; Harris v. Packwood, 3 Taunt. (Eng.) 264. If an injury happen to property in the hands of the borrower, the interference of the lender to remedy the evil will not release the bailee from responsibility for negligence. Todd v. Figley, 7 Watts (Pa.) 542; Eastman v. Sanborn, 3 Allen (Mass.) 594, 81 Am. Dec. 677. And see Bayliss v. Fisher, 7 Bing. (Eng.) 153. See, generally, BENNETT v. O'BRIEN, 37 Ill. 250, Dobie Cas. Bailments and Carriers, 56; Phillips v. Coudon, 14 Ill. 84; Moore v. Westervelt, 27 N. Y. 234, 243; ESMAY v. FANNING, 9 Barb. (N. Y.) 176, Dobie Cas. Bailments and Carriers, 36. A gratuitous bailee for his own benefit is bound to the exercise of extraordinary care. Apczynski v. Butkiewicz, 140 Ill. App. 375. "As he [borrower bailee] alone receives benefit from the contract, he is liable for negligence, however slight; and he is bound to exercise the utmost degree of care in regard to the chattel bailed." 1 Halsbury, Laws of England, p. 538.

83 Archer v. Walker, 38 Ind. 472. But see Watkins v. Roberts, 28 Ind. 167; BELLER v. SCHULTZ, 44 Mich. 529, 7 N. W. 225, 38 Am. Rep. 280, Dobie Cas. Bailments and Carriers, 57; Apczynski v. Butkiewicz, 140 Ill. App. 375. See, also, cases cited in preceding note.

84 Casey v. Suter, 36 Md. 1; World's Columbian Exposition Co. v. Republic of France, 91 Fed. 64, 33 C. C. A. 333; Wilson v. Rockland Mfg. Co., 2 Har. (Del.) 67. See, also, cases cited in note 32.

35 Hyland v. Paul, 33 Barb. (N. Y.) 245; Watkins v. Roberts, 28 Ind. 167; Wood v. McClure, 7 Ind. 155; FORTUNE v. HARRIS, 51 N. C. 532, Dobie Cas. Bailments and Carriers, 61; Abraham v. Nunn, 42 Ala. 51; Yale v. Oliver, 21 La. Ann. 454; Blakemore v. Bristol & E. Ry. Co. (Eng.) 8 E. & B. 1035; Pomfret v. Ricroft, 1 Saund. (Eng.) 321, 323.

36 See Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426; Bowman v. Teall,

*

Lord Holt" said that the borrower is bound to "the strictest care and diligence; * * that, if the bailee be guilty of the least neglect, he will be answerable." This was substantially the rule of the Roman Law, where "exactissima diligentia" marked the degree of diligence exacted.38 The rule at common law requires such diligence as a person of more than ordinary prudence would bestow upon his own property under like circumstances.

Extraordinary care, then, is about as far above ordinary care as slight care is below it; " while the same considerations and difficulties apply in judging how far the great care is above ordinary care as in judging how far below it is the slight care. Much that was formerly said in that connection 40 is equally applicable here. Each, in an individual case, is a question of fact for the jury. Just as the conduct of that hypothetical being, the ordinarily prudent man, in caring for his own goods under like circumstances is the more or less concrete criterion by which ordinary care is judged, so we judge slight care by the man of less than ordinary. prudence and extraordinary care by the man of more than ordinary diligence. Up to this extraordinarily careful man, then, must the gratuitous borrower measure or else be guilty of negligence. Here, as in the case of bailments for the bailor's sole benefit, the doctrine of estoppel can be invoked against the bailor to prevent his recovering damages when loss or injury to the goods is the result of conditions (such as the character of the bailee and the place or manner in which the goods are to be kept) which were well known to the bailor at the time the bailment was created. Here, too, is equally applicable what was there said as to

23 Wend. (N. Y.) 310, 35 Am. Dec. 562; Wing v. New York & E. R. Co., 1 Hilt. (N. Y.) 235; Davis v. Garrett, 6 Bing. (Eng.) 716.

37 In COGGS v. BERNARD, 2 Ld. Raym. (Eng.) 909, 915, Dobie Cas. Bailments and Carriers, 1.

38 See Story, Bailm. § 238.

39 See Mason v. St. Louis Union Stock Yards Co., 60 Mo. App. 93; Whiting v. Chicago, M. & St. P. Ry. Co., 5 Dak. 90, 37 N. W. 222. See, also, cases cited in note 32.

40 Ante, §§ 16, 29.

41 A borrower's character, habits, and skill, so far as known to the lender, may be considered in determining what care or skill was expected by the parties. The lender cannot require greater skill on the part of the borrower than he had a right to presume the borrower was capable of bestowing. If a spirited horse be lent to a raw youth, and the owner knew him to be such, the circumspection of an experienced rider cannot be required; and what would be negligence in the one would not be so in the other. Mooers v. Larry, 15 Gray (Mass.) 451; Knowles v. Atlantic & St. L. R. Co., 38 Me. 55, 61 Am. Dec. 234; Eastman v. Patterson, 38 Vt. 146; Beale v. South Devon Ry. Co., 12 Wkly. Rep. (Eng.) 1115; Wilson v. Brett, 11 Mees. & W. (Eng.) 113:

express or implied representations as to the bailee's possession of special knowledge or peculiar skill.42

TERMINATION OF THE BAILMENT

41. The gratuitous loan for use may be terminated by: (1) Acts of the parties.

(a) Accomplishment of the bailment purpose, or expiration of the time for which the bailment was created.

(b) Mutual consent of both bailor and bailee.

(c) Positive wrong of bailee, at the option of the bailor. (d) Option of either bailor or bailee, under certain circumstances.

(2) Operation of law.

(a) Destruction of the bailed goods.

(b) Death of bailor or bailee, under certain circumstances. (c) Change in legal status of bailor or bailee, under certain circumstances.

Termination by Causes Terminating All Bailments

As

The termination of bailments in general by consent of both bailor and bailee, by the accomplishment of the bailment purpose or expiration of time, by positive wrong of the bailee, or by destruction of the bailed goods has already been discussed. this discussion is true of all bailments, including the loan for use, no further statement here is either necessary or desirable. So we proceed to discuss those cases in which the loan for use presents distinctive features not common to all bailments.

Termination by Option of Bailor or Bailee

As the sole benefit of the transaction accrues to the bailee, and the bailor, therefore, has no interest in having the bailment relation continued, it would seem that the bailee may terminate the bailment at any time."

In a bailment for a definite time or specific purpose, the bailee (having once entered upon the bailment) has, as we have seen, a special property in the goods, which he can assert against all the world, including the bailor. Such a bailment, therefore, can

FORTUNE v. HARRIS, 51 N. C. 532, Dobie Cas. Bailments and Carriers, 61; Story, Bailm. § 245; 2 Kent, Comm. 575, and note.

42 Ante, p. 70.

48 Ante, § 20.

44 Just as in bailments for the bailor's sole benefit, the bailment may at any time be terminated by the bailor.

45 Ante, p. 86.

When the

not be terminated at the mere option of the bailor." bailment is not for a definite time or specific purpose, however, the rights of the bailee are at best more or less precarious possessory interest as against the bailor, though such interest, during its continuance, however, is complete in so far as third persons are concerned. Here, from what has been said, such indefinite bailment can accordingly be terminated at any time at the bailor's option."

Termination by Death

First, as to the death of the bailor. When the bailment is for a definite time or specific purpose, the special property of the bailee in the goods is not affected by the bailor's death, but the bailee can assert his right to keep the goods until the expiration of such time or the accomplishment of such purpose as against the personal representative of the bailor. In indefinite bailments, however, the mere possessory interest of the bailee is terminated by the death of the bailor, and the right to reclaim the goods immediately vests in the bailor's personal representative.

48

We have already had occasion to discuss the personal nature of the loan for use, and we have seen that the bailee has ordinarily no right to transfer his interest and give another the right to use the goods which he himself has. Hence, on the death of the bailee, the very object for which the loan was created, namely, to

46 The better view is that, when the loan is for a definite time, the lender cannot terminate the loan before that time. This was the rule of the civil law. The detriment to the borrower in failing to make other arrangements for his needs is a sufficient consideration to bind the lender to his promise. The borrower's distinct wrong or violation of the contract gives the lender a right to recall the loan. See Root v. Chandler, 10 Wend. (N. Y.) 110, 25 Am. Dec. 546; Hoyt v. Gelston, 13 Johns. (N. Y.) 142; BRINGLOE v. MORRICE, 1 Mod. (Eng.) 210, Dobie Cas. Bailments and Carriers, 58. See, also, Story, Bailm. §§ 258, 271, 277; Schouler, Bailm. 87.

47 Putnam v. Wyley, 8 Johns. (N. Y.) 432, 5 Am. Dec. 346; ORSER v. STORMS, 9 Cow. (N. Y.) 687, 18 Am. Dec. 543; Dobie Cas. Bailments and Carriers, 60; Neff v. Thompson, 8 Barb. (N. Y.) 213; Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680; Pulliam v. Burlingame, 81 Mo. 111, 116, 51 Am. Rep. 229; Clapp v. Nelson, 12 Tex. 370, 62 Am. Dec. 530; Lyle v. Perry, 1 Dyer, 486; Smith v. Milles, 1 Term R. 480; Taylor v. Lendey, 9 East, 49; Clark's Case, 2 Leon. 30. Where loan is for indefinite time, lender must make demand before bringing suit. Payne v. Gardiner, 29 N. Y. 146. Until a demand and refusal to return property loaned for an indefinite time, the statute of limitations does not begin to run against the bailor. Payne v. Gardiner, 29 N. Y. 146; Kelsey v. Griswold, 6 Barb. (N. Y.) 436; Huntington v. Douglass, 1 Rob. (N. Y.) 204; Bruce v. Tilson, 25 N. Y. 194; Roberts v. Berdell, 61 Barb. (N. Y.) 37; Roberts v. Sykes, 30 Barb. (N. Y.) 173.

48 It seems that this would logically follow from the bailee's special property in the goods, if that be conceded.