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any way on the land notes that were placed there on the sale of some land in March before that. He studied a minute, and says: "No, he never has." I says: "Father has been drinking very heavily lately, and mother was afraid he had tried to draw the interest on it or something of the kind, and she sent me here to tell you that, if he did, not to let him have any of the money, not to let him have any of the interest, or anything on the note." He says: "Tell her to rest easy, I won't let him have them." I says: "Nor nobody else; he may try to borrow money on the outside and give them as security." I said: "She placed this note here to meet a mortgage on the home place, and if he gets the money they will lose their money, and not be able to pay the mortgage off that is on their home." He says: "Her and Pat both told me that when they put them in. You tell her to rest easy; I will attend to it." I says: "Mr. De Boe, is my notice lawful and legal; could he handle those notes by my notification, or had my mother better come in person and serve notice on the officers in order to give proper notice, in order that in the event pa should come, or anybody come and try to get them?" says: "Your notice is all right; tell her to rest easy; I will attend to it for her." That was the conversation between me and Mr. De Boe; that was in October, a few weeks before she took sick.


Q. You never told the cashier of the bank not to cash any checks issued by your father and mother?

A. I told him to take care of the land notes; not to let him have any money on them; that was my instructions.

Q. I will ask you if you ever told Mr. De Boe, cashier of the bank, not to cash any checks drawn on that bank signed by Ellen and Pat Kierce?

A. No, I didn't tell him that.

The evidence also shows that Pat Kierce was in the habit of drinking excessively; that Ellen Kierce was stricken with a serious illness early

in November, 1909, and died in February, 1910, and that from the beginning of her illness until her death she was unable to transact any business, and did not sign any checks.

George Higgerson, the purchaser of the land in payment for which he executed the three notes, paid by his check to Pat and Ellen Kierce on November 24, 1909, $466.67 in satisfaction of one of the notes, and this check, as appears from the records of the Farmers Bank, was on that day deposited in the bank to the credit of an account in the name of Ellen and Pat Kierce. The other two notes he paid by a check payable to Ellen and Pat Kierce for $900, on February 7, 1910. Neither this check nor its proceeds were deposited in the Farmers Bank to the credit of the account of Ellen and Pat Kierce.

The cashier, De Boe, testified that the Farmers Bank never at any time had for collection the notes executed by Higgerson to the Kierces. He said he did have a conversation with Mrs. Trevathan some time in October, 1909, in which she told him not to pay out any more money on the checks of Pat Kierce, but that he did not have any conversation with her in which she asked him to hold the notes, or the money on them. That he did not know that they owed the Union Central Life Insurance Company anything. That he had never collected anything on the notes, but that Pat Kierce, when he collected. the money on the first note, put the check in the bank; that Ellen and Pat Kierce had a joint account in the bank, and no money was drawn out on this account, except on checks signed by Ellen and Pat Kierce.

He said that the bank had a box in which customers were in the habit of putting papers, and that these Higgerson notes were placed in that box for safe-keeping. That Pat Kierce got the notes and gave them to Higgerson, and that he had no right to prevent him from doing so. That he had no instructions from any person not to let him have the notes. Their customers who put

(Kierce's Admr. v. Farmers Bank, 174 Ky. 22, 191 8. W. 644.)

notes or papers in the box had the right to come there and get them out when they wanted to.

There was filed with the evidence of the cashier a copy of the joint bank account of Ellen and Pat Kierce, covering the entire period involved in this suit, and it appears from this account that on November 24, 1909, $466.67 was deposited to the account of Ellen and Pat Kierce. This deposit was the proceeds of one of these notes, paid on that day by Higgerson. The other two notes, as is shown by the evidence of Higgerson, were paid by his check to Ellen and Pat Kierce for $900 on February 17, 1910, but the bank records do not show that this amount, or any part of it, was deposited to the credit of Ellen and Pat Kierce, although the check of Higgerson was made payable to them.

De Boe further testified that this $900 check, after it had been indorsed with the signatures of Ellen and Pat Kierce, which signatures, we may assume, were made by Pat Kierce alone, was delivered to him. That he had no distinct recollection of what disposition was made of this $900 check, and did not remember whether or not Pat Kierce had an individual account in the bank, but if he did, the proceeds, after the indorsement of the check, were placed to his credit. At any rate, neither this $900 check, nor any part of it, was ever credited to the joint account of Ellen and Pat Kierce. What became of the money collected on the check, the record does not show.

There is no evidence in the record that these notes, or any of them, were placed in the bank for collection, or as a special deposit, and the uncontradicted evidence of the cashier is that they were not placed in the bank either for collection, or as a special deposit. It does, however, appear that some time previous to October, 1909, these three notes had been placed by the Kierces in a box that the bank had for the accommodation of its customers, and in which papers might be placed by them.

This box was under the control of
the bank, and kept by it for the use
and accommodation of its customers.

So that, as to all Bailment-
papers placed in deposit of
this box by the cus- papers in
tomers of the bank,


it occupied the relation of a bailee without compensation, and held the papers solely for the accommodation. of the bailor.


The duties of a bailee without compensation and for the mere accommodation of the bailor have been laid down in many cases by this and other courts. The liability of the bailee in bailments like this is very well set forth in 5 Cyc. 186, where it is said: "Where the bailment is one which is for the sole benefit of the bailor, it is uniformly held that the bailee is obligated only to the exercise of slight care, liability of and is only answer- gratuitous able for gross neglect or bad faith." Supporting this rule are: Green v. Hollingsworth, 5 Dana, 174, 30 Am. Dec. 680, 1 Am. Neg. Cas. 771; United Society of Shakers v. Underwood, 9 Bush, 609, 15 Am. Rep. 731; Ray v. Bank of Kentucky, 10 Bush, 344; Dunn v. Kyle, 14 Bush, 134; Kowing v. Manly, 49 N. Y. 192, 10 Am. Rep. 346; Jenkins v. Bacon, 111 Mass. 373, 15 Am. Rep. 33, 1 Am. Neg. Cas. 781. The principle of these cases is also laid down in 3 R. C. L. pp. 99-104.

Evidence-gross negligencepaper to bailor.

Applying to the facts of this case the duty imposed upon the bank as a bailee without compensation, we think there was sufficient evidence to take the case to the jury upon the theory that the delivery of bank, in letting Pat Kierce have possession of these notes, was guilty of bad faith and gross negligence. If the testimony. of Mrs. Trevathan is true, the cashier was instructed not to permit Pat Kierce to have possession of these notes for any purpose, and he promised to observe these instructions. But in violation of the instructions he permitted Pat Kierce to take possession of the notes and collect them.

It is true that $466.67, the proceeds of one of the notes, was placed by Pat Kierce on deposit in the bank to the credit of the account of Ellen and Pat Kierce; but it appears that he drew all this money out on checks to which the names of Ellen and Pat Kierce were signed by himself. The $900 received on the other notes, so far as this record shows, was all paid to him, or at any rate, came into his possession. What part of the proceeds of these notes was applied to the use or benefit of Mrs. Kierce does not appear, nor does the fact that Pat Kierce was her husband alter the duty the bank was under to observe the instructions given by Mrs. Trevathan.

We think there can be no doubt that where a bailment is made of an article owned by two persons, or a note payable to two persons, either one of them may instruct the bailee

Bailmentwrongful delivery-


not to deliver the thing bailed to the other bailor, and if he agrees to do this, and, in violation of these instructions and his agreement, the bailee does deliver the thing to one of the joint bailors, the liability of the bailee will be the same as if he had delivered the thing bailed to a stranger.

We do not, of course, express any opinion upon the merits of the case, or as to the weight that should be attached to the evidence of Mrs. Trevathan, or as to whether she gave to the cashier the instructions related by her. We merely say that her evidence and the other admitted facts made out a state of case entitling the plaintiff to go to the jury under proper instructions, and such instructions were not, as we think, given.

On another trial, if there be one, the jury should be told, in substance,

that if they believe from the evidence that these notes had been placed for safe-keeping in the bank by the Kierces, and, while they were in the bank and before any of them had been paid, Mrs. Kierce, through her agent, notified the cashier not to permit Pat Kierce to get possession of the notes, or any of them, or receive any money on any of them, and he agreed to this, and that, in violation of these instructions and his agreement, the cashier of the bank permitted Pat Kierce to take possession of the notes or the proceeds, they should find for the administrator the amount of the notes with interest, less whatever sum received by Pat Kierce from the proceeds of these notes was applied to the use or benefit of Ellen Kierce. The converse of this instruction should be given if requested.

The parties may also file such amended pleadings as they desire.

versed, with directions for a new Wherefore, the judgment is retrial in conformity with this opinion.


The reported case (TREVATHAN V. FARMERS BANK, ante, 1180), is of interest as bringing out the point that the liability of a gratuitous bailee does not invariably depend upon want of due care on his part, but that if he deals with the subject of the bailment in a manner not warranted by his instructions, and it is lost or damaged, he is liable therefor. In such a case, however, he may escape liability, if his act has been ratified by the bailor with full knowledge of the circumstances. For full discussion of this point, see subd. V. of annotation on page, 1225, on "Duty and liability of gratuitous bailee or mandatary."

(231 Mass. 588, 121 N. E. 505.)




Massachusetts Supreme Judicial Court - January 4, 1919.

(231 Mass. 588, 121 N. E. 505.)

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1. A gratuitous bailee is answerable only for gross negligence which is considered equivalent to a breach of faith, to avoid imputation of which he must exercise the care which he uses toward his own property of a similar kind.

[See note on this question beginning on page 1196.] — gratuitous bailee who is.

2. Buyers of silk by sample, who undertake to return it to the seller when it is found not to correspond with the sample, are gratuitous bailees.

[See 3 R. C. L. 94-96.]

Trial definition of negligence duty of court.

3. The difficulties in stating the distinction between gross and ordinary negligence, in cases where the evidence requires it, must be met and overcome by the court so far as possible.

[See 20 R. C. L. 21-24.] Negligence-definition.

4. Negligence in its ordinary sense is the failure of a responsible person, either by omission or by action, to exercise that degree of care, diligence, and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the peculiar circumstances.

[See 20 R. C. L. 9 et seq.] Definition gross negligence.

5. Gross negligence is an act or omission respecting legal duty, of an aggravated character, as distinguished from a mere failure to exercise ordinary care; it is the absence of slight diligence, a heedless and palpable violation of legal duties respecting the rights of others; but it is less than wilful, wanton, and reckless conduct which is equivalent to intentional wrong.

[See 20 R. C. L. 23.]

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Trial instruction rules of negligence.

6. Where the distinction between negligence and gross negligence prevails, a party, when the evidence makes them applicable, has a right to insist that the jury be instructed in accordance with the principles governing them.

[See 20 R. C. L. 172.] Bailment ability.

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gratuitous rule of li

7. A gratuitous bailee cannot be made liable for loss of goods if he fails merely to exercise the care which an ordinarily prudent man would have exercised under the circumstances.

[See 3 R. C. L. 99 et seq.]

· failure to care for his own.

8. One buying goods by sample, who attempts to return them by express when they are found not to correspond with the sample, is liable to the seller for their loss if he fails to use the care with respect to their shipment which he would have exercised had they been his own.

[See 3 R. C. L. 101, 102.] Trial question for jury negligence.

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9. The jury must determine whether or not one returning silk to a seller because not in accordance with sample was guilty of gross negligence, if he greatly undervalued it in the bill of lading.

[See 3 R. C. L. 154.]

EXCEPTIONS by defendants to rulings of the Superior Court for Suffolk County (Hitchcock, J.) made during the trial of an action brought to recover the value of goods lost because of alleged negligence of defendants, which resulted in a verdict for plaintiff. Sustained.

The facts are stated in the opinion of the court.

4 A.L.R.-75.

Mr. Samuel Sigilman for defendants.

Messrs. Jacobs & Jacobs, for plain


The jury could have found that the defendants were grossly negligent in that they did not use ordinary care in the shipping of the silks.

Smith v. First Nat. Bank, 99 Mass. 605, 97 Am. Dec. 59, 1 Am. Neg. Cas. 523; Whitney v. Lee, 8 Met. 93, 1 Am. Neg. Cas. 789; Massaletti v. Fitzroy, 228 Mass. 487, L.R.A.1918C, 264, 118 N. E. 168, Ann. Cas. 1918B, 1088; Rubin v. Huhn, 229 Mass. 126, post, 1190, 118 N. E. 290.

The trial judge properly ruled that the defendant was a gratuitous bailee, and that under the Sales Act he was not bound to return the goods to the seller, but that it was sufficient if he notified the seller that he refused to accept the goods.

Rubin v. Huhn, supra; Williston, Sales, 497; Dailey v. Green, 15 Pa. 118.

Rugg, Ch. J., delivered the opinion of the court:

The defendants bought by sample seven pieces of silk of the plaintiff. Certain silk from the plaintiff was delivered to the defendants by express, which, on examination, was found not to correspond to the sample. The defendants immediately reshipped the silk to the plaintiff. It was lost by the express company, and never was delivered to the plaintiff. There was evidence that the defendants, or one of their employees, stated to the express ompany at the time of the return hipment that the value of the goods was under $50. In truth their value was much greater. This action in tort is brought to recover the value of the silk (less $50 collected of the express company), on the ground of negligence.

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-extent of

498, 499, 507, 9 Am. Dec. 168, 1 Am. Neg. Cas. 502: "It will not be disputed that, if it amounts only to a naked bailment, without reward, and without any special undertaking, which, in the civil and common law, is called depositum, the bailee will be answerable only for gross is considered negligence, which equivalent to a breach of faith, as everyone who receives the goods of liability. another in deposit impliedly stipulates that he will take some degree of care of it. The degree of care which is necessary to avoid the imputation of bad faith is measured by the carefulness which the depositary uses towards his own property of a similar kind. For, although that may be so slight as to amount even to carelessness in another, yet the depositor has no reason to expect a change of character, in favor of his particular interest; and it is his own folly to trust one who is not able, or willing, to superintend with diligence his own con


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The rule to be applied to this species of bailment is that the depositary is answerable, in case of loss, for gross negligence only, or fraud which will make a bailee of any character


This statement of the law, although made in 1821, constantly through the intervening years, has been recognized as comprehensive and sound, both in this commonwealth and, with some exceptions, generally. As applied to a case of gratuitous bailment, it is adequate. It has recently been reiterated. Rubin v. Huhn, 229 Mass. 126, post, 1190, 118 N. E. 290. The distinction between gross negligence and ordinary negligence also from that early date has been recognized and established. All the pertinent decisions are reviewed at length in Massaletti v. Fitzroy, 228 Mass. 487, L.R.A.1918C, 264, 118 N. E. 168, Ann. Cas. 1918B, 1088. Expressions of dislike of the term, "gross negligence," or of inability to understand or formulate the distinc

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