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any way on the land notes that were in November, 1909, and died in Febplaced there on the sale of some land ruary, 1910, and that from the bein March before that. He studied a ginning of her illness until her death minute, and says: “No, he never she was unable to transact any busihas." I says:

"Father has been ness, and did not sign any checks. drinking very heavily lately, and George Higgerson, the purchaser mother was afraid he had tried to of the land in payment for which he draw the interest on it or something executed the three notes, paid by his of the kind, and she sent me here to check to Pat and Ellen Kierce on tell you that, if he did, not to let him November 24, 1909, $466.67 in satishave any of the money, not to let faction of one of the notes, and this him have any of the interest, or any- check, as appears from the records thing on the note.” He says: "Tell of the Farmers Bank, was on that her to rest easy, I won't let him have day deposited in the bank to the them.” I says: “Nor nobody else; credit of an account in the name of he may try to borrow money on the Ellen and Pat Kierce. The other outside and give them as security.” two notes he paid by a check payable I said: “She placed this note here to Ellen and Pat Kierce for $900, on to meet a mortgage on the home February 7, 1910. Neither this place, and if he gets the money they check nor its proceeds were deposiwill lose their money, and not be able ted in the Farmers Bank to the credto pay the mortgage off that is on it of the account of Ellen and Pat their home.” He says: "Her and Kierce. Pat both told me that when they put The cashier, De Boe, testified that them in. You tell her to rest easy; the Farmers Bank never at any time I will attend to it.” I says: "Mr. had for collection the notes executed De Boe, is my notice lawful and le- by Higgerson to the Kierces. He gal; could he handle those notes by said he did have a conversation with my notification, or had my mother Mrs. Trevathan some time in Octobetter come in person and serve no- ber, 1909, in which she told him not tice on the officers in order to give to pay out any more money on the proper notice, in order that in the checks of Pat Kierce, but that he did event pa should come, or anybody not have any conversation with her come and try to get them ? He in which she asked him to hold the says: “Your notice is all right; tell notes, or the money on them. That her to rest easy; I will attend to it he did not know that they owed the for her.” That was the conversation Union Central Life Insurance Combetween me and Mr. De Boe; that pany anything. That he had never was in October, a few weeks before collected anything on the notes, but she took sick.

that Pat Kierce, when he collected Q. You never told the cashier of the money on the first note, put the the bank not to cash any checks is- check in the bank; that Ellen and sued by your father and mother? Pat Kierce had a joint account in the

A. I told him to take care of the bank, and no money was drawn out land notes; not to let him have any on this account, except on checks money on them; that was my in- signed by Ellen and Pat Kierce. structions.

He said that the bank had a box Q. I will ask you if you ever told in which customers were in the habit Mr. De Boe, cashier of the bank, not

of putting papers, and that these to cash any checks drawn on that Higgerson notes were placed in that bank signed by Ellen and Pat

box for safe-keeping. That Pat Kierce?

Kierce got the notes and gave them A. No, I didn't tell him that.

to Higgerson, and that he had no The evidence also shows that Pat right to prevent him from doing so. Kierce was in the habit of drinking That he had no instructions from excessively; that Ellen Kierce was any person not to let him have the stricken with a serious illness early 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 This box was under the control of right to come there and get them the bank, and kept by it for the use out when they wanted to.

and accommodation of its customers. There was filed with the evidence So that, as to all

Bailmentof the cashier a copy of the joint papers placed in deposit of bank account of Ellen and Pat this box by the cus- papers in Kierce, covering the entire period tomers of the bank, involved in this suit, and it appears it occupied the relation of a bailee from this account that on November without compensation, and held the 24, 1909, $466.67 was deposited to papers solely for the accommodation the account of Ellen and Pat Kierce. of the bailor. This deposit was the proceeds of one The duties of a bailee without of these notes, paid on that day by compensation and for the mere acHiggerson. The other two notes, as commodation of the bailor have been is shown by the evidence of Higger- laid down in many cases by this and son, were paid by his check to Ellen other courts. The liability of the and Pat Kierce for $900 on February bailee in bailments like this is very 17, 1910, but the bank records do not well set forth in 5 Cyc. 186, where it show that this amount, or any part is said: "Where the bailment is one of it, was deposited to the credit of which is for the sole benefit of the Ellen and Pat Kierce, although the bailor, it is uniformly held that the check of Higgerson was made pay

bailee is obligated only to the exerable to them.

cise of slight care,

- liability of De Boe further testified that this and is only answer- gratuitous

bailee. $900 check, after it had been in- able for gross negdorsed with the signatures of Ellen lect or bad faith.” Supporting this and Pat Kierce, which signatures, rule are: Green v. Hollingsworth, 5 we may assume, were made by Pat Dana, 174, 30 Am. Dec. 680, 1 Am. Kierce alone, was delivered to him. Neg. Cas. 771; United Society of That he had no distinct recollection Shakers v. Underwood, 9 Bush, 609, of what disposition was made of this 15 Am. Rep. 731; Ray v. Bank of $900 check, and did not remember Kentucky, 10 Bush, 344; Dunn v. whether or not Pat Kierce had an Kyle, 14 Bush, 134; Kowing v. Manindividual account in the bank, but ly, 49 N. Y. 192, 10 Am. Rep. 346; if he did, the proceeds, after the in- Jenkins v. Bacon, 111 Mass. 373, 15 dorsement of the check, were placed Am. Rep. 33, 1 Am. Neg. Cas. 781. to his credit. At any rate, neither The principle of these cases is also this $900 check, nor any part of it, laid down in 3 R. C. L. pp. 99-104. was ever credited to the joint ac- Applying to the facts of this case count of Ellen and Pat Kierce. the duty imposed upon the bank as What became of the money collected a bailee without compensation, we on the check, the record does not think there was sufficient evidence show,

to take the case to

Evidence-gross There is no evidence in the record the jury upon the

negligencethat these notes, or any of them, theory that the delivery of were placed in the bank for collec- bank, in letting Pat tion, or as a special deposit, and the Kierce have possession of these uncontradicted evidence of the cash- notes, was guilty of bad faith and ier is that they were not placed in gross negligence. If the testimony the bank either for collection, or as of Mrs. Trevathan is true, the casha special deposit. It does, however, ier was instructed not to permit Pat appear that some time previous to Kierce to have possession of these October, 1909, these three notes had notes for any purpose, and he prombeen placed by the Kierces in a box ised to observe these instructions. that the bank had for the accommo- But in violation of the instructions dation of its customers, and in which he permitted Pat Kierce to take pospapers might be placed by them. session of the notes and collect them. It is true that $466.67, the pro- that if they believe from the evi. ceeds of one of the notes, was placed dence that these notes had been by Pat Kierce on deposit in the bank placed for safe-keeping in the bank to the credit of the account of Ellen by the Kierces, and, while they were and Pat Kierce; but it appears that in the bank and before any of them he drew all this money out on checks had been paid, Mrs. Kierce, through to which the names of Ellen and Pat her agent, notified the cashier not to Kierce were signed by himself. The permit Pat Kierce to get possession $900 received on the other notes, so of the notes, or any of them, or refar as this record shows, was all paid ceive any money on any of them, and to him, or at any rate, came into his he agreed to this, and that, in violapossession. What part of the pro- tion of these instructions and his ceeds of these notes was applied to agreement, the cashier of the bank the use or benefit of Mrs. Kierce permitted Pat Kierce to take possesdoes not appear, nor does the fact sion of the notes or the proceeds, that Pat Kierce was her husband al- they should find for the administrater the duty the bank was under to tor the amount of the notes with inobserve the instructions given by terest, less whatever sum received Mrs. Trevathan.

paper to ballor.

by Pat Kierce from the proceeds of We think there can be no doubt these notes was applied to the use or that where a bailment is made of an benefit of Ellen Kierce. The conarticle owned by two persons, or a verse of this instruction should be note payable to two persons, either given if requested. one of them may instruct the bailee The parties may also file such

not to deliver the amended pleadings as they desire. Bailment wrongful thing bailed to the

Wherefore, the judgment is redelivery

other bailor, and if versed, with directions for a new liability. he agrees to do

trial in conformity with this opinion. this, and, in violation of these instructions and his agreement, the bailee does deliver the thing to one

NOTE, of the joint bailors, the liability of the bailee will be the same as if he

The reported case (TREVATHAN v. had delivered the thing bailed to a

FARMERS BANK, ante, 1180), is of instranger.

terest as bringing out the point that We do not, of course, express any

the liability of a gratuitous bailee does opinion upon the merits of the case,

not invariably depend upon want of or as to the weight that should be attached to the evidence of Mrs.

due care on his part, but that if he Trevathan, or as to whether she

deals with the subject of the bailment gave to the cashier the instructions

in a manner not warranted by his inrelated by her. We merely say that

structions, and it is lost or damaged, her evidence and the other admitted he is liable therefor. In such a case, facts made out a state of case en- however, he may escape liability, if titling the plaintiff to go to the jury his act has been ratified by the bailor under proper instructions, and such with full knowledge of the circuminstructions were not, as we think, stances. For full discussion of this given.

point, see subd. V. of annotation on On another trial, if there be one, page, 1225, on "Duty and liability of the jury should be told, in substance, gratuitous bailee or mandatary."

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Massachusetts Supreme Judicial Court - January 4, 1919.

(231 Mass. 588, 121 N. E. 505.) Bailment extent of liability.

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.

Trial instruction

rules of nego 2. Buyers of silk by sample, who un- ligence. dertake to return it to the seller when 6. Where the distinction between it is found not to correspond with the negligence and gross negligence presample, are gratuitous bailees.

vails, a party, when the evidence [See 3 R. C. L. 94-96.]

makes them applicable, has a right to Trial - definition of negligence insist that the jury be instructed in duty of court.

accordance with the principles gov3. The difficulties in stating the dis- erning them. tinction between gross and ordinary

[See 20 R. C. L. 172.] negligence, in cases where the evi

Bailment gratuitous rule of lidence requires it, must be met and

ability. overcome by the court so far as pos

7. A gratuitous bailee cannot be sible.

made liable for loss of goods if he [See 20 R. C. L. 21-24.)

fails merely to exercise the care which Negligence definition.

an ordinarily prudent man would 4. Negligence in its ordinary sense have exercised under the circumis the failure of a responsible person, stances. either by omission or by action, to ex- [See 3 R. C. L. 99 et seq.) ercise that degree of care, diligence, - failure to care for his own. and forethought which, in the dis

8. One buying goods by sample, who charge of the duty then resting on

attempts to return them by express him, the person of ordinary caution

when they are found not to correspond and prudence ought to exercise under

with the sample, is liable to the seller the peculiar circumstances.

for their loss if he fails to use the [See 20 R. C. L. 9 et seq.]

care with respect to their shipment Definition - gross negligence.

which he would have exercised had 5. Gross negligence is an act or they been his own. omission respecting legal duty, of an [See 3 R. C. L. 101, 102.) aggravated character,


Trial question for jury gross guished from a mere failure to exercise ordinary care; it is the absence

negligence. of slight diligence, a heedless and

9. The jury must determine whether palpable violation of legal duties re

or not one returning silk to a seller specting the rights of others; but it is because not in accordance with samless than wilful, wanton, and reckless ple was guilty of gross negligence, if conduct which is equivalent to inten- he greatly undervalued it in the bill tional wrong.

of lading. [See 20 R. C. L. 23.)

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

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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.

-extent of

Mr. Samuel Sigilman for defend- 498, 499, 507, 9 Am. Dec. 168, 1 ants.

Am. Neg. Cas. 502: “It will not be Messrs. Jacobs & Jacobs, for plain disputed that, if it amounts only to

, tiff :

a naked bailment, without reward, The jury could have found that the defendants were grossly negligent in

and without any special undertakthat they did not use ordinary care

ing, which, in the civil and common in the shipping of the silks.

law, is called depositum, the bailee Smith v. First Nat. Bank, 99 Mass.

will be answerable only for gross 605, 97 Am. Dec. 59, 1 Am. Neg. Cas. negligence, which is considered 523; Whitney v. Lee, 8 Met. 93, 1 Am. equivalent to a breach of faith, as Neg. Cas. 789; Massaletti v. Fitzroy,

everyone who re228 Mass. 487, L.R.A.1918C, 264, 118 ceives the goods of liability. N. E. 168, Ann. Cas. 1918B, 1088; another in deposit Rubin v. Huhn, 229 Mass. 126, post, impliedly stipulates that he will take 1190, 118 N. E. 290. The trial judge properly ruled that

some degree of care of it. The dethe defendant was a gratuitous bailee,

gree of care which is necessary to and that under the Sales Act he was

avoid the imputation of bad faith is not bound to return the goods to the

measured by the carefulness which seller, but that it was sufficient if he the depositary uses towards his own notified the seller that he refused to property of a similar kind. For, alaccept the goods.

though that may be so slight as to Rubin v. Huhn, supra; Williston, amount even to carelessness in anSales, $ 497; Dailey v. Green, 15 Pa. other, yet the depositor has no rea118.

son to expect a change of character, Rugg, Ch. J., delivered the opinion in favor of his particular interest; of the court:

and it is his own folly to trust one The defendants bought by sample who is not able, or willing, to superseven pieces of silk of the plaintiff. intend with diligence his own conCertain silk from the plaintiff was cerns.

The rule to be apdelivered to the defendants by ex

plied to this species of bailment is press, which, on examination, was

that the depositary is anfound not to correspond to the swerable, in case of loss, for gross sample. The defendants immedi- negligence only, or fraud which ately reshipped the silk to the plain- will make a bailee of any character tiff. It was lost by the express


This statement of the law, alcompany, and never was delivered to the plaintiff. There was evidence though made in 1821, constantly that the defendants, or one of their through the intervening years, has employees, stated to the express

been recognized as comprehensive company at the time of the return

and sound, both in this commonhipment that the value of the

wealth and, with some exceptions, goods was under $50. In truth generally. As applied to a case of their value was much greater. This gratuitous bailment, it is adequate. action in tort is brought to recover

It has recently been reiterated. Ruthe value of the silk (less $50 col- bin v. Huhn, 229 Mass. 126, post, lected of the express company), on

1190, 118 N. E. 290. The distinction the ground of negligence.

between gross negligence and ordiThere is no controversy that the nary negligence also from that early defendants in

date has been recognized and es


shipping the silk tablished. All the pertinent de

were who is.

gratuitous cisions are reviewed at length in

bailees. The point Massaletti v. Fitzroy, 228 Mass. to be decided is the measure of their 487, L.R.A.1918C, 264, 1.18 N. E. liability as such.

168, Ann. Cas. 1918B, 1088. ExpresIt was said by Chief Justice sions of dislike of the term "gross Parker in the leading case of Fos- negligence," or of inability to unter v. Essex Bank, 17 Mass. 479, derstand or formulate the distinc

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