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definition of negligenceduty of court.

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

tion between gross and ordinary negligence, which at various times and in divers jurisdictions have found their way into judicial opinions, are no longer relevant to discussions of that branch of the law as it prevails in this commonwealth. The difficulty in stating that distinction in cases where the evidence requires it must be met and overcome so far as possible. Indeed, simple negligence has sometimes been said not to be susceptible of easy definition. See Gaynor v. Old Colony & N. R. Co. 100 Mass. 208, 214, 97 Am. Dec. 96. But legal obligations must be marked out and explained for the guidance of jurors, the enlightenment of the parties, and the information of the public. Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance, 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 particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law. Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated discharacter, as tinguished from a


Definitiongross negligence.

mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpabil

ity which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. But it is something less than the wilful, wanton, and reckless conduct which renders a defendant who has injured another liable to the latter, even though guilty of contributory negligence, or which renders a defendant in rightful possession of real estate liable to a trespasser whom he has injured. It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is, or ought to be, known to have a tendency to injure. This definition does not possess the exactness of a mathematical demonstration, but it is what the law now affords. It is the result of our own decisions. Massaletti v. Fitzroy, 228 Mass. 487, and cases cited at pages 500, 501, L.R.A. 1918C, 264, 118 N. E. 168, Ann. Cas. 1918B, 1088; Devine v. New York, N. H. & H. R. Co. 205 Mass. 416, 419, 91 N. E. 522; Banks v. Braman, 188 Mass. 367, 369, 74 N. E. 594; Aiken v. Holyoke Street R. Co. 184 Mass. 269, 271, 68 N. E. 238. It is supported by the great weight of authority in other jurisdictions. The definition here given

1Weld v. Postal Teleg. Cable Co. 210 N. Y. 59, 71, 72, 103 N. E. 957, 5 N. C. C. A. 992; Neal v. Gillett, 23 Conn. 437, 443; Gray v. Merriam, 148 Ill. 179, 32 L.R.A. 769, 39 Am. St. Rep. 172, 35 N. E. 810, 1 Am. Neg. Cas. 478; Dallas City R. Co. v. Beeman, 74 Tex. 291, 11 S. W. 1102; Farmers' Mercantile Co. v. Northern P. R. Co. 27 N. D. 302, 146 N. W. 550; Whitney v. First Nat. Bank, 55 Vt. 155, 45 Am. Rep. 598, 1 Am. Neg. Cas. 582; Lothian v. Western U. Teleg. Co. 25 S. D. 319, 323, 126 N. W. 621; Coit v. Western U. Teleg. Co. 130 Cal. 657, 664, 53 L.R.A. 678, 80 Am. St. Rep. 153, 63 Pac. 83; Bennett v. New York, N. H. & H. R. Co.

does not differ in any essential particular from the statement of the rule made by some courts to the effect that gross negligence is the omission of even such diligence as habitually inattentive and careless men do not fail to exercise in avoiding danger to their own person or property. Dudley v. Camden & P. Ferry Co. 42 N. J. L. 25, 28, 36 Am. Rep. 501; Louisville & N. R. Co. v. McCoy, 81 Ky. 403, 413; Louisville & N. R. Co. v. Smith, 135 Ky. 462, 122 S. W. 806; White v. Western U. Teleg. Co. 5 McCrary, 103, 113, 14 Fed. 710; Wiser v. Chesley, 53 Mo. 547; McNabb v. Lockhart, 18 Ga. 495, 507, 1 Am. Neg. Cas. 754. But the definition here formulated is fundamentally at variance with that given in some other jurisdictions, which hold that gross negligence implies wilful conduct, either actual or constructive, intended to cause injury,―a variance recognized in some of those decisions. Jorgenson v. Chicago & N. W. R. Co. 153 Wis. 108, 116, 140 N. W. 1088; Louisville & N. R. Co. v. Orr, 121 Ala. 489, 499, 26 So. 35. See Bouchard v. Dirigo Mut. F. Ins. Co. 114 Me. 361, 365, 96 Atl. 244. The reasons why this court cannot adopt the view of those decisions are set forth at length in Banks v. Braman, 188 Mass. 367, 74 N. E. 594, and need not be repeated here. Moreover, those decisions appear to ignore the contradiction implied in the use of "wilful negligence." See, in this connection, Chicago, R. I. & P. R. Co. v. Hamler, 215 Ill. 525, 540, 1 L.R.A. (N.S.) 674, 106 Am. St. Rep. 187, 74 N. E. 705, 3 Ann. Cas. 42; Terre Haute & I. R. Co. v. 57 Conn. 422, 426, 18 Atl. 668; Doorman v. Jenkins, 2 Ad. & El. 256, 111 Eng. Reprint, 99, 4 Nev. & M. 170, 4 L. J. K. B. N. S. 29; Kingston v. Drennan, 27 Kan. S. C. 46, 60; Donaldson v. Acadia Sugar Ref. Co. 48 N. S. 451, 458; Union P. R. Co. v. Henry, 36 Kan. 565, 569, 570, 14 Pac. 1; Jones v. Atchison, T. & S. F. R. Co. 98 Kan. 133, 137, 157 Pac. 399; Chicago, B. & Q. R. Co. v. Johnson, 103 Ill. 512, 525; Jacksonville Southeastern R. Co. v. Southworth, 135 Ill. 250, 255, 25 N. E. 1093; Memphis & L. R. R. Co. v. Sanders, 43 Ark. 225, 229; Campbell v. Monmouth Mut. F. Ins. Co. 59 Me. 430, 437; Wexel

Graham, 95 Ind. 286, 293, 48 Am. Rep. 719; Thayer v. Denver & R. G. R. Co. 21 N. M. 330, 346, 154 Pac. 691; Milwaukee & St. P. R. Co. v. Arms, 91 U. S. 489, 23 L. ed. 374.

Since the distinction between negligence and gross negligence is embedded in our law, and its principles for the discernment of that distinction are established, a party,

whenever the evi- Trial-instruc

dence makes them tion-rules of negligence. applicable, has a right to insist that the jury be instructed in conformity to them.

In the case at bar the judge instructed the jury respecting the liability of the defendants as gratuitous bailees, by saying at first: ""The duty which the law imposes on gratuitous bailees is that the bailee shall act in good faith;' that is, shall use the degree of care in the performance of the undertaking which is measured by the carefulness gratuitouswhich the deposi- rule of tary uses toward his own property of similar kind, under like circumstances."



That was correct. But the charge did not stop there. The judge then said further: "So that, in determining the question that is presented here, it would be necessary to ask the question whether the defendants, in dealing with the property of the plaintiff, did deal with it with the same degree of carefulness which any person would use toward his own property of similar kind, under like circumstances.

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Now, if the ordinarily prudent man, in shipping goods, in dealing with v. Grand Rapids & I. R. Co. 190 Mich. 469, 477, 157 N. W. 15; Holwerson v. St. Louis & Suburban R. Co. 157 Mo. 216, 240, 241, 50 L.R.A. 850, 57 S. W. 770; Bannon v. Baltimore & O. R. Co. 24 Md. 108, 124; Poling v. Ohio River R. Co. 38 W. Va. 645, 661, 24 L.R.A. 215, 18 S. E. 782, 10 Am. Neg. Cas. 409; Strong v. Western U. Teleg. Co. 18 Idaho, 389, 406, 30 L.R.A. (N.S.) 409, 109 Pac. 910, Ann. Cas. 1912A, 55; Walther v. Southern P. Co. 159 Cal. 769, 37 L.R.A. (N.S.) 235, 116 Pac. 51; Lee v. Northwestern R. Co. 89 S. C. 274, 71 S. E. 840; Colyar v. Taylor, 1 Coldw. 372, 1 Am. Neg. Cas. 825.

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

his own property, would have shipped them by an express company, and would have shipped them upon an express receipt in which the value was limited to not more than a certain sum,-if that would be what an ordinarily prudent man would have done under like circumstances and in a similar situation, if that is what these defendants did, of course, they are not liable. If, on the other hand, they did not deal with it as the ordinarily prudent man, dealing with his own property under like circumstances, would have done, and if they were careless in not doing so, then the plaintiff would be entitled to a verdict in this case."

That was erroneous. It imposed upon the defendants liability for simple negligence. As has been pointed out, they were not liable for ordinary negligence, but only for gross negligence or bad faith.

-failure to care for his own.

It would have been correct to state the law as laid down in Foster v. Essex Bank, 17 Mass. 479, 498, 499, 507, 9 Am. Dec. 168, 1 Am. Neg. Cas. 502; or in Rubin v. Huhn, 229 Mass. 126, post, 1190, 118 N. E. 290, and instruct the jury that bad faith or gross negligence in dealing with the goods held by them was the standard of the defendants' liability, and that failure to use, with respect to the plaintiff's the goods, same care which they exercised toward their own, was sufficient to establish bad faith, and hence liability. But the only evidence as to the way in which the defendants dealt with their own goods of similar character under like circumstances came from an employee of the defendants. The jury might not believe his testimony. If they reached that conclusion, then they would have no standard of bad faith as established by the conduct of the defendants with respect to their own goods under like circumstances, and would

need some guide as to the law which they ought to follow. The judge gave them the rule of ordinary negligence. He ought to have stated to them the other standard of the defendants' liability; that is to say, the liability arising from gross negligence with respect to the property of the plaintiff as defined heretofore in this opinion. This, although requested, he failed to do.

The judge rightly refused to direct a verdict in favor of the defendants. The facts were sufficient to support a finding for the plaintiff. It was for the jury to say whether it was not Trial-question gross negligence or for jury-gross want of good faith


on the part of the defendants to fail to observe the quantity of silk, and to reship it to the plaintiff with an excessive undervaluation given to the carrier, a statement as to value by which the parties became bound by contract. Aradalou v. New York, N. H. & H. R. Co. 225 Mass. 235, and cases cited at page 238, 114 Ń. E. 297.

The jury may have discredited the evidence tending to show that they exercised the same care with respect to the goods of the plaintiff as they did with respect to their own. If they did so discredit it, then they might find gross negligence on the other evidence. Exceptions sustained.


The reported case (ALTMAN v. ARONSON, ante, 1185) is of interest for its discussion of the difference between ordinary negligence and gross negligence. As to just what the term, "gross negligence," as used in the common formula, that a gratuitous bailee is liable only for gross negligence, connotes, see annotation on page 1196, post, on "Duty and liability of gratuitous bailee or mandatary."




Massachusetts Supreme Judicial Court — January 4, 1918.

(229 Mass. 126, 118 N. E. 290.)

Bailment gratuitous appraisement loss liability.

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1. One to whom a diamond is delivered for gratuitous appraisement in a crowded theater lobby is not liable to its owner for its value, merely because he drops and loses it.

[See note on this question beginning on page 1196.]

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2. One who in a crowded theater lobby receives diamonds for inspection and appraisement, without reward, is a mere gratuitous bailee.

[See 3 R. C. L. 94.] care required.

3. A gratuitous bailee must act in good faith; that is, he must use the degree of care in the performance of the undertaking, which he uses towards his own property of similar kind under like circumstances.

[See 3 R. C. L. 101.]

care of prudent man.

4. The care required of one to whom diamonds are delivered for gratuitous appraisement is not measured by that which a reasonably prudent man would exercise under the circumstances.

[See 3 R. C. L. 101 et seq.] Trover loss of diamond


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5. The mere loss of a diamond by one

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APPEAL by defendant from an order of the Appellate Division of the Municipal Court of Boston dismissing the report of an action brought to recover the value of earrings, lost while in defendant's possession for gratuitous appraisement. Affirmed.

The facts are stated in the opinion Messrs. Walter Hartstone and Harry L. Michaels for appellant.

Mr. Samuel Sigilman for appellee. Pierce, J., delivered the opinion of the court:

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of the court.

in a box, and, at the request of Wyner, then and there undertook to inspect, examine, and appraise them, without reward. Foster v. Essex Bank, 17 Mass. 479, 9 Am. Dec. 168. The duty which the law imposes on gratuitous bailees is that the bailee shall act in good faith, that is, shall use the degree of

care in the perform- -care required. ance of the undertaking which is measured by the carefulness which

(229 Mass. 126, 118 N. E. 290.)

the depository uses toward his own property of similar kind under like circumstances. Ibid; Whitney v. Lee, 8 Metc. 91, 1 Am. Neg. Cas. 789; Smith v. First Nat. Bank, 99 Mass. 605, 97 Am. Dec. 59, 1 Am. Neg. Cas. 523.

In an action of contract or of tort

-gratuitous appraisementRoss-liability.

for breach of duty imposed by law, the mere fact "that the defendant dropped one of the earrings, and it was lost," is not sufficient evidence of his gross negligence to warrant a finding for the plaintiff. The finding of the judge "that the defendant, in handling and dealing with the earrings, did not exercise such care as a reasonably prudent man would have exercised under the circumstances," imposed upon the defendant, gratuitous bailee, a standard of care which measures the duty of the bailee for hire. This was manifest

-care of prudent man.


Upon the reported facts the failure to return the lost earring is not a conversion.

Trover-loss of diamondconversion.

"The action of trover is not maintained by proof of negligence, but only of misfeasance amounting to a conversion." Foster, J., in Hall v. Boston & W. R. Corp. 14 Allen, 439, 443, 92 Am. Dec. 783.

As regards the other earring, the facts found warrant a finding that the defendant, in the possession of the earring, on demand, refused to deliver it to the owner, the plaintiff. Moreover, the testimony of the defendant would warrant a finding that he delivered the earring to a person unauthorized to receive it by the owner, or by the person from

-conversion of diamond.

whom the defendant received it. An action of trover will lie upon either view of the facts. Devereux v. Barclay, 2 Barn. & Ald. 704, 106 Eng. Reprint, 521, 21 Re

vised Rep. 45; Claflin v. Boston & L. R. Co. 7 Allen, 341; Saxon Mills v. New York, N. H. & H. R. Co. 214 Mass. 391, 101 N. E. 1075, and cases cited.

At the close of the evidence the defendant requested the court to rule, "that, upon all the evidence, judgment must be directed for the defendant." In effect, this was a request to rule that the evidence was insufficient, in Trial-requested any legal form of instructiondeclaring, to justify


a finding for the plaintiff for any amount. Ideal Leather Goods Co. v. Eastern S. S. Corp. 220 Mass. 133, 107 N. E. 525; Brown v. Pelonsky, 210 Mass. 502, 506, 96 N. E. 1102. The request was refused rightly.

However, it is manifest that judgment should not be entered for $85, the value of both earrings, but should be in such

amount as, upon hearing, shall be de

Damages-for loss of diamond.

termined was the value of the single earring at the time it was converted. Loanes v. Gast, 216 Mass. 197, 199, 103 N. E. 473.

It follows that the order of the Appellate Division of the Municipal Court, of the city of Boston, "Report dismissed," must be affirmed. So ordered.


The reported case (RUBIN V. HUHN, ante, 1190) is useful as emphasizing the point, often lost sight of, that the conduct of a gratuitous bailee is, unlike that of a bailee for hire, not to be tested by the abstract standard of conduct of the hypothetical man of ordinary prudence, but by resorting to the specific inquiry whether he has taken the same care of the property intrusted to him as he himself would have taken had the property been his own. The question of the liability of gratuitous bailees is discussed in detail on a subsequent page, 1196.

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