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1. A bailee for the accommodation of the bailor is answerable only for his gross negligence or bad faith, the nature of the thing bailed measuring the care which he must exercise.

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

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CERTIORARI to the Court of Civil Appeals to review a judgment in plaintiffs' favor in an action brought to recover a certain amount and interest alleged to be due because of the failure of defendant, as bailee, to deposit in a bank checks and money intrusted to him by plaintiffs, for deposit to their credit. Reversed.

The facts are stated in the opinion Messrs. Templeton & Jennings for plaintiff in certiorari.

Messrs. Owens & Taylor for defendants in certiorari.

Williams, J., delivered the opinion of the court:

W. S. Ridenour and C. C. Ridenour, a firm doing a mercantile business, brought this suit to recover $400 and interest, alleged to be due them because of the failure of Woodward, as bailee, to deposit in the First National Bank of Jellico, checks and money intrusted to him for deposit to their credit.

Woodward was a traveling salesman in the employ of Hackney & Company, a wholesale grocery establishment doing business in Jellico, and on his trips through the trade territory he was accustomed to call on and make sales to the complainant firm, the store of which was located at a small railway station

of the court.

about 16 miles out from Jellico, which store was in charge of C. C. Ridenour.

Ridenour had from time to time, for a period of nine months preceding the incident that occasioned this litigation, sent money and checks by Woodward to Jellico, to be deposited to the firm's credit in bank. Woodward made his trips from Jellico to the complainants' store by the railroad. The train's schedule for the return trip called for arrival at Jellico at 7:20 at night, which was after banking hours. At the first, Woodward began taking the money of complainant so intrusted to him to his home in the suburbs of Jellico, about mile beyond the city limits and about mile beyond the district where the streets were lighted; and the next day take the same to the bank for deposit, or carry it to the establishment of Hackney & Com

(132 Tenn. 620, 179 S. W. 148.)

pany, his employers, and intrust it to the bookkeeper to be deposited in bank. Woodward was cautioned by this bookkeeper that there was danger of loss attending this method, and a change was made; Woodward taking the funds to some downtown store and depositing the same in an iron safe commonly used for the keeping of valuables. Several times he had used the safe of the Smith Drug Company for that purpose, and several times other safes. He testifies, without contradiction, that he had not uniformly delivered the money from the safe to the bank on the day next succeeding such lodgment, but that at times he delayed doing so for a day or two.

On the afternoon of July 22, 1912, which was Monday, C. C. Ridenour handed to Woodward for deposit the $400 in question, which was placed that night in the safe of Smith & Company. His business called him from Jellico on Tuesday morning before banking hours. He returned in due course of the business of his employers on Tuesday night after banking hours. On Wednesday morning he again went to the store of Smith & Company, without making inquiry as to the money, thence out of town on an early train for a short business trip, but returned to the city at 10:45, after the bank was opened, called at the drug store, and asked for the money that he had left there on Monday night, when, on search of the safe, it was discovered that the funds had disappeared. The testimony does not disclose what became of it, though it is found by both of the lower courts that it was not purloined by Woodward.

C. C. Ridenour informed Woodward at the time the funds were intrusted to him that he had drawn or was drawing checks on the bank against the same. Other facts are set out in the discussion which follows.

The court of civil appeals held that Woodward was liable to respond as for a conversion of the funds so lost. We have granted the writ of

certiorari in order to a review of that decree.

The rule is that a bailee for the accommodation of the bailor is only answerable for his gross negligence or bad faith, the Bailmentcare to be taken by gratuitoushim to be meas- care required. ured, however, with reference to the nature of the thing placed in his keeping. Whitemore v. Haroldson, 2 Lea, 312; Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 105 Am. St. Rep. 930, 79 S. W. 113, 2 Ann. Cas. 345, 15 Am. Neg. Rep. 719; Marshall v. Nashville R. & Light Co. 118 Tenn. 254, 9 L.R.A. (N.S.) 1246, 101 S. W. 419, 12 Ann. Cas. 675.

The court of appeals was of opinion that the holding in the case of Colyar v. Taylor, 1 Coldw. 372, 1 Am. Neg. Cas. 825, controls this case. In that case Taylor had received from a bank in Nashville money for Colyar, to be delivered gratuitously at Winchester. After receiving the money, he took it to the public fair grounds in the vicinity of Nashville, where he met one Estill, who was prevailed upon to take charge of and make the delivery of the money. The money was counted out in public view, within a few steps of the promiscuous crowd, before it was passed to Estill. Shortly after Estill got upon the train, not far distant from the fair grounds, and soon after taking his seat discovered that

his pocket had been picked. The ruling was that such parting of possession to Estill was a conversion, since it was unauthorized, and also that there was gross negligence shown by the circumstances.

Accordingly, the court of civil appeals held that the placing of the intrusted funds in an iron safe of another person was without authority, and constituted a conversion by Woodward.

It may be truly said that the earlier decisions go along rigid lines, and show but slight, if any, disposition of the courts to indulge in inferences in favor of the bailee.

Clearly, it is not every parting

with the possession by the bailee of

Troverconversion by bailee.

the thing bailed that will work a conversion; there may be a parting that is qualified and temporary, evincing no intention on the part of the bailee to exercise a dominion over the same inconsistent with the right of the owner, but consistent with a further or continued control as to the delivery designated to be made by the bailee. Spooner v. Manchester, 133 Mass. 270, 43 Am. Rep. 514; Fouldes v. Willoughby, 8 Mees. & W. 540, 151 Eng. Reprint, 1153, 1 Dowl. N. S. 86, 10 L. J. Exch. N. S. 364, 5 Jur. 534.

In Jenkins v. Bacon, 111 Mass. 373, 15 Am. Rep. 33, 1 Am. Neg. Cas. 781, where the conclusion was a hard ruling of liability on the part of the defendant bailee charged with a conversion, it was yet conceded that if "for suffi

cient reason it should become inconvenient or unsafe that she should retain the manual possession of the bond, he would undoubtedly be at liberty to deposit it in any other place or mode in which he might deposit his own property of the like description. But, as between the original depositor and himself, he would continue to be the lawful and responsible custodian, and bound to practise that degree of care which the law requires of gratuitous bailees."

The court of civil appeals erred in not taking note of and following the trend of the modern authorities, which is to break away from the stern rules which many of the courts of England and of this country were at one time disposed to apply to acts of a bailee claimed to be a deviation, and therefore to effect a conversion.

Mr. Freeman in his annotations of the case of De Tollenere v. Fuller, 12 Am. Dec. 616, 621, after citing with approval our case of McNeill v. Brooks, 1 Yerg. 73, said: "It is certainly a hard rule to hold that slight acts of misuser, by a bailee, of the thing bailed, are to be regarded as evidence of a permanent appropriation of the property

to his own use. Perhaps a more reasonable doctrine is that of the majority of the court in Harvey v. Epes, 12 Gratt. 153, etc."

Schouler, in his work on Bailments, remarks on this point that "the leaven of common sense, which keeps our law in constant ferment, is here at work, recalling the injustice of visiting blameworthy and blameless deviation with the same penalties of absolute or insurance accountability."

The same writer, contending for a reasonable construction of the contract or undertaking of bailment, said that the same ought not to be too literally construed against a bailee who may have found himself obliged to act while away from the bailor, and forced to act on his own judgment; and that "the good sense of the contract should interpret favorably, where restrictive use was not clearly specified." Schouler. Bailm. §§ 140, 141; Weller v. Camp, 169 Ala. 275, 28 L.R.A. (N.S.) 1106, 52 So. 929.

Particularly should this be true in cases of bailments for the accommo

dation of the bailor. The law should not be so technical and penalizing on the question of diversion or deviation as to discourage and check the doing of acts of accommodation by one person for another in the spirit of neighborly kindness.

In a case involving a claim of wrongful delivery to another person by a mandatory that amounted to a conversion (Christian v. First Nat. Bank, 84 C. C. A. 53, 155 Fed. 705), it was said by Van Devanter, C. J.: "As is said by Schouler, in his work on Bailments, 3d ed. §§ 58, 63, 'the courts are indisposed to extend by inference, the perils of an unprofitable trust,' and 'every bailee without reward ought to be given the least trouble consistent with his actual undertaking.' This is in keeping with the rule that, when a contract is fairly open to two constructions, it is legitimate to adopt the one which equity would favor."

This modern tendency was ex emplified in the holding of this court

(132 Tenn. 620, 179 S. W. 148.)

in the case of Cicalla. Rossi, 10 Heisk. 67. In that case money was the subject-matter of bailment for accommodation, the contract of which was evidenced by a written and signed memorandum as follows: "Received from Giovanni Rossi the sum of $550 for safe keeps until he call for it."

The bailee, Cicalla, instead of keeping the money in his immediate possession, deposited it in his own name in a bank in the city of Memphis that he considered safe, but which later failed. The court, on the question of a conversion on the part of the bailee by reason of his making such a deposit, said: "The material point of controversy, and the one upon which the case should turn, is whether or not the defendant, in depositing the money in bank in his own name, acted in accordance with the consent of the plaintiff, either expressly given or fairly to be implied from the circumstances and conversation had at the time."

Applying these principles to the facts of the pending case: We think it manifest that Woodward acted with a fairly commensurate discretion when he placed the money and

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quarrels with the very ground of liability of the bailee assumed by that court, that the mere act of parting with possession, without authority, to a third person for a consummation of the delivery, would constitute a conversion. Moreover, Woodward explains that the bookkeeper was more than ordinarily busy with his own duties, it being near the close of the month, when he was engrossed with his work as accountant.

Much stress is laid upon the fact that the funds were allowed to remain in the safe until up into the second day, especially in view of the fact that Ridenour had informed Woodward that he was drawing checks upon the deposit thus to be built up. If the fund was not one converted by the act of the placing of it in the safe of another, this later circumstance would seem to be one only to be looked to in ascertaining the degree of care taken by the bailee. Did he hold the funds so long as to reach to gross negligence on his part?

It seems to us that in fairness the bailors must be deemed to have known that Woodward's first duty, on the day succeeding the deposit in the safe, was to his own employers, and that his service for their accommodation must have been accepted with the tacit understanding that Woodward's time was not his own. Was it reasonable for them to demand or expect that Woodward should give over carrying out his employers' schedule, mapped out for him for Tuesday, in order that the deposit should reach the bank before Wednesday? We think not. Clear it is that a case of gross negligence is not made out.

The decree of the Court of Civil Appeals is reversed; decree here dismissing the bill of complaint at complainants' cost.


Duty and liability of gratuitous bailee or mandatary.

I. Introduction, 1196.

II. Liability for nonfeasance, 1196. III. Liability for misfeasance; degree of

care or skill required:

a. In general, 1197.

b. Instances of failure to exercise requisite care, 1216.

c. Instances in which requisite care has been held to have been exercised, 1218.

IV. Duty to return or account for property:

a. In general, 1224.

As to what amounts to delivery of, or assumption of control over, property essential to a bailment, see annotation in 1 A.L.R. 394.

I. Introduction.

According to the long-established system of classification borrowed from the civil law, gratuitous bailments are of two kinds; depositum, which is a delivery of personal property to the bailee for safe-keeping, and mandatum, which approaches very nearly to a gratuitous agency, the delivery of the property to the bailee being merely incidental to some service which is to be performed in respect thereto. Although both kinds of bailment are ostensibly governed by the same rules, and are usually treated as indistinguishable, a mandatary is apt to be held to a stricter degree of responsibility than a mere depositary, for reasons which will presently appear.

The duties of gratuitous bailees or mandataries may, for the purpose of this discussion, be divided into two classes: Duties of relative obligation, which are, the duty to exercise the degree of care in keeping the deposit, or the duty to exercise the degree of skill in executing the mandate, requisite to constitute a performance by the bailee of the terms, expressed or implied, of his undertaking; and duties of absolute obligation, which are, the duty to return or account for the subject of the bailment, to conform to and not to exceed the instructions of the bailor, and not to use the subject of the bailment for his own purposes.

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VII. Summary, 1228.

II. Liability for nonfeasance. One who has promised to care, without reward, for property subsequently to be intrusted to him, or to do some act without compensation, is not liable for a failure to enter upon the performance of his undertaking, such promise being, in the eye of the law, unsupported by any consideration. Melbourne v. Louisville & N. R. Co. (1889) 88 Ala. 443, 6 So. 762; Evan L. Reed Mfg. Co. v. Wurts (1914) 187 Ill. App. 378; Jenkins v. Bacon (1873) 111 Mass. 373, 15 Am. Rep. 33, 1 Am. Neg. Cas. 781; Rutgers v. Lucet (1800) 2 Johns. Cas. (N. Y.) 92; Thorne v. Deas (1809) 4 Johns (N. Y.) 84; Wilkinson v. Coverdale (1793) 1 Esp. (Eng.) 73; Johnston v. Graham (1863) 14 U. C. C. P. 9; Baxter v. Jones (1903) 6 Ont. L. Rep. 360; Young v. Atwood (1821) Newfoundl. Sel. Cas. 233.

Thus, one who undertakes, without reward, to procure insurance for another, is not liable for his omission to do so. Thorne v. Deas (1809) 4 Johns. (N. Y.) 84; Young v. Attwood (Newfoundl.) supra.

But while a mere agreement to undertake a trust in futuro, without compensation, is not obligatory, yet, when once undertaken and the trust actually entered upon, the bailee is bound to perform it according to the terms of his agreement. The confidence which is placed in him, and his undertaking to execute the trust, raise a sufficient consideration; a contrary doctrine would tend to injure and deceive his

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