(132 Tenn. 620, 179 S. W. 148.) Bailment gratuitous - care required.

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.] Trover conversion by bailee.

2. It is not every parting with pos- conversion or negligence, if, the bank session by a bailee of the thing bailed being closed on his arrival at the town, that will work a conversion.

he places it in a merchant's safe for [See 3 R. C. L. 116.]

safe-keeping and, because of his own Bailment — gratuitous liability for business engagements, does not call loss.

for it until the second day thereafter, 3. One who gratuitously accepts a

when it cannot be found, although he commission to take money to a town

was notified by the owner that checks and deposit it in bank is not liable had been drawn against it. for its loss, either on the ground of [See 3 R. C. L. 99.] 1

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 of the court.

Messrs. Templeton & Jennings for about 16 miles out from Jellico, plaintiff in certiorari.

which store was in charge of C. C. Messrs. Owens & Taylor for defend- Ridenour. ants in certiorari.

Ridenour had from time to time, Williams, J., delivered the opinion for a period of nine months precedof the court:

ing the incident that occasioned this W. S. Ridenour and C. C. Riden- litigation, sent money and checks by our, a firm doing a mercantile busi- Woodward to Jellico, to be deposited ness, brought this suit to recover to the firm's credit in bank. Wood$400 and interest, alleged to be due ward made his trips from Jellico to them because of the failure of Wood- the complainants' store by the rail. ward, as bailee, to deposit in the road. The train's schedule for the First National Bank of Jellico, return trip called for arrival at Jelchecks and money intrusted to him lico at 7:20 at night, which was for deposit to their credit.

after banking hours. At the first, Woodward was a traveling sales- Woodward began taking the money man in the employ of Hackney & of complainant so intrusted to him Company, a wholesale grocery estab- to his home in the suburbs of Jellico, lishment doing business in Jellico, about 1 mile beyond the city limits and on his trips through the trade and about 1 mile beyond the district territory he was accustomed to call where the streets were lighted; and on and make sales to the complain the next day take the same to the ant firm, the store of which was bank for deposit, or carry it to the located at a small railway station establishment of Hackney & Com

Bailment

(132 Tenn. 620, 179 8. W. 148.) pany, his employers, and intrust it certiorari in order to a review of to the bookkeeper to be deposited in that decree. bank. Woodward was cautioned by The rule is that a bailee for the this bookkeeper that there was accommodation of the bailor is only danger of loss attending this meth- answerable for his gross negligence od, and a change was made; Wood- or bad faith, the ward taking the funds to some care to be taken by gratuitousdowntown store and depositing the him

to be meas

care required. same in an iron safe commonly used ured, however, with reference to the for the keeping of valuables. Sev- nature of the thing placed in his eral times he had used the safe of keeping. Whitemore v. Haroldson, the Smith Drug Company for that 2 Lea, 312; Tulane Hotel Co. v. purpose, and several times other Holohan, 112 Tenn. 214, 105 Am. safes. He testifies, without contra- St. Rep. 930, 79 S. W. 113, 2 Ann. diction, that he had not uniformly Cas. 345, 15 Am. Neg. Rep. 719; delivered the money from the safe Marshall v. Nashville R. & Light Co. to the bank on the day next succeed- 118 Tenn. 254, 9 L.R.A.(N.S.) 1246, ing such lodgment, but that at times 101 S. W. 419, 12 Ann. Cas. 675. he delayed doing so for a day or two. The court of appeals was of opin

On the afternoon of July 22, 1912, ion that the holding in the case of which was Monday, C. C. Ridenour Colyar v. Taylor, 1 Coldw. 372,1 Am. handed to Woodward for deposit the Neg. Cas. 825, controls this case. In $400 in question, which was placed that case Taylor had received from that night in the safe of Smith & a bank in Nashville money for ColCompany. His business called him yar, to be delivered gratuitously at from Jellico on Tuesday morning be- Winchester. After receiving the fore banking hours. He returned

money, he took it to the public fair in due course of the business of his

grounds in the vicinity of Nashville, employers on Tuesday night after where he met one Estill, who was banking hours. On Wednesday prevailed upon to take charge of and morning he again went to the store make the delivery of the money. of Smith & Company, without mak

The money was counted out in pubing inquiry as to the money, thence lic view, within a few steps of the out of town on an early train for a

promiscuous crowd, before it was short business trip, but returned to

passed to Estill. Shortly after Esthe city at 10:45, after the bank

till got upon the train, not far diswas opened, called at the drug store,

tant from the fair grounds, and soon and asked for the money that he had left there on Monday night, when, his pocket had been picked. The

after taking his seat discovered that on search of the safe, it was dis

. covered that the funds had disap

ruling was that such parting of pospeared. The testimony does not

session to Estill was a conversion, disclose what became of it, though it since it was unauthorized, and also is found by both of the lower courts

that there was gross negligence that it was not purloined by Wood- shown by the circumstances. ward.

Accordingly, the court of civil apC. C. Ridenour informed Wood- peals held that the placing of the inward at the time the funds were in- trusted funds in an iron safe of antrusted to him that he had drawn or other person was without authority, was drawing checks on the bank and constituted a conversion by against the same. Other facts are

Woodward. set out in the discussion which fol- It may be truly said that the earlows.

lier decisions go along rigid lines, The court of civil appeals held

and show but slight, if any, disposithat Woodward was liable to respond tion of the courts to indulge in inas for a conversion of the funds so ferences in favor of the bailee. lost. We have granted the writ of Clearly, it is not every parting

Trover

bailee.

.

with the possession by the bailee of to his own use. Perhaps a more

the thing bailed that reasonable doctrine is that of the conversion by will work a conver- majority of the court in Harvey v.

sion; there may be a Epes, 12 Gratt. 153, etc." parting that is qualified and tempo- Schouler, in his work on Bailrary, evincing no intention on the ments, remarks on this point that part of the bailee to exercise a do- “the leaven of common sense, which minion over the same inconsistent keeps our law in constant ferment, with the right of the owner, but con- is here at work, recalling the injussistent with a further or continued tice of visiting blameworthy and control as to the delivery designated blameless deviation with the same to be made by the bailee. Spooner penalties of absolute or insurance v. Manchester, 133 Mass. 270, 43 accountability.” Am. Rep. 514; Fouldes v. Willough- The same writer, contending for by, 8 Mees. & W. 540, 151 Eng. Re- a reasonable construction of the print, 1153, 1 Dowl. N. S. 86, 10 L. contract or undertaking of bailment, J. Exch. N. S. 364, 5 Jur. 534. said that the same ought not to be

In Jenkins v. Bacon, 111 Mass. too literally construed against a 373, 15 Am. Rep. 33, 1 Am. Neg bailee who may have found himself Cas. 781, where the conclusion was obliged to act while away from the a hard ruling of liability on the part bailor, and forced to act on his own of the defendant bailee charged judgment; and that "the good sense with a conversion, it was yet con- of the contract should interpret ceded that if "for

suffi- favorably, where restrictive use was cient reason it should become incon- not clearly specified." Schouler, venient or unsafe that she should Bailm. $$ 140, 141; Weller v. Camp, retain the manual possession of the 169 Ala. 275, 28 L.R.A.(N.S.) 1106, bond, he would undoubtedly be at 52 So. 929. liberty to deposit it in any other Particularly should this be true in place or mode in which he

cases of bailments for the accommomight deposit his own property of dation of the bailor. The law the like description. But, as be- should not be so technical and penaltween the original depositor and izing on the question of diversion or himself, he would continue to be deviation as to discourage and check the lawful and responsible custo- the doing of acts of accommodation dian, and bound to practise that de- by one person for another in the gree of care which the law requires spirit of neighborly kindness. of gratuitous bailees.”

In a case involving a claim of The court of civil appeals erred in wrongful delivery to another person not taking note of and following the by a mandatory that amounted to a trend of the modern authorities, conversion (Christian v. First Nat. which is to break away from the Bank, 84 C. C. A. 53, 155 Fed. 705), stern rules which many of the courts

it was said by Van Devanter, C. J.: of England and of this country were “As is said by Schouler, in his work at one time disposed to apply to acts

on Bailments, 3d ed. $$ 58, 63, 'the of a bailee claimed to be a deviation, courts are indisposed to extend by and therefore to effect a conversion. inference, the perils of an unprofitaMr. Freeman in his annotations

ble trust,' and 'every bailee without of the case of De Tollenere v. Ful

reward ought to be given the least ler, 12 Am. Dec. 616, 621, after cit

trouble consistent with his actual ing with approval our case of Mc

undertaking.' This is in keeping Neill v. Brooks, 1 Yerg. 73, said:

with the rule that, when a contract "It is certainly a hard rule to hold

is fairly open to two constructions, that slight acts of misuser, by a it is legitimate to adopt the one bailee, of the thing bailed, are to be which equity would favor.” regarded as evidence of a perma- This modern tendency was exnent appropriation of the property emplified in the holding of this court built up.

(132 Tenn. 620, 179 8. W. 148.) in the case of Cicalla 5. Rossi, 10 quarrels with the very ground of Heisk. 67. In that case money was liability of the bailee assumed by the subject-matter of bailment for that court,--that the mere act of accommodation, the contract

contract of parting with possession, without auwhich was evidenced by a written thority, to a third person for a conand signed memorandum as follows: summation of the delivery, would "Received from Giovanni Rossi the constitute a conversion. Moreover, sum of $550 for safe keeps until he Woodward explains that the bookcall for it.”

keeper was more than ordinarily The bailee, Cicalla, instead of busy with his own duties, it being kecping the money in his immediate near the close of the month, when he possession, deposited it in his own was engrossed with his work as acname in a bank in the city of Mem- countant. phis that he considered safe, but Much stress is laid upon the fact which later failed. The court, on that the funds were allowed to rethe question of a conversion on the main in the safe until up into the part of the bailee by reason of his second day, especially in view of the making such a deposit, said: “The fact that Ridenour had informed material point of controversy, and Woodward that he was drawing the one upon which the case should checks upon the deposit thus to be turn, is whether or not the defend

If the fund was not one ant, in depositing the money in bank converted by the act of the placing in his own name, acted in accordance

of it in the safe of another, this later with the consent of the plaintiff, ei

circumstance would seem to be one ther expressly given or fairly to be

only to be looked to in ascertaining implied from the circumstances and

the degree of care taken by the conversation had at the time."

bailee. Did he hold the funds so Applying these principles to the long as to reach to gross negligence facts of the pending case: We think

on his part? it manifest that Woodward acted with a fairly commensurate discre

It seems to us that in fairness the tion when he placed the money and

bailors must be deemed to have checks of the bailors

known that Woodward's first duty, Bailmentgratuitousin the iron safe for

on the day succeeding the deposit in liability for

safe-keeping, and the safe, was to his own employers, that by fair infer

and that his service for their acence from all of the circumstances

commodation must have been ac that action was in the interest of the cepted with the tacit understanding bailors, and consented to by them. that Woodward's time was not his They, themselves, in similar circum- own. Was it reasonable for them to stances, had made like deposits in demand or expect that Woodward safes in Jellico overnight, which fact

should give over carrying out his was known to Woodward at the time employers' schedule, mapped out for of the lodgment here in question. him for Tuesday, in order that the Kirtland v. Montgomery, i Swan, deposit should reach the bank be452, 458.

fore Wednesday? We think not. The court of civil appeals was of

Clear it is that a case of gross negthe opinion that there was no excuse ligence is not made out. for Woodward not having the book

The decree of the Court of Civil keeper of Hackney & Company get Appeals is reversed; decree here the money on Tuesday morning, and dismissing the bill of complaint at deliver it to the bank. But this complainants' cost.

loss.

ANNOTATION.

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 prop-

erty:
a. In general, 1224.

IV.-continued.

b. Right of bailee to terminate bail

ment, 1225. c. Effect of delay in returning

property, 1225. V. Liability of bailee or mandatary who

has exceeded or disregarded his in

structions, 1225. VI. Liability of bailee who has used sub

ject of bailment for own purposes,

1228.
VII. Summary, 1228.

As to what amounts to delivery of, II. Liability for nonfeasance. or assumption of control over, prop- One who has promised to care, witherty essential to a bailment, see anno- out reward, for property subsequently tation in 1 A.L.R. 394.

to be intrusted to him, or to do some 1. Introduction.

act without compensation, is not lia

ble for a failure to enter upon the perAccording to the long-established

formance of his undertaking, such system of classification borrowed from

promise being, in the eye of the law, the civil law, gratuitous bailments are

unsupported by any consideration. of two kinds; depositum, which is a

Melbourne v. Louisville & N. R. Co. delivery of personal property to the

(1889) 88 Ala. 443, 6 So. 762; Evan bailee for safe-keeping, and manda

L. Reed Mfg. Co. v. Wurts (1914) 187 tum, which approaches very nearly to

Ill. App. 378; Jenkins v. Bacon (1873) a gratuitous agency, the delivery of

111 Mass. 373, 15 Am. Rep. 33, 1 Am. the property to the bailee being mere

Neg. Cas. 781; Rutgers v. Lucet (1800) ly incidental to some service which is

2 Johns. Cas. (N. Y.) 92; Thorne v. to be performed in respect thereto.

Deas (1809) 4 Johns (N. Y.) 84; WilAlthough both kinds of bailment are

kinson v. Coverdale (1793) 1 Esp. ostensibly governed by the same rules,

(Eng.) 73;
73; Johnston

V. Graham and are usually treated as indistin

(1863) 14 U. C. C. P. 9; Baxter v. guishable, a mandatary is apt to be

Jones (1903) 6 Ont. L. Rep. 360; held to a stricter degree of responsi- Young v. Atwood (1821) Newfoundl. bility than a mere depositary, for rea

Sel. Cas. 233. sons which will presently appear.

Thus, one who undertakes, without The duties of gratuitous bailees or

reward, to procure insurance for anmandataries may, for the purpose of

other, is not liable for his omission to this discussion, be divided into two

do so. Thorne v. Deas (1809) 4 Johns. classes: Duties of relative obligation,

(N. Y.) 84; Young v. Attwood (Newwhich are, the duty to exercise the de

foundl.) supra. gree of care in keeping the deposit, or

But while a mere agreement to unthe duty to exercise the degree of skill

dertake a trust in futuro, without comin executing the mandate, requisite to

pensation, is not obligatory, yet, when constitute a performance by the bailee of the terms, expressed or implied, of

once undertaken and the trust actualhis undertaking; and duties of ab

ly entered upon, the bailee is bound to solute obligation, which are, the duty perform it according to the terms of to return or account for the subject his agreement. The confidence which of the bailment, to conform to and not

is placed in him, and his undertaking to exceed the instructions of the bail- to execute the trust, raise a sufficient or, and not to use the subject of the consideration; a contrary doctrine bailment for his own purposes.

would tend to injure and deceive his