tainly create a trust which would call for a high degree of prudence and good sense in its execution; the mandatary would probably be held bound by the rule applicable to an ordinary trustee.' The nature and value of the deposit and the circumstances attending the bailment, naturally fix the attention of the bailee, and as naturally indicate the precautions to be taken for the safety of the property. A soldier in camp receiving money from his friend for safe keeping, will spontaneously keep and carry it with a care to prevent its being lost or stolen; the bailee will do the same thing passing through the crowded streets of a city; or in any casual crowd, so apt to be infested and plundered by well dressed thieves. Now the law requires from the bailen just these natural precautions, dictated by the situation and circumstances of the bailment and in applying the established rule of liability, it is the province of the Court in each case to remark upon and give due weight to the circumstances of time, place and danger attending the loss." The reason of the situation materially affects the rule of law; it gives rise to the rule, and it presides over its enforcement. : § 45. The depositary must act with perfect fairness, dealing with his friend's goods as he does with his own. Ordinarily this is the true measure of his duty. The owner deposits a box containing gold and negotiable securities in a bank, locked in the usual manner, and the bank places it in its vault where it keeps its own coin and securities, without 1 King v. Talbot, 50 Barb., 453, 482; S. C., 40 N. Y., 76, 86. A trustee must invest on bond and mortgage or in government funds. 2 Spooner v. Mattoon, 40 Verm. R., 300. 3 The Rendsberg, 6 Rob., 141, 155. 4 Graves v. Ticknor, 6 N. H., 537; Nelson v. McIntosh, 1 Starkie N. P., 188. 6 Whitney and wife v. Lee, 8 Metcalf, 91. A promissory note was delivered to a bailee "to secure and take care of it;" held without explanation that this was a bailment merely for safe keeping, and that the bailee was liable only for fraud or gross negligence. Ch. J. Shaw: "The law has endeavored to make a distinction in the degrees of care and diligence to which different bailees are bound: distinguishing between gross negligence, ordinary negligence, and slight negligence: though it is often difficult to mark the line where the one ends and the other begins. And it must be often left to the jury, upon the nature of the subject matter and the particular circumstances of each case, with suitable remarks by the judge, to say whether the particular case is within the one or the other. Subject to these remarks upon the application of these distinctions, we think it well settled, that a bailee for safe keeping, without reward, is not responsible for the article deposited, without proof that the loss was occasioned by bad faith or gross negligence. This rule was settled on great consideration, and after full deliberation, in Foster v. Essex Bank, 17 Mass., 479," compensation; here we have a naked bailment, and the bailee is not liable for a loss by theft or by the fraud of its agents or servants; it is not liable because it has exercised the same care of the parcel received on deposit as it took of its own property of the same kind.' The depositor understands beforehand the circumstances of danger and safety which invest the vaults of the bank; and he cannot reasonably demand any new precautions for the safety of his property.2 Good faith § 46. The rule cannot be stated with much precision. requires of the depositary that he shall take the same care of the goods which he receives on deposit, as he does of his own; and the law exacts from him at least this measure of diligence. At the same time, it cannot be affirmed that this is the limit of his liability; because he is answerable for a loss that happens through his gross neglect, and he cannot excuse himself by showing that he has been equally negligent in the care of his own property.3 § 47. It has been argued that gross negligence by the bailee in the care of goods, is evidence of fraud, and equivalent to it in its effect upon the contract. If by this we are to understand that the bailee is liable for the goods lost or destroyed through either his bad faith or gross negligence, the proposition must be accepted as good law: but if we are to understand by it that gross neglect is the same thing as a violation of good faith, the doctrine cannot be maintained. In a moral sense 1 Foster v. Essex Bank, 17 Mass., 479; Smith v. First National Bank of Westfield, 99 Mass., 605; U. S. bonds were enclosed in an envelope and deposited with the bank in its vault in the usual way for safe keeping; not being restored on demand, held that defendant was liable only for want of ordinary care, or for gross negligence: liable for the negligence of its officers or servants, but not liable for their theft. Maury and Osborn v. Coyle, 34 Md., 235, 247; Lancaster Co. National Bank v. Smith, 62 Pa. St., 47. 2 Our safety deposit companies are organized for the purpose of insuring to the owner a greater degree of safety. The rule of law is held the same in several States: Griffith v. Zipperwick, 28 Ohio St.,; Scott v. Bank of Cherry Valley, 72 Penn. St., 471, 478; First National Bk. of C. v. Graham, 79 Penn. St., 106; 19 Amer. R., 122, 181. The act of receiving such security for safe keeping, can hardly be considered unauthorized when it is done habitually, with the privity and knowledge of the directors and officers of the bank; First Nat. Bank of C. v. Graham, 4 W. N. Cas., 205. The right to make the contract and the rule of liability are fully discussed in First National Bank v. Ocean Nat Bank, 60 N. Y., 278, where the recent authorities are cited; and Wiley v. First Nat. Bank, Vt. 3 Tracy v. Wood, 3 Mason, 132; Doorman v. Jenkins, 2 Adol. & Ellis, 256; Rooth v. Wilson, 1 Barn. & Ald., 59; Rivara v. Ghio, 3 E. D. Smith, 264; Murray v. Clarke, 2 Daly, 102. gross negligence by the bailee bears a near resemblance to bad faith, because his express or implied engagement binds him to a faithful keeping of the property; he has assumed an active duty, he is bound to take care of the property. And a failure to do so, evinces a want of good faith, or faithfulness in the discharge of duty.' Under the Roman or civil law gross neglect was treated as equivalent to fraud; but the common law, under which different branches of the same tribunal pass, one upon the principle, and the other upon the conclusions of fact to be drawn from the evidence in the case, does not pronounce absolutely upon a question which must be solved by inferences. It does not assume to declare what shall be taken as conclusive evidence of fraud; in other words, it does not undertake to anticipate and provide against fraud by any specific form of proof. It assumes rather that the fertility of human invention is too great, and the fraudulent devices and schemes of men too complex, to be classified; it therefore leaves the question of fraud to be solved in each case as one of fact.3 § 48. It was at one time held that the delivery of goods to be safely kept, does not create any greater liability than a simple deposit without any stipulation; on the authority of Lord Coke that to keep and to keep safely, are one and the same thing. The modern doctrine does not support the rule; it allows the bailee to lessen or enlarge his liability by contract. In a common carrier's contract, a stipulation to carry and deliver "safely and securely" does not enlarge his liability;5 in a depositary's contract the engagement to keep safely increases his obligation, though it can hardly be held to bind him absolutely for the safety of the goods. It binds him according to its terms, giving to these a fair and reasonable interpretation." The implied contract for the safe keeping of the goods by the depositary, does not render him liable for a loss of them by fire, theft or rob 1 Jones on Bailm., 46 and 120; 17 Mass., 479. 2 Tudor v. Lewis, 3 Met. Ky., 378. Chesterfield v. Jansen, 2 Ves., Sen., 155; Mortlock v. Buller, 10 Ves., 306; Fraud is of the nature of crime, and must be affirmatively proved. Ward v. Center, 3 John. R., 271, 281. Fraud is not treated exactly the same in equity as at common law. Willard's Eq., 145, 147. 4 Coggs v. Bernard, 2 Ld. Raym., 909.-915; Alexander v. Greene, 3 Hill, 9 S. C. 7 Hill, 533; 11 N. Y., 485, 491. 5 Austin v. Manchester & C. Railway, 5 Eng. Law & Eq., 329; Collett v. The London & N. Railway Co., 6 Eng. L. & Eq., 305; Shaw v. York & N. M. Railway Co., 13 Q. B., 347; Ross v. Hill, 2 Man. G. & Scott, 877. 62 Bl. Comm., 452; Ames v. Belden, 17 Barb., 513; Hyland v. Paul, 33 Barb., 241. bery, unless he has exposed them to such loss by his gross negligence.1 Even a bailee for hire is not liable for losses of this nature; he does not assume the risk of the misconduct or tortious acts of third parties.2 Hence the owner and not the bailee bears the risk of loss from such extraneous causes. § 49. Where a sealed package containing securities or a box containing valuables, and locked, is delivered to a depositary to keep without any information as to their contents, it is his duty to preserve them with reasonable care; such care as prudent men usually take of property locked or sealed up in that way. He would not be required to assume that the package contained bank bills or negotiable notes, or that the box contained jewels, nor to keep the articles with the care with which he would guard that kind of property. He would have a right to assume that the box or package contained no greater value than is ordinarily enclosed in that manner; because no bailce can be drawn by artifice into a responsibility, greater than he intended to assume.3 § 50. The situation and circumstances may be shown as bearing upon the depositary's liability: can his individual character also be made the subject of judicial investigation? The manner in which his liability is usually stated, assumes that it is material. Kent says, "such a bailee who receives goods to keep gratis, is under the least responsibility of any species of trustee. If he keep the goods as he keeps his own, though he keeps his own negligently, he is not answerable for them; for the keeping of them as he keeps his own is an argument of his honesty." Again 1 Hyland v. Paul, 33 Barb., 241; Southcote's case, 4 Co. Rep., 83, 84; Bonoin's case, Fitz. Albridge. Detinue, 59; Coggs v. Bernard, supra; Foster v. Essex Bank, supra; Finacue v. Small, 1 Esp. N. P., 315; Schmidt v. Blood, 9 Wend., 258; Monteith v. Bissell, Wright, 411. 2 Ewing v. French, 1 Blackford's (Ind.) R., 353; Norton v. Woodruff, 2 N. Y., 153. Under an express contract to keep safely, the bailee could hardly be bound to insure the owner against such casualties. See Worth v. Edmonds, 52 Barb., 40; but he might be liable for loss by negligence; Webb v. R. W. & O. R. R. Co., 49 N. Y., 420; and has the right to incur the necessary expenses to insure the safety of the property; Harter v. Blanchard, 64 Barb., 617. 3 Bonoin's case, Fitz. Abr. Detinue, 59; Part IV. Coke R., 83 b, 84 a. A common carrier cannot be entrapped by the artifice of packing, into liability for very valuable articles under the guise of coarse and inexpensive goods. Warner v. Western T. Co., 5 Robt., 400; Orange Co. Bank v. Brown, 9 Wend., 85, 116. In one sense the depositor of the box of securities does not intrust the securities with the depositary; delivered to a banker they do not become subject to his lien; Brandao v. Barrett, 12 Clark & Finnelly, 787. • Knowles v. Atlantic & St. L. R. R., 38 Maine, 55; Barry v. Marix, 16 La. Ann. R., 248. he says, "if the depositary be an intelligent, sharp, careful man in respect to his own affairs, and the thing entrusted to him be lost by a slight neglect on his part, the better opinion would seem to be that he is then responsible." And Lord Holt is still more emphatic: "If the bailee be an idle, careless, drunken fellow, and comes home drunk, and leaves all his doors open by reason whereof the goods deposited are stolen, together with his own, he shall not be charged, because it is the bailor's own folly to trust such an idle fellow.1 So far as the character and habits of the depositary are developed in the transaction, it is well nigh impossible to ignore them; and yet it seems quite clear that the depositary, sued for damages resulting from his gross negligence, would not be allowed to prove as an independent fact that he is habitually a very careless and improvident man, for the purpose of reducing the measure of his liability. For in truth this measure has no reference to his individual character; it looks rather to the general conduct and character of a whole class of persons; it is not so flexible that it can be adjusted to the infirmities of an individual.2 The depositary's mode and means of keeping or storing like goods may be fairly considered, if known to the bailor at the time of the delivery; and where he knows the place and the manner in which his goods are to be kept, the law may fairly presume his assent in advance that his goods shall be thus treated. Evidence of this kind would be admissible to show either a contract for the keeping of the goods in that manner, or a waiver of any greater degree of diligence in their safe keeping.3 § 51. It is laid down as the rule of the civil law that the depositary is bound for a higher degree of diligence where he offers of his own accord to assume the custody of goods; the reason assigned for the rule being, that he thereby possibly prevents them from being placed in more secure hands. Under the Code of Louisiana the usual rule of liability is rigorously enforced, where the deposit is made at the request of the depositary. Assuming that he acts in good faith, why should his previous offer of service be construed to his disadvantage? A civil motive, an expression of good will, is hardly sufficient to strengthen or intensify a rule of law. On a sudden emergency demanding prompt action, as in the presence of a riot or fire, an offer to receive your neighbor's goods should hardly be discouraged by a rule of law. 12 Kent's Comm., 561, 564. Conway Bank v. Amer. Ex. Co., 8 Allen, 512; Morse v. Crawford, 17 Vt., 499; Swann v. Brown, 6 Jones Law N. C., 150. * Knowles v. Atlantic & St. L. R. R., 38 Maine, 55; and 8 Allen, 512. • Code of Louisiana, Art. 2908, 2909. |