§ 832. A bailment is a delivery of a chattel, in trust for a specific purpose.1 Bailments are of three kinds: 1st. Deposits and Mandates, in which the trust is for the benefit of the bailor, or of a third person. 2d. Gratuitous Loans for use, in which the trust is exclusively for the benefit of the bailee. 3d. Pledges or Pawns; and Hiring and Letting to Hire, where the trust is for the benefit of both parties. In the first kind of bailment, where the bailment is for the sole benefit of the bailor, or third person, the law requires only slight diligence on the part of the bailee, and makes him answerable only for gross neglect. In the second kind, where the bailment is for the sole benefit of the bailee, he is bound to use great diligence, and is responsible for slight neglect. In the third kind, where the bailment is reciprocally beneficial, the bailee is only bound to exert ordinary diligence, and is only responsible for ordinary neglect. The measure of great diligence is that which very prudent persons take in regard to their own concerns; the measure of slight diligence is that which careless and inattentive persons give to their own concerns; and the measure of ordinary diligence is that which a man of an average share of prudence bestows upon his concerns. What constitutes diligence in a particular case will also depend upon the nature and value of the bailment; for a man would not, in the exercise of proper diligence, give as much care to the preservation of a bag of meal as of a bag of gold. So,' also, it depends upon the customs of trade, and the course of business; as, if it be customary, in a particular trade, to leave coals exposed upon a wharf, without guard, during the night, and coals are so left and stolen, the wharfinger might not be responsible for their loss, though he would be, unless there were such a usage.
1 For the various definitions of the term "bailment," see Story on Bailments, § 2, and notes.
§ 833. But this division of negligence into different grades, which had its supposed1 foundation in the Roman law, and was thence imported into the English law, has been the subject of considerable criticism in the later cases. Baron Rolfe, on a recent occasion, has stated that he can see no difference between negligence and gross negligence, the one being the same as the other with the addition of a vituperative adjective.2 And Lord Denman, upon another occasion, said: "It may well be doubted whether between gross negligence and negligence merely any intelligible distinction exists.3
1 That the notion of the three degrees of negligence arose from a misconception of the Roman law is established beyond question. See Goudsmit on Roman Law, pp. 212-21G; Story on Agency, § 184, note (Green's ed.).
2 Wilson v. Brett, 11 M. & W. 113.
3 Hinton v. Dibbin, 2 Q. B. 650. See also the Steamboat New World v. King, 16 How. 474. In this case Mr. Justice Curtis said: " The theory that there are three degrees of negligence, described by the terms slight, ordinary, and gross, has been introduced into the common law from some of the commentators on the Roman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. In Storer v. Gowen, 18 Me. 177, the Supreme Court of Maine say: 'How much care will, in a given case, relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending on a great variety of circumstances which the law cannot exactly define..' Mr. Justice Story (Bailments, § 11) says: 'Indeed, what is common or ordinary diligence is more a matter of fact than of law.' If the law furnishes no definition of the terms gross negligence, or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned.
"Recently the judges of several courts have expressed their disapprobation of these attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them. Wilson v. Brett, 11 M. & W. 113; Wyld v. Pickford, 8 ib. 443, 461, 462; Hinton v. Dibbin, 2 Q. B. 646, 651. It must be confessed that the difficulty in imputation of gross negligence by omitting to do what no man paying any heed to his acts would have left undone. Another example may be put. A money-changer who should leave his shop unlocked and unattended in order to do a short errand in the daytime, might fairly be said to be negligent and careless; but is there no clear distinction between negligence such as this and that gross negligence of which he would be guilty, if he should leave his shop open and unattended all night, with all his money lying on the counter ? Is it not quite as easy to perceive the distinction in such a case as it would be in case of an assault, to determine whether it were an aggravated assault or merely a simple assault ? Might it not be said with equal justice in both cases, that "one is the same as the other, with the addition of a vituperative adjective ?" 1
There certainly are cases where it is difficult to say whether the conduct of a person comes within the head of negligence or gross negligence; but there are certainly many other cases where no such difficulty could arise, and the distinction between the two classes seems to be quite clear and intelligible. If the mere difficulty of arranging the facts of a particular case under the one class or the other make the distinction between them too fine to be practicable, does not the same objection exist to the classifications of murder and manslaughter, or assault and aggravated assault, or fraudulent and non-fraudulent representations and concealments ? Yet it has never been supposed that these distinctions were impracticable, merely because of the difficulty of deciding whether the facts of a particular case were within the one or the other of these classes. Suppose, for example, a person intrusted with a packet of bank-notes, or a valuable casket of jewels, should leave it in an unlocked trunk in his chamber at a hotel, and should also omit to lock the chamber door, he might fairly be said to be guilty of negligence, or of what is its correlative, want of strict diligence. But suppose he should leave the package or casket on the table in a public sitting-room of the hotel all night, could there be any doubt that he would be guilty of a far higher degree of negligence - in a word, of gross negligence ?1 And is there no practical distinction between these two cases ? A man may be said to be negligent when he omits to do what all agree that a careful and prudent man would have done under the same circumstances. But he may go much further than this, and render himself liable to the defining gross negligence, which is apparent in perusing such cases as Tracy et al. v. Wood, 3 Mason, 132, and Foster v. The Essex Bank, 17 Mass. 479, would alone be sufficient to justify these complaints. It may be added that some of the ablest commentators on the Roman law, and on the civil code of France, have wholly repudiated this theory of three degrees of diligence, as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and difficulties. See Toullier's Droit Civil, vol. vi. p. 239, etc.; vol. xi. p. 203, etc. Mackeldey, Man. Du Droit Romain, 191, etc." Austin v. Manchester Railway, 7 Railw. Cas. 300; 10 C. B. 454; 11 Eng. Law & Eq. 513. See also Cashill v. Wright, 6 El. & B. 897; Beal v. South Devon Railway Co., 5H.& N. 875, affirmed in 8 H. & C. 337; Grill v. General Iron Screw Co., Law R. 1 C. P. 612; Giblin v. McMullen, Law R. 2 P. C. 328; Briggs v. Taylor, 28 Vt. 185. 1 See Armistead v. Wilde, 17 Q. B. 261; 6 Eng. Law & Eq. 349.