1 1 Dane, Abr. ch. 77, art. 2; 2 Kent, Comm. 560, 4th ed.; Lafarge v. Morgan, 11 Martin, 462; Foster v. Essex Bank, 17 Mass. 500; Edson v. Weston, 7 Cow. 278; Doorman v. Jenkins, 2 Ad. & El. 256; Story on Bailm. § 11, 23, 62, 63, et seq., 337; Jones on Bailm. 31, 32, 46, 47, 82, 83, 122, 123; Mytton v. Cock, 2 Str. 1099; Coggs v. Bernard, 2 Ld. Raym. 909, 914; Tompkins v. Saltmarsh, 14 S. & R. 275.
2 Foster v. Essex Bank, 17 Mass. 479; Story on Bailm. § 55, 60; Leth-bridge v. Phillips, 2 Stark. 544.
3 Noy, Max. ch. 43; Doct. & Stu. Dial. 2, ch. 38; Isaack v. Clark, 2 Bulst. 312; Domat, Lib. 2, tit. 9, § 2, No. 2.
4 Nicholson v. Chapman, 2 H. Bl. 258.
5 Robinson v. Ward, Ry. & Mood. 276; Wren v. Kirton, 11 Ves. 377; Rocke v. Hart, 11 Ves. 61; Massey v. Banner, 4 Madd. 418; 8. c. 1 Jac. & W. 241; post, Loan for Use.
§ 841. We have already seen that a depositary is liable for gross negligence only.2 The question, what is gross negligence, is generally a matter of fact for the jury, and not a question of law for the court.8 It is varied by the nature and value of the bailment, the particular circumstances of each case, and often by the relation of the parties to each other. But, although a depositary is only bound to use slight diligence, he is nevertheless bound to take reasonable care of the bailment. If he take the same care of the goods deposited as his own, it will create a presumption in his favor; but this presumption is not conclusive. If his negligence with regard to his own concerns be gross, the mere fact that he has kept the deposit in the same place, or with the same care, as his own property, will not exempt him from liability. Gross negligence at the common law is wholly distinct from fraud, and may have been committed with perfectly honest intentions;4 but, at the civil law, gross negligence and fraud are considered as nearly equivalent to each other.5 Good faith, however, is no defence to a depositary, if he have been guilty of gross negligence. Thus, where a painted cartoon was deposited, and was kept so near a damp wall, next a stable, that it peeled; it was held, that the bailee was liable for gross negligence.6 So, where a bailee put his own money, and money deposited, in the same cash-box, in his tap-room, and all was stolen; it was held to be gross negligence.1 So, also, on a deposit of money to be kept without recompense, if the bailee attempt, without authority, to transmit the money to the bailor, at a distant point, by mail or private conveyance, he renders himself liable in case the money is lost.2
1 Ibid.: Foley v. Hill, 2 H. L. Cas. 28.
2 Ante, § 832; Lancaster Bank v. Smith, 62 Penn. St. 47 (1869). See also Green v. Hollingsworth, 5 Dana, 173; Bakewell v. Talbot, 4 Dana, 216; Chase v. Maberry, 3 Harring. 266.
3 See Doorman v. Jenkins, 2 Ad. & El. 256; Giblin v. McMullen, Law R. 2 P. C. 339.
4 "Gross negligence may be evidence of mala fides, but is not the same thing.11 Lord Denman, C. J., in Goodman v. Harvey, 4 Ad. & El. 870, 876.
5 Dig. Lib. 16, tit. 3, 1. 32; Dig. Lib. 50, tit. 17, 1. 23; Dig. Lib. 13, tit. 6,,1. 5, § 2; Inst. Lib. 3, tit. 15; 3 Pothier, Pand. Lib. 16, tit. 3, n. 25; 1 Domat, B. 1, tit. 7, § 5, art 20; Story on Bailm. § 65, 66
6 Mytton v. Cock, 2 Str. 1099.
§ 842. But if a depositary have not been guilty of gross negligence, he will not be responsible for any accident which occurs; for his contract is to keep the bailment, and not to keep it safely. If, therefore, there be any losses by theft, or fire, he will not be responsible, unless the theft or fire were occasioned by his own gross negligence.3
§ 843. The contract of a depositary may, however, be narrowed or enlarged by special agreement; as, if the depositor designate the place in which the bailment shall be kept, the depositary will not be responsible, although the place be actually unsafe, and the goods be thereby lost. But, in case of loss, he who would avail himself of the benefit of such a special contract, must establish it by suitable proof, either directly or from collateral circumstances.4
§ 844. A depositary is always responsible when he has not exercised proper diligence. But he is only bound to exercise a diligence proportioned to his knowledge. And if articles be deposited in his hands, of the value of which he is ignorant, he need only exercise slight diligence; while, if the articles deposited be known by him to be valuable, he would be bound to a diligence proportioned to their value. But if the value of the goods be studiously concealed from the depositary, in order to induce him to receive the bailment when he would not otherwise have undertaken to keep it, - as if jewels be given him in a box or casket, - it will be deemed to be a fraud upon him, and he will only be responsible for the apparent and ostensible value of the goods; that is, in the illustration, of the mere box or casket, without its contents.1 The same degree of diligence is required of the bailee in respect of a necessary or an accidental bailment. So, also, if a person find an article, he is bound to take reasonable care of it.2
1 Doorman v. Jenkins, 2 Ad. & El. 256; s. c. 4 Nev. & Man. 170. Mr. Justice Taunton in that ease said: "What care does he [the defendant] exercise? He puts it [the money] together with money of his own, which I think perfectly immaterial, into the till of a public-house." See also Story on Bailm. § 64, 64 a, 67; Tracy v. Wood, 3 Mason, 132; Clarke v. Earn-shaw, Gow, 30; Pothier, Traité de Dépôt, n. 23 to 29; 2 Kent, Comm. 564; Rooth v. Wilson, 1 B. & Al. 59; The William, 6 Rob. Adm. 316; Wilson v.. Brett, 11 M. & W. 113; Smith v. First Nat. Bank, 99 Mass. 605.
2 Stewart v. Frazier, 5 Ala. 114.
3 Coggs v. Bernard, 2 Ld. Raym. 909; The King v. Hertford, 2 Show 172; Bro. Abr. Bailment, 7; 1 Dane, Abr. ch. 17, art. 7; Story on Bailm. § 72-74, 190; Nelson v. Macintosh, 1 Stark. 238; Mein v. West,. T. U. P. Charlt. 170; Montieth v. Bissell, Wright, 411.