Stewart v. Head , 70 Ga. 449 ( 1883 )

Jackson, Chief Justice.'

This suit was brought for the recovery of the contents of a valise left by the plaintiff at the hotel of the defendant, and from which those contents had been taken. The jury found for the plaintiff, and error is assigned and insisted on here, on the denial of the grant of a new trial.

The error insisted upon is the following charge of the court: “ If you believe from the evidence that plaintiff left his valise in the office of the hotel, without calling attention to the fact that he had so left it, and the clerk, without knowing who the owner of the valise was, took it and deposited it in a room where baggage was kept, then defendant is liable as a naked depositary, and would be bound to ordinary care; and if, under the circumstances, the valise was broken open and the contents lost, you would be authorized to find defendant guilty of ordinary neglect.”

It is urged that this charge is error, for two reasons: first, that it does not lay down the law correctly in respect to the neglect which, under the circumstances put by the court, would make the defendants liable; and secondly, because it took the question of negligence from the jury and determined it for them.

1. The Code, §2103, declares that “ when chattels are delivered by one person to another to keep for the use of the bailor, it is called a deposit; the depositary may undertake to keep it without reward, or gratuitously; it is then a naked deposit. If he receives or expects a reward or hire, he is then a depositary for hire; very variant consequences follow the difference in the contract.” The next section, 2104, declares: “A person may voluntarily undertake to be a depositary, or he may become so involuntarily, as by finding; if a naked depositary, he is responsible only for gross negligence.”

The hypothetical case put by the court, which was justified by the testimony of the clerk, made a case of a naked depositary under §2104 of the Code, and rendered the defendants liable only for gross negligence, by the same section. Ordinary neglect is not gross negligence. It is the absence of that care which prudent men take of their own property. Code, §2061. So that the court erred in putting the liability of defendants, under those facts on which the charge was based, upon ordinary neglect. Code, §2063, declares that gross neglect is the want of that care which one of common sense, however inattentive to business, takes of his property.

2. Again, we think that the court approached very closely, if it did not actually invade, the right of the jury to determine the question of negligence in this charge. It is true that the language is “ you would be authorized to find defendant guilty of ordinary neglect;” but the effect of those words is about the same as to tell the jury that the law, under these facts as stated by the court, makes a case of ordinary neglect. 51 Ga., 583.

3. But if the facts required the verdict, then these errors would not work the grant of a new trial. 51 Ga., 583.

Do they require it? By the plaintiff’s evidence they do require it; for he swears that he had a check for the baggage, and gave the baggage to the clerk, having been a guest and not paying his bill, but leaving with a promise to return to pay it; and inferentially leaving the baggage, with the landlord’s lien thereon. If such be the truth, he ought to recover.

But if the clerk’s statement be the truth, that he did not so leave it at all; that it was not locked, and therefore not broken open; that the plaintiff himself told him that it was not; that he did not know such a valise was left at all; then the landlord, having found the valise so left, and not knowing whose it was, and having put it unlocked in the baggage room, would be a mere naked depositary and would be liable only for gross negligence; and the question of whether or not these facts made gross negligence, should have been left to the jury.

We do not mean to say that they necessarily made such gross negligence, or did not, if the clerk’s version be correct; but we think that this issue should have been fairly left for the j ury to settle, under the repeated rulings of this court on the matter of their right to try what facts make negligence, ordinary, slight or gross.

Of course, as argued by the counsel for defendant in error, the presumption is that the court charged the law on all other issues correctly; but the presumption also is that the charge contained nothing at variance with that excepted to, unless so stated.

Expressing no opinion on the merits of the case, we send it back for error in the charge complained of, and therefore award a new trial.

Judgment reversed.