Hale v. Rawallie , 8 Kan. 136 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

] Diligence gratuitoifs ’ Mees. The transaction between the parties amounted to a bailment^ one of that species known as a deposit which is defined to be “ a naked bailment of goods to be kept for the bailor without reward, and to be returned when he shall require it.” The bailment was for the benefit of the bailor. Under these circumstances what obligations as to care and diligence rested upon the bailees, and what amount of negligence would cast the responsibility for loss upon them? Writers divide both negligence and diligence into three degrees, and assign the obligations of the different kinds of bailees to these several degrees. Mi’. Justice YAnsNTraE, in giving the opinion of this court in the case of The U. P. Rly. Co. v. Rollins, 5 Kas., 180, 188, states these different degrees, and the rule' of assignment clearly and succinctly. “Common or ordinary diligence is that degree of diligence which, men in general exercise in respect to their own concerns; high or great diligence is of course extraordinary diligence, or that which very prudent persons take of their own concerns; and low or slight diligence is that which persons of less than common prudence, or indeed of any prudence at all, take of their own concerns. Ordinary negligence is the want of ordinary diligence; slight or less than ordinary negligence is the want of great diligence; and gross or more than ordinary negligence is the want of slight diligence.” “ It is the miiversal law of bailments that where the bailment is for the benefit of both parties, the bailee is required to exercise ordinary care, and is liable for ordinary negligence. Where the bailment is for the benefit of the bailee alone, he is required to exercise great care, and is liable for slight negligence. Rut where the bailment is for the benefit of the bailor alone, the bailee is required to exercise -slight care only, and is liable for gross negligence only.”

It is evident from this that plaintiffs in error, in accepting the bailment of the package of money, contracted only to use slight care in its keeping, and-to become responsible only for gross negligence. The learned judge who tried this case seems to have supposed that a failure to exercise ordinary care amounts to gross negligence, and so his statement 'of the obligations of the bailees is partially wrong. In one place he charges the jury that the bailee is liable for gross negligence only. This is correct. But elsewhere, having first instructed the jury that this was a deposit, he uses this language:

“ The law presumes that the depositary undertakes to keep the deposit in the manner and with the degree of care and diligence usually bestowed on property of the same character by individuals of common sense and prudence engaged in the same kind of business. The bailee of a naked deposit is bound to use reasonable care and diligence In keeping the thing deposited.”

Again he says:

“ Ordinary care is defined generally as that care which men ’ of common sense and prudence usually exercise over property of their own similar to that entrusted to their keeping as bailees. Tbe defendants were bankers, and received tbe plaintiff’s deposit in that capacity. Then tbe question arises, wliat would be deemed ordinary care.”

■Thus defining “ordinary care,” and placing it before the jury as the measure of obligation resting upon the plaintiffs in error, the jury would naturally infer that the failure to exercise this ordinary care was gross negligence for which plaintiffs in error were responsible. This error pervades a great portion of the charge, and for this the judgment must be reversed.

Exception is taken to that portion of the charge in which the court refers to the custom among bankers. There'was, it is true, very slight testimony in regard to custom, but slight as it was, the court was justified in referring to it. It was one circumstance by which the attention of the jury is drawn to the amount of care required, and to the fact that negligence and diligence, and their several degrees, are relative and not absolute. The learned judge in his charge very happily and clearly pointed out the fact that that which was great care and diligence in the keeping of one kind of property might be gross negligence in respect to another kind. It is all important that the jury should bear this in blind to determine the amount of care requisite, and the degree of care used, in any given case.

s. what does obligation86 for diligence. The judge also charged the jury as follows: “If you believe from the evidence that the defendants, before the time the plaintiff made the deposit with them, had shown the plaintiff the vault of their safe, and ropresei)lted to him that they used it for the safekeeping of their money and other valuables and deposits of money made with them, and that the plaintiff was induced to deposit his money package at defendants’ bank through thew representations, the defendants are held to a strict accountability, and are bound to exercise a higher degree of care in the keeping of plaintiff’s money deposit than they would be if no no such representations had been made to him;” and that “the depositary is bound so the observance of good faith and honesty towards Ms depositors; and if the jury find from the evidence, as last .stated, then the defendants should have put the plaintiff’s package in thé vault of their safe, if it were at all practicable to have done to, although it would have been necessary to have excluded therefrom property of their own of less value.” The following is the testimony upon which this portion of the charge is based. It is the testimony of defendant in error:

“ I have been in Hale’s bank, and seen his safe, prior to March 25, 1868. I was there in the latter portion of February or first of March, 1868._ I examined the safe at that- time, and the vault. Hale showed me the safe where the books were kept, and then showed me the vault where he kept his money.” And again, “I was in defendant’s bank on the last of February or 1st of March, 1868, and examined the safe. Hale told me he kept his money in the vault; I don’t recollect whether there was money or anything else in the vault at that time. I had made deposits for my brother, but not for myself, before that time.”

In giving the instructions last mentioned, we think was error. They were not warranted by the evidence. Parties to a deposit may unquestionably make a special contract as to the place and manner of keeping the deposit, a breach of which will render the depositary liable. Representations may be made to induce strangers to commence or depositors to continue depositing which will call for increased care on the part of the bailee. But a mere showing to a depositor of the facilities and security of a bank, does not amount to any such representation as will enhance the obligations of the banker in regard to deposits by such depositor.

3. witness; rejecting testimony. Before closing we think it proper to notice a point to which our attention was not called by counsel, but which unnoticed might occur on another trial with preiudice to one ° . . or the other party. In the two instructions asked by defendant in error and given by the court, the word will fully, or some word of kindred meaning should be used.^* The testimony of a witness wbo in some point has ignorantly testified falsely is not wholly to be rejected. Only that witness is wholly to be disbelieved who has hnowi/ngly and willfully testified to a falsehood.

The judgment is reversed and the cause remanded for a new trial.

All the Justices concurring.

* Each of the instructions referred to is in the exact words (except the name of the witness,) of an instruction quoted hy Safford, J., and pronounced good, in Campbell v. The State, 3 Kas., 496. Justice Safford, (pp. 495, 496,) says:

u The defendant asked the court to charge the jury as follows: * If the jury believe, from all the evidence, that the witness Mollie Brown has testified falsely in respect to any material fact, it is their duty to disregard the whole of her testimony.’ The court refused so to instruct, and to this ruling the defendant hy his counsel excepted. In. our opinion the language of the instruction embodies a sound principle of law, and * * * it ought to have been given to the jury.”

In writing the opinion the word “willfully” was no doubt inadvertently omitted from the instruction, and the error was carried into the syllabus and the index. The instruction, as asked by defendant, is given in the statement of the case, (3 Kas., p. 489,) and is repeated hy the counsel, in their brief, (p. 491,) andinboth eases the word “willfully” occurs next before the word “testified.” Its omission from the instruction, when quoted hy the court, and the emphatic endorsement as so quoted, has no doubt misled both counsel and court in other cases than that of Hale v. Rawallie. It will be observed, however, that the court in this last case saythat a witness to bewholly disbelieved must have knowingly and willfully testified to a falsehood. — Rupouteu,