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(231 Ma88. 588, 121 N. E. 505.) tion between gross and ordinary ity which characterizes all neglinegligence, which at various times gence is, in gross negligence, magniand in divers jurisdictions have fied to a high degree as compared found their way into judicial opin- with that present in ordinary negliions, are no longer relevant to dis- gence. Gross negligence is a manicussions of that branch of the law festly smaller amount of watchfulas it prevails in this commonwealth.

ness and circumspection than the The difficulty in stating that dis- circumstances require of a person

tinction in cases of ordinary prudence. But it is definition of

where the evidence something less than the wilful, negligence- requires it must be wanton, and reckless conduct which duty of court.

met and overcome renders a defendant who has injured so far as possible. Indeed, simple another liable to the latter, even negligence has sometimes been said though guilty of contributory neglinot to be susceptible of easy defini- gence, or which renders a defendtion. See Gaynor v. Old Colony & ant in rightful possession of real N. R. Co. 100 Mass. 208, 214, 97 estate liable to a trespasser whom Am. Dec. 96. But legal obligations he has injured. It falls short of bemust be marked out and explained ing such reckless disregard of probfor the guidance of jurors, the en- able consequences as is equivalent lightenment of the parties, and the to a wilful and intentional wrong. information of the public.

Ordinary and gross negligence difNegligence, without qualification fer in degree of inattention, while

and in its ordinary both differ in kind from wilful and Negligence definition. sense, is the failure intentional conduct which is, or

' of responsible ought to be, known to have a tendperson, either by omission or by ac- ency to injure. This definition does tion, to exercise that degree of care, not possess the exactness of a mathvigilance, and forethought which, ematical demonstration, but it is in the discharge of the duty then what the law now affords. It is the resting on him, the person of ordi- result of our own decisions. Massanary caution and prudence ought to letti v. Fitzroy, 228 Mass. 487, and exercise under the particular cir- cases cited at pages 500, 501, L.R.A. cumstances. It is a want of dili- 1918C, 264, 118 N. E. 168, Ann. gence commensurate with the re- Cas. 1918B, 1088; Devine v. New quirement of the duty at the mo- York, N. H. & H. R. Co. 205 Mass. ment imposed by the law. Gross 416, 419, 91 N. E. 522; Banks v. negligence is substantially and ap- Braman, 188 Mass. 367, 369, 74 N. preciably higher in magnitude than

E. 594; Aiken v. Holyoke Street R. ordinary negligence. It is materi- Co. 184 Mass. 269, 271, 68 N. E. ally more want of care than consti

238. It is supported by the great tutes simple inadvertence. It is an weight of authority in other jurisact or omission respecting legal duty dictions." The definition here given

of an aggravated Definition, gross negli- character, as dis

1Weld v. Postal Teleg. Cable Co. 210 N. gence.

tinguished from a Y. 59, 71, 72, 103 N. E. 957, 5 N. C. C. A. mere failure to exercise ordinary 992; Neal v. Gillett, 23 Conn. 437, 443;

Gray v. Merriam, 148 Ill. 179, 32 L.R.A. care. It is very great negligence,

769, 39 Am. St. Rep. 172, 35 N. E. 810, 1 or the absence of slight diligence, Am. Neg. Cas. 478; Dallas City R. Co. v. or the want of even scant care. It Beeman, 74 Tex. 291, 11 S. W. 1102; amounts to indifference to present

Farmers' Mercantile Co. v. Northern P.

R. Co. 27 N. D. 302, 146 N. W. 550; Whitlegal duty, and to utter forgetful

ney v. First Nat. Bank, 55 Vt. 155, 45 ness of legal obligations so far as

Am. Rep. 598,1 Am. Neg. Cas. 582; Lothother persons may be affected. It ian v. Western U. Teleg. Co. 25 S. D. 319, is a heedless and palpable violation

323, 126 N. W. 621; Coit v. Western U.

Teleg. Co. 130 Cal. 657, 664, 53 L.R.A. of legal duty respecting the rights

678, 80 Am. St. Rep. 153, 63 Pac. 83; of others. The element of culpabil- Bennett y. New York, N. H. & H. R. Co.

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But

does not differ in any essential particular from the statement of the rule made by some courts to the effect that gross negligence is the omission of even such diligence as habitually inattentive and careless men do not fail to exercise in avoiding danger to their own person or property. Dudley v. Camden & P. Ferry Co. 42 N. J. L. 25, 28, 36 Am. Rep. 501; Louisville & N. R. Co. v. McCoy, 81 Ky. 403, 413; Louisville & N. R. Co. v. Smith, 135 Ky. 462, 122 S. W. 806; White v. Western U. Teleg. Co. 5 McCrary, 103, 113, 14 Fed. 710; Wiser v. Chesley, 53 Mo. 547; McNabb v. Lockhart, 18 Ga. 495, 507, 1 Am. Neg. Cas. 754. But the definition here formulated is fundamentally at variance with that given in some other jurisdictions, which hold that gross negligence implies wilful conduct, either actual or constructive, intended to cause injury,-a variance recognized in some of those decisions. Jorgenson v. Chicago & N. W. R. Co. 153 Wis. 108, 116, 140 N. W. 1088; Louisville & N. R. Co. v. Orr, 121 Ála. 489, 499, 26 So. 35. See Bouchard v. Dirigo Mut. F. Ins. Co. 114 Me. 361, 365, 96 Atl. 244. The reasons why this court cannot adopt the view of those decisions are set forth at length in Banks v. Braman, 188 Mass. 367, 74 N. E. 594, and need not be repeated here. Moreover, those decisions appear to ignore the contradiction implied in the use of "wilful negligence." See, in this connection, Chicago, R. I. & P. R. Co. v. Hamler, 215 Ill. 525, 540, 1 L.R.A. (N.S.) 674, 106 Am. St. Rep. 187, 74 N. E. 705, 3 Ann. Cas. 42; Terre Haute & I. R. Co. v.

Graham, 95 Ind. 286, 293, 48 Am.
Rep. 719; Thayer v. Denver & R.
G. R. Co. 21 N. M. 330, 346, 154
Pac. 691; Milwaukee & St. P. R.
Co. v. Arms, 91 U. S. 489, 23 L. ed.
374.

57 Conn. 422, 426, 18 Atl. 668; Doorman
v. Jenkins, 2 Ad. & El. 256, 111 Eng. Re-
print, 99, 4 Nev. & M. 170, 4 L. J. K. B.
N. S. 29; Kingston v. Drennan, 27 Kan. S.
C. 46, 60; Donaldson v. Acadia Sugar Ref.
Co. 48 N. S. 451, 458; Union P. R. Co. v.
Henry, 36 Kan. 565, 569, 570, 14 Pac. 1;
Jones v. Atchison, T. & S. F. R. Co. 98
Kan. 133, 137, 157 Pac. 399; Chicago, B.
& Q. R. Co. v. Johnson, 103 Ill. 512, 525;
Jacksonville Southeastern R. Co. v. South-
worth, 135 Ill. 250, 255, 25 N. E. 1093;
Memphis & L. R. R. Co. v. Sanders, 43
Ark. 225, 229; Campbell v. Monmouth
Mut. F. Ins. Co. 59 Me. 430, 437; Wexel

Since the distinction between negligence and gross negligence is embedded in our law, and its principles for the discernment of that distinction are established, a party, whenever the evi

Trial-instruc

negligence.

dence makes them tion-rules of
applicable, has a
right to insist that the jury be in-
structed in conformity to them.

In the case at bar the judge instructed the jury respecting the liability of the defendants as gratuitous bailees, by saying at first: ""The duty which the law imposes on gratuitous bailees is that the bailee shall act in good faith;' that is, shall use the degree of care in the performance of the undertaking which is measured

gratuitous→

liability.

by the carefulness ailment
which the deposi- rule of
tary
tary uses toward
his own property of similar kind,
under like circumstances."

That was correct. But the charge
did not stop there. The judge then
said further: "So that, in deter-
mining the question that is present-
ed here, it would be necessary to
ask the question whether the de-
fendants, in dealing with the prop-
erty of the plaintiff, did deal with it
with the same degree of carefulness
which any person would use toward
his own property of similar kind,
under like circumstances.
Now, if the ordinarily prudent man,
in shipping goods, in dealing with

v. Grand Rapids & I. R. Co. 190 Mich. 469, 477, 157 N. W. 15; Holwerson v. St. Louis & Suburban R. Co. 157 Mo. 216, 240, 241, 50 L.R.A. 850, 57 S. W. 770; Bannon v. Baltimore & O. R. Co. 24 Md. 108, 124; Poling v. Ohio River R. Co. 38 W. Va. 645, 661, 24 L.R.A. 215, 18 S. E. 782, 10 Am. Neg. Cas. 409; Strong v. Western U. Teleg. Co. 18 Idaho, 389, 406, 30 L.R.A. (N.S.) 409, 109 Pac. 910, Ann. Cas. 1912A, 55; Walther v. Southern P. Co. 159 Cal. 769, 37 L.R.A. (N.S.) 235, 116 Pac. 51; Lee v. Northwestern R. Co. 89 S. C. 274, 71 S. E. 840; Colyar v. Taylor, 1 Coldw. 372, 1 Am. Neg. Cas. 825.

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V.

(231 Ma88. 588, 121 N. E. 505.) his own property, would have need some guide as to the law which shipped them by an express com- , they ought to follow. The judge pany, and would have shipped them' gave them the rule of ordinary neg. upon an express receipt in which ligence. He ought to have stated the value was limited to not more to them the other standard of the than a certain sum,-if that would defendants' liability; that is to say, be what an ordinarily prudent man the liability arising from gross negwould have done under like circum- ligence with respect to the property stances and in a similar situation, if of the plaintiff as defined heretofore that is what these defendants did, in this opinion. This, although reof course, they are not liable. If, on quested, he failed to do. the other hand, they did not deal The judge rightly refused to diwith it as the ordinarily prudent rect a verdict in favor of the deman, dealing with his own property fendants. The facts were sufficient under like circumstances, would to support a finding for the plainhave done, and if they were careless tiff. It was for the jury to say in not doing so, then the plaintiff whether it was not Trial-quention would be entitled to a verdict in this a gross negligence or for jury-bronn

negligence, case.”

want of good faith That was erroneous. It imposed on the part of the defendants to upon the defendants liability for fail to observe the quantity of silk, simple negligence. As has been and to reship it to the plaintiff with pointed out, they were not liable for an excessive undervaluation given ordinary negligence, but only for to the carrier, a statement as to gross negligence or bad faith.

value by which the parties became It would have been correct to

bound by contract. Aradalou state the lawas laid down in Foster

New York, N. H. & H. R. Co. 225 v. Essex Barik, 17 Mass. 479, 498, Mass. 235, and cases cited at page 499, 507, 9 Am. Dec. 168, 1 Am. 238, 114 Ń. E. 297. Neg. Cas. 502; or in Rubin v. Huhn, The jury may have discredited 229 Mass. 126, post, 1190, 118 N. E. the evidence tending to show that 290, and instruct the jury that bad they exercised the same care with faith or gross negligence in dealing respect to the goods of the plaintiff with the goods held by them was

as they did with respect to their the standard of the defendants' lia

own. If they did so discredit it, bility, and that failure to use, with respect to the plain

then they might find gross neglitiff's goods,

the

gence on the other evidence.

Exceptions sustained.
same care which
they exercised toward their own,
was sufficient to establish bad faith,

NOTE.
and hence liability. But the only
evidence as to the way in which the
defendants dealt with their own

The reported case (ALTMAN V. ARgoods of similar character under

ONSON, ante, 1185) is of interest for like circumstances came from an

its discussion of the difference beemployee of the defendants. The tween ordinary negligence and gross jury might not believe his testi- negligence. As to just what the term, mony. If they reached that con

"gross negligence," as used in the clusion, then they would have no common formula, that a gratuitous standard of bad faith as established

bailee is liable only for gross negliby the conduct of the defendants gence, connotes, see annotation on with respect to their own goods un- page 1196, post, on "Duty and liability der like circumstances, and would of gratuitous bailee or mandatary.”

-failure to care
for his own.

MYER RUBIN

V.
SAMUEL I. HUHN, Appt.

Massachusetts Supreme Judicial Court - January 4, 1918.

(229 Mass. 126, 118 N. E. 290.) Bailment gratuitous appraisement loss liability.

1. One to whom a diamond is delivered for gratuitous appraisement in a crowded theater lobby is not liable to its owner for its value, merely because he drops and loses it.

[See note on this question beginning on page 1196.] - gratuitous - appraisement of dia

to whom it is delivered for gratuitous mond.

appraisement is not a conversion. 2. One who in a crowded theater

- conversion of diamond. lobby receives diamonds for inspection

6. One to whom a diamond is delivand appraisement, without reward, is

ered for gratuitous appraisement is a mere gratuitous bailee.

liable to the owner for its value if he [See 3 R. C. L. 94.]

refuses to return it upon demand, but care required.

delivers it to a stranger not authorized 3. A gratuitous bailee must act in by the owner to receive it. good faith; that is, he must use the

Trial – requested instruction ef. degree of care in the performance of

fect. the undertaking, which he uses towards his own property of similar kind un

7. A requested ruling that, upon all der like circumstances.

the evidence, judgment must be direct[See 3 R. C. L. 101.]

ed for defendant, is in effect a request care of prudent man.

to rule that the evidence is insufficient 4. The care required of one to whom

in any legal form of declaring, to jusdiamonds are delivered for gratuitous

tify à finding for plaintiff in any appraisement is not measured by that

amount. which a reasonably prudent man would Damages for loss of diamond. exercise under the circumstances.

8. Where a gratuitous bailee lost one [See 3 R. C. L. 101 et seq.]

of a pair of earrings, and converted the Trover loss of diamond conver- other, he is liable only for the value of sion.

the latter. 5. The mere loss of a diamond by one [See 8 R. C. L. 486.)

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APPEAL by defendant from an order of the Appellate Division of the Municipal Court of Boston dismissing the report of an action brought to recover the value of earrings, lost while in defendant's possession for gratuitous appraisement. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Walter Hartstone and Har- in a box, and, at the request of Wynry L, Michaels for appellant.

er, then and there undertook to inMr. Samuel Sigilman for appellee.

spect, examine, and appraise them, Pierce, J., delivered the opinion of without reward. Foster v. Essex the court:

Bank, 17 Mass. 479, 9 Am. Dec. 168. The defendant assumed, at most, The duty which the law imposes on the obligation of a gratuitous bailee, gratuitous bailees is that the bailee

when, in the lobby shall act in good faith, that is, shall

of a theater crowdgratuitous

use the degree of appraisement of ed with people, he

-care required. care in the performreceived from one ance of the undertaking which is Wyner a pair of diamond earrings measured by the carefulness which

Bailment

diamond.

effect.

-care of

(229 Ma88. 126, 118 N. E. 290.) tne depository uses toward his own vised Rep. 45; Claflin v. Boston & property of similar kind under like L. R. Co. 7 Allen, 341; Saxon Mills circumstances. Ibid; Whitney v. v. New York, N. H. & H. R. Co. 214 Lee, 8 Metc. 91, 1 Am. Neg. Cas. Mass. 391, 101 N. E. 1075, and 789; Smith v. First Nat. Bank, 99 cases cited. Mass. 605, 97 Am. Dec. 59, 1 Am. At the close of the evidence the Neg. Cas. 523.

defendant requested the court to In an action of contract or of tort rule, "that, upon all the evidence, -gratuitous

for breach of duty judgment must be directed for the appraisement- imposed by law, the defendant." In effect, this was a Poss-liability,

mere fact “that the request to rule that the evidence defendant dropped one of the ear- was insufficient, in

Trial-requested rings, and it was lost,” is not suf- any legal form of instructionficient evidence of his gross negli- declaring, to justify gence to warrant a finding for the a finding for the plaintiff for any plaintiff. The firding of the judge amount. Ideal Leather Goods Co. v. "that the defendant, in handling and Eastern S. S. Corp. 220 Mass. 133, dealing with the earrings, did not 107 N. E. 525; Brown v. Pelonsky, exercise such care as a reasonably 210 Mass. 502, 506, 96 N. E. 1102. prudent man would have exercised The request was refused rightly.

under the circum- However, it is manifest that judgstances."

imposed ment should not be entered for $85, prudent man.

upon the defendant, the value of both earrings, but gratuitous bailee, a standard of care should be in such which measures the duty of the amount as, upon loss of diamond.

Damages-for bailee for hire. This was manifest hearing, shall be deerror.

termined was the value of the single Upon the reported facts the earring at the time it was converted. failure to return the

Loanes v. Gast, 216 Mass. 197, 199, Trover-loss of diamond

lost earring is not 103 N. E. 473. conversion. a conversion.

It follows that the order of the "The action of trover is not main- Appellate Division of the Municipal tained by proof of negligence, but Court, of the city of Boston, “Report only of misfeasance amounting to a

dismissed,” must be affirmed. conversion.” Foster, J., in Hall v.

So ordered. Boston & W. R. Corp. 14 Allen, 439, 443, 92 Am. Dec. 783.

NOTE. As regards the other earring, the facts found warrant a finding that the defendant, in the possession of

The reported case (RUBIN V. HUHN,

ante, 1190) is useful as emphasizing the earring, on demand, refused to

the point, often lost sight of, that the deliver it to the owner, the plain- conduct of a gratuitous bailee is, untiff. Moreover, the testimony of the

like that of a bailee for hire, not to defendant would warrant a finding

rant a finding be tested by the abstract standard of that he delivered the earring to a conduct of the hypothetical man of person unauthorized to receive it by ordinary prudence, but by resorting to the owner, or by the person from the specific inquiry whether he has

whom the defendant taken the same care of the property -conversion of received it. An ac- intrusted to him as he himself would

tion of trover will have taken had the property been his lie upon either view of the facts. own. The question of the liability of Devereux v. Barclay, 2 Barn. & Ald. gratuitous bailees is discussed in de704, 106 Eng. Reprint, 521, 21 Re- tail on a subsequent page, 1196.

diamond.

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