Odger's English Common Law

BAILMENTS. 637
another, or to do something to them for the benefit of the
bailor. In such cases the bailee is bound to use merely a
slight degree of diligence with regard to the thing bailed, and
is liable for gross negligence only. The fact that he is to
receive nothing for his services would entitle the bailee to
If, however, he accepts the *
refuse to undertake the trust. 1
bailment, he will thereby render himself liable to the extent
above indicated for negligence in its discharge, although his
services are rendered gratuitously ; for the confidence dis-
played by the bailor in handing over the chattel to the bailee
is a sufficient legal consideration to create a duty in the
bailee. It is generally true with respect to gratuitous contracts
that for nonfeasance, even when a party suffers damage
thereby, no action lies, but for misfeasance an action will lie.
This was decided in the case of Goggs v. Bernard. 2 There the plaintiff
alleged that, whereas the defendant undertook and promised safely and
securely to take up certain hogsheads of brandy out of a cellar where they
were deposited and to lay them down in another place, he so negligently
and carelessly put them down again, that by his negligence one of the
casks was staved and a quantity of brandy spilt. After verdict an
objection was taken that the plaintiff had nowhere alleged that the defen-
dant was a common carrier (in which case, as we shall presently see, peculiar
responsibilities would have been cast on him), or that he was to have
received anything for his services ; and the question consequently was,
whether a man, not being a common carrier, who undertakes gratuitously
to carry goods or to perform some act in connection with them, is liable
for any degree of negligence in the performance of his undertaking ; aDd
the Court decided that he was. It was in this case that Lord Holt
delivered his celebrated judgment, in the course of which he minutely
considered the various classes of bailments and the degree of diligence
required in each.
It is not always easy to determine what is gross negligence.
It is often a question of mixed law and fact. 3 But in every
.case food faith requires that the bailee should take reasonable
care of the goods entrusted to him ; and what is reasonable
care must materially depend upon the nature, value and
.quality of the goods, the circumstances under which they are
i Thus no duty is cast upon the recipient of goods voluntarily sent to him without
anv request on his part : Howard v. Harris (1884), 1 C. & E. 253.
'
2 (1703), 2 Lord Eaym. 909 ; 1 Smith's L. C, 12th ed., 191.
3 Per Taunton, J., in Doorman v. Jenkins (1834), 2 A. & E. at p. 260.
.