| Pa. | Mar 17, 1879
delivered the opinion of the court, March 17th 1879.
The learned judge of the court below was accurately correct when he instructed the jury that the defendant, in a case like that under consideration, was held only for gross negligence, and that it rested upon the plaintiff to show affirmatively that the bank was guilty of such negligence. He errs, however, when he comes to define what the term “gross negligence” means. He says, “In a case like the one before us, where slight care is required to be exercised on the part of the bailee, the defendant is liable only in case of gross negligence. Negligence is defined to be the absence of care, or the omission by a party to exercise that diligence which a prudent man ordinarily exercises in regard to his own property. Has the. defendant in this case been guilty of that degree of negligence, viz., gross negligence ?”
Had this definition been omitted it might have been presumed that the jury, from the use of the terms slight care and gross negligence, would have reached a proper conclusion as to their meaning and effect,-but in such case the presumption would be that the idea of ordinary care and ordinary prudence had been excluded, but this would necessarily exclude the learned judge’s definition.
The fact is, the rule thus laid down by the court is the one which our brother Woodward, in the case of the Bank v. Graham, 29 P. F. Smith 106, adduces as decisive of the bailee’s good faith and performance of his whole duty. In other words, as is said by Duncan, Justice, in Tompkins v. Saltmarsh, 14 S. & R. 275, “the bailee without reward is not bound to ordinary diligence, is not responsible for that care which every attentive and diligent person takes of his own goods, but only for that care which the most inattentive take.”
It follows that if the defendant committed only a breach of ordinary care and diligence, in the keeping of the plaintiff’s bonds, the verdict should have been in its favor.
Conceding that the bank, in case of gross negligence, would be liable for the loss charged, and we do not stop to discuss this question, as it has been definitely settled in the case of the Bank v. Graham, above cited, then what remains is the inquiry whether the defendant was grossly negligent in the care of the property committed to its charge.
On this branch of the case the court charged that the mere fact that Blumer, the president, had used the bonds to raise money for his own private purposes, would not of itself make the bank liable, but if this improper use by him of the plaintiff’s property was known to the bank officers, and they assented thereto, or if they
This is good, sound law, but we fail to discover the evidence which adapts it to this case. If there was any evidence showing knowledge on part of any of the bank officers but Blumer and his son, of or concerning these bonds or their use, proper or improper, it does not appear in the records submitted to us. Again the learned judge says, “ If you find the proper officers of the bank did send these bonds to Philadelphia for safekeeping, the relation existing between Rex and the defendant would be changed from what it originally was. If the First National Bank of Allentown, for its own convenience or profit, selected some other depository for these bonds, it would be liable in case of loss, even if but ordinary negligence was shown.”
The first sentence of the above quotation is not easy of comprehension ; for if the bonds were in good faith transferred to a place considered more safe than that of the original deposit, we cannot see how the relations of the parties would be changed, or how the liability of the bank would be thereby increased. The same objection, however, lies to this and the succeeding sentence as to the main part of the charge as already stated, that is, there is no evidence to support them.
It is, indeed, true, that at one time Blumer, and at another time his son, when applied to for the bonds, said they had been sent to Philadelphia for safe-keeping, but it is evident from the whole evidence of the case that this was a mere fabrication to gain time. The fact is manifest and uncontradicted that Blumer had abstracted the bonds and used them for his own purposes. He himself admits this, and states that the bank had neither bonds nor papers of any kind in Philadelphia for safe-keeping.
About the fraud of Blumer there is no doubt, but that the direc-’ tors knew of that fraud, or that they had reason to doubt the previous honesty of their president, there is literally not one word of evidence. Perhaps the plaintiff may do better on another trial, but as yet he has shown nothing which ought to have prevented the court from affirming the defendant’s second point.
Judgment reversed, and new venire awarded.