3 Kan. 257 | Kan. | 1865
By the Court,
On this record the first question presented is, whether the defendant Johnson was liable as an inn-keeper, and we are clearly of the opinion that he was not. The proof shows that the plaintiff Reynolds, at the time he made the deposit with Johnson, and for a long time before, was a regular boarder by the week, and not a traveler or guest. Hence the strongest rule of law as to the liability of an inn-keeper, does not apply to this case. This point is too well settled to require argument. The authorities are conclusive and unanimous.
‘•As inns are instituted for passengers and wayfaring men, a neighbor or friend who is no traveler but comes to the inn at the request of the inn-keeper and lodges there, is not deemed a guest. But where a traveler comes to the inn and is accepted, he becomes instantly a guest. If a traveler leaves his horse at an inn and lodges elsewhere he will be deemed a guest, but he will not be deemed a guest in such a case if ho leaves goods for which the inn-keeper receives no compensation. The length of time that a man is at an inn makes no difference whether he stays a week or a month or longer. So always, that although ho is not strictly transiens he retains his character as a traveler. But if a person comes upon a special contract to board and sojourn at an inn, he is not in the sense of the law a guest, but he is deemed a boarder.” Story on Bailments, see. 477, and cases cited.
What then is the character of the bailment disclosed in the testimony in this ease, and from which the liability of the plaintiff in error arises?
Manifestly it is that species of bailment known in law as
Conceding, then, that the delivery of the gold hy Reynolds to Johnson was a deposit and that Johnson became a depositary, what were the obligations arising on Johnson’s part from the fact of the deposit?
The answer is given hy the same distinguished jurist. <c It consists of two things: first, that lie shall keep it with reasonable care; and second, that he shall return it according to the original trust. Bnt what is to be deemed rea- “ sonable care ? Being a bailee without reward, the deposi- ,; tary is bound to slight diligence only; and he is not therefore answerable except for gross neglect. Bnt in every I case good faith requires that he should take reasonable care 1 of the deposit. And what is reasonable care must materi- " ally depend upon the nature, value and quality of the thing; the circumstances under -which it is deposited, and sometimes upon the character and confidence and particular dealings of the parties.
It is often laid down in the books that the depositary is bound to take tbe same care of the deposited goods that lie takes of his own.
The depositary is, as has been stated, bound to slight diligence only; and the measure of that diligence is that degree of diligence which persons of less than common prudence at all take of their own concerns.” Story on Bail., secs. 63, 64.
The modern. Civil Code of France adopts the same rulo. The depositary must bestow (says the Code,) in the keep of the thing deposited the same care that he bestows in keep
This rule was adopted after a very full and able discussion of the whole subject, in the case of Foster et al, v. Essex Bank, 17 Mass., 179, a case which from the interest involved as well as from tlie eminence of the counsel engaged on either side, and the high character of the .court is entitled to great consideration. In that case it was held that where a cask containing fifty thousand dollars in gold was deposited in a bank for safe keeping, and the gold was fraudulently taken out by the cashier of the bank, that the bank was not liable to the depositor for the value of the gold so taken.
We see nothing in the case at bar to distinguish it materially from this and other similar cases, or if there are points of difference they tend rather to strengthen the case of the plaintiff in error than that of the defendant.
The defendant was well acquainted with the plaintiff in error, having boarded and made bis home at the plaintiff’s house for several months, and it clearly appears that the defendant’s gold was kept in the samo safe as that in which the plaintiff in error kept his own money and valuables.
The judgment will be reversed.
