127 Ill. App. 572 | Ill. App. Ct. | 1906
delivered the opinion of the court.
The principle of decision applicable to this case seems to us well expressed in Gray v. Merriam, 148 Ill. 179. Referring to Story on Bailments, the court in that case said concerning gratuitous bailments:
“Story, after stating the rule that when the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, subsequently adds that in every case good faith requires a bailee without reward to take reasonable care of the deposit, ‘and what is reasonable care must materially 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.’ ”
We think the rule and the reasoning set forth in Gray v. Merriam (the result of views more liberal, as the court intimates in its opinion, than those once entertained of the liabilities of bailees without "reward) cover the case presented in this appeal.
Quoting with approval from the opinion of. Mr. Justice Field of the U. S. Supreme Court in Preston v. Prather, 137 U. S. 604, our Supreme Court says: “‘Gross negli-X gence,’ as applied to gratuitous bailees, is nothing than a failure to bestow the care which the property in its situation demands.” And “The omission of the reasonable care required is the negligence which creates the liability, and whether this existed is a question of fact for the jury to determine.”
This rule is as applicable to bailments of baggage at hotels as to bailments of bonds at banks.
We see nothing in the instruction which is complained of in this case, or in the refusal of others tendered, which is inconsistent with it.
It seems to us, on the contrary', that the jury were properly instructed as to the law in precise accordance with it. They were told expressly that the defendant, even if proprietor of the hotel, was only' a gratuitous bailee of the goods lost, that he was liable only “for failure to exercise reasonable care,” (which is equivalent to “the care which the property in its situation demanded”), and then were left to determine “whether this reasonable care existed.”
What was “reasonable” care under all the circumstances of this case, was certainly a matter as easy for the jury to determine as what was “slight” or “ordinary” or “gross” negligence.
Quoting from Schouler on Bailments.also with approval, our Supreme Court say in Gray v. Merriam, “ ‘slight,’ ‘ordinary’ and ‘great’ are terms some courts wish to see discarded, and they prefer judging of each case by its own complexion.”
If the jury had not been instructed in accordance with the claim of appellant as to the character of the bailment in the hands of the proprietor of the Lexington Hotel, at the time of the loss, the questions argued by counsel concerning the circumstances which will terminate the peculiar common law liability of an innkeeper for the baggage of his guests, would-be material. As it is, they are not so.
In our view, the jury, under a proper instruction as to the care required from the bailee under the circumstances and “complexion” of this case, came to a decision concerning the want of “reasonable care,”- which was not unwarranted or injudicious.
The other points chiefly insisted on by the appellant are that incompetent evidence was admitted over his objection, to show his proprietorship of the Lexington Hotel, and that even with this admitted and considered, the clear preponderance of evidence must be held to negative his ownership, and consequently his liability.
We cannot agree with these propositions. If the appellant was the ostensible proprietor and operator of the hotel, that is if he not only presented to the public generally, and ■to the guests of the hotel particularly, the aspect of such proprietorship, but also held himself out as such proprietor by advertisements upon the stationery and register of the hotel, especially arranged to attract the attention of the public and guests, then he was the bailee of these goods, and a mere want of technical ownership of the plant, or his private and personal relations to some corporation having an investment therein, could not protect him from liability as such bailee.
The evidence of the advertisements was competent and properly admitted, and so were the letters signed by the appellant personally and treating of “ our responsibility ” in connection with the nature of the bailment.
Nor do we think that the testimony of Eoss made a clear preponderance of the evidence to the proposition that he was not the bailee of these goods. The jury were instructed on this point certainly as favorably to the defendant as he could properly claim, and came, in our opinion, to a justifiable conclusion.
Appellant complains of the first instruction given for the plaintiff, but his criticism is based upon a misapprehension of what it contains. It does not tell the jury to “disregard the entire testimony” of such a witness as is described therein. It is not, in our opinion, objectionable.
The objections made to the language of counsel for appellee in his closing argument reproved by the court, and to the refusal of the court to exclude the plaintiff’s testimony as to the value of the goods lost, we do not think of serious import.
The judgment of the Circuit Court is affirmed.
Affirmed.
