Scott, Williams & Co. v. Crews

2 S.C. 522 | S.C. | 1871

The opinion of the Court was delivered by

Moses, C. J.

It is admitted in the argument that the plaintiffs in the case are chargeable on the hypothecation of the securities of the defendant, only as bailees of a pledge or pawn, and in this species of bailment, all that can be required of the bailee is ordinary care and diligence. This follows from the mutual advantage which the parties derive from the transaction. Unlike a mandatum, where the benefit is exclusively for the bailor, and 'a commodatum, where the loan is only for that of the borrower, a pledge is made on a consideration which promises gain to the bailor and bailee. The one obtains the use of the money borrowed, while the other procures a security for that which ho has loaned. Plence, in regard to the mutual advantage incident to this bailment, the bailee, in the preservation of the article pledged, is only liable for ordinary negligence, because nothing is required of him beyond ordinary diligence.

That the condition of the bailment in question demanded ordinary care was a principle of law, but what amounts to ordinary or common diligence, as Mr. Justice Story, in the 11th Section of his work on Bailments, says, “ is more a matter of fact than of law.” Diligence is a term of relative significance. As referred to the charge of a bag of corn, and valuable jewel, the care which is exacted in the two cases is of a widely different character. It is not only difficult, but almost impossible to prescribe a precise and inflexible direction, which, w^ith any sort of propriety, could uniformly apply to the varied and changing forms in which the question may be presented. Eminent writers have endeavored to define what is meant by “ ordinary diligence” in connection with this character of bailment; and yet some of the most learned among them have at the same time not refrained from remarking on the difficulty of laying down a fixed and determinate rule.

Mr. Justice Story, in the same Section of his work to which we have referred, says: “ But the difficulty is intrinsic, in the nature of the subject, which admits of an ■ approximation only to certainty. Indeed, what is common or ordinary diligence is more a matter of fact than of law. And in, every community it must be judged of by the actual state of society, the habits of business, the general usages of life, and the dangers, as well as the institutions peculiar to the age. So that although it may not be possible to lay down any very exact rule applicable to all times and all circumstances, yet that may be said to be common or ordinary diligence, in the sense of the law, which men of common prudence generally exercise about their own affairs in the age and country in which they live.”

Chancellor Kent, in the 2d Yol. of his Commentaries, p. 561, says: “ Diligence is a relative term, and it is evident that what would amount to, the requisite diligence at one time, in one situation, and under one set of circumstances, might not amount to it in another.” This care and diligence of prudent men in the management of their own affairs to which the bailee is bound, is to be measured in its exercise, under the like circumstances, and in the same situation in which he at the time is placed. The locality, too, is to be considered, for what such men do in the matter, in the country and age in which they live, is to be accepted as the result of experience in furnishing such safeguards and securities as would be most likely, having their own interest in view, to protect their property against the dangers of fire, theft and robbery. We commend the language of Mr. Justice Sharswood, in the case of the National Bank of Erie vs. Smith, Randolph & Co., (Penn., January, 1871,) which has been frequently referred to in the argument of the counsel for the appellant. He says, “ What, then, is usually done in a place in respect to things of a like nature (which must be considered as done in reference to the surrounding circumstances, in reference to the danger which threatens, in reference to the liability of loss,) what is generally done in a place in respect to things of a like nature, whether more or less, in point of diligence, than is exacted in another place, becomes, in fact, the general measure of diligence in that place, and constitutes the standard.” All the duties and obligations which the law imposes on a bailee of a pledge, we think, are bei-e comprised in plain and perspicuous language. The ordinary diligence which attaches to the trust which such a relation creates, is not tested by the course and conduct of one or more individuals, but the standard is established from a general experience of human action under like circumstances, in the same age and country. As Mr. Justice Story says, in the 12th Section of his work already quoted, i,: It will thence follow that, in different times and in different countries, the standard is necessarily variable with respect to the facts, although it may be uniform with respect to the principle. So that, it may happen that the same acts which, in one country or in one age, may be deemed negligent acts, may, at another time and in a different country, be justly deemed an exercise of ordinary diligence.”

The exception first made in the case before us is, that the Circuit Judge refused to charge the jury “ that the plaintiffs cannot be said to have exercised ordinary care, unless it be found that they have availed themselves of all the means for securing their deposits that art and mechanical skill could afford ; and it is a proper enquiry for the jury to say whether proper efforts wore made by the plaintiffs to ascertain and procure those mechanical improvements of the age, which, without extraordinary diligence, could have been secured.”

If the law requires the bailee of a pledge to provide himself with all the mechanical improvements of 'the age to protect him from the consequences of a loss of the property by theft, then, instead of being bound to ordinary care, he would be held to extraordinary diligence, which is only required in a bailment for the sole benefit of the bailee. The proposition of law involved in the charge so asked for was sought to be modified by submitting an enquiry to the jury, whether proper efforts were made by the plaintiffs to ascertain and procure those improvements which, without extraordinary diligence, could have been secured. This was only complicating them with another enquiry which could not affect the material issue upon which they were to pass.

Where one holds himself out to the community as a banker the public is to assume that he has the means of protecting the property confided to his care by the nature of his business, and that he is furnished with all that is necessary to enable him to use ordinary diligence in the charge which he has invited. The appliances necessary to the diligence must have a relative .reference to the community in which lie lives. The safety of the article confided to him might possibly be better secured by watchfulness and vigilance than by bars and bolts. It is a common practice in large cities for banking houses to employ a watchman, and yet it would scarcely be contended that these plaintiffs were guilty in such omission, if nota single bank in the place in which they lived thought it necessary to avail itself of such a security. The proposition contended for by the appellant in this exception would make no difference in the application of the rule to a banking house in London or New York, both populous cities, where it is to be supposed that crime of every species prevails, and a small and quiet city like Columbia, where a burglary or stealing at night from a house rarely occurs. The “ circumstances surrounding each particular case” must be considered. Prudence would demand a greater degree of care on the part of a bailee at Columbia than in Oconee, a small and quiet village, where, much to its credit, crime is seldom committed; while a still greater degree of diligence would be looked for from one in Charleston than in Columbia, because of the varied and changing character of the population of the metropolis, and of the more extensive field which it presents for the perpetration of crime. If ordinary negligence is to be inferred from the absence of the appliances which the mechanical skill of the age has invented, without regal'd to the place, there would be no discrimination between a loss by a bailee through theft in an extensive city or a secluded village. Can common reason or common sense justify a requirement in the law that would demand of. a banker in Columbia the employment of the same security against theft, both in regard to the building and the vault, that would be demanded of one in New York or Charleston ? The bailees here, as was said by, Mr. Justice Sharswood in the case referred to, “ were not bound to the highest degree of diligence, and the plaintiffs are not liable for • the loss, though they might have employed some mechanical or other improvements which might in all probability have avoided the robbery.” The instruction asked in the case before us is said to be, in effect, identical with the language of Judge Sharswood, because here it was said to be limited “to the mechanical improvements of the age, which, without extraordinary diligence, the plaintiffs could have secured.” If the proposition is to be applied independent of the locality, aud the caution which springs from a- consciousness of danger by reason of the probability of crime from the character of the community, what rule would the jury prescribe for itself in determining to what extent such improvements could have been procured without extraordinary diligence ?

There is no doubt that ordinary diligence must be measured, at this day, by a different standard from that which would have been applied twenty years ago, but looking to the period and the placo, the jury are to determine if it was properly exercised under the surrounding circumstances.

Good faith is not involved in the consideration. An honest man may be careless and indifferent with his own, but his want of care of the property of others entrusted to him for safe keeping on a consideration, is not to be excused by proóf of good intention. The answer to the question, “Did the bailee, under the circumstances, do all that could be expected of a reasonable and prudent man ?’’ should be accepted as a determination of the issue.

In Vaughan vs. The Taffe R. R. Co., 5 Hurls. & Nor., 678, Willes, J., said: “The definition of negligence is the absence of care, according to the circumstances.” Sherman & Redfield say, in their work on Negligence, at page 5: “Culpable negligence is the omission to do something which a reasonable, prudent and honest man would do, or the doing something which such a man would not do under the circumstances surrounding each particular case.”

The ground of exception secondly made is, that the Circuit Court declining the instruction first asked, held “ that the Court could not prescribe any absolute rule or measure of diligence, and that it was a question exclusively for the jury to find whether, in the language of the instruction, proper efforts were made by the plaintiffs to ascertain those mechanical improvements of the age, which, without extraordinary diligence, could have been secured; in other words, whether ordinary care devolved it upon the plaintiffs, bankers in Columbia, to employ all the means of security known to art and applicable to their business, was exclusively a question of fact for the jury.”

This, we hold, was error, because it submitted to the jury a question of legal determination — whether ordinary care devolved it on the plaintiffs to employ all such securities was not exclusively a question of fact for the jury. If the plaintiffs were bound to the rule implied by the language, then they are chargeable with extraordinary diligence, for this would éxact, on the. part of the bailee, that care which very prudent persons take of their concerns, and such persons, it is to be supposed, would provide themselves with all the means of security known to art and applicable to their business. The bailees here were only liable for the want or ordinary care, and yet it was left to the jury to decide, whether a requisition which could only apply where extraordinary care is demanded should be claimed from a bailee who was only bound to ordinary diligence. It made the jury the judges of the law.

Negligence is a mixed question of law and fact. In the case before the Court, the law required that the plaintiffs should exercise that diligence in the care of the collaterals, which prudent men, under the same circumstances, ordinarily exercise about their own affairs, in the age and country in which they live, and the jury -was to determine, on all the evidence before them, whether they had so done.

It is ordered and adjudged that the motion be granted and a new trial ordered.

Willard, A. J., and Wright, A. J., concurred.