| Wis. | May 3, 1927
Under the provisions of sec. 270.28 of the Statutes, which provides: “Whenever any special verdict shall be submitted to a jury and there is omitted therefrom some controverted matter of fact not brought to the attention of the trial court by request but essential to sustain the judgment, such matter of fact shall be deemed determined by the court in conformity with its judgment, . . .” a new trial should be denied unless it clearly appears from the record that justice has not been done. Both counsel, as it appears from the record, labored under the impression that the vital-issue involved the statute of limitations. That the relationship of gratuitous bailor and bailee existed between the defendant and the plaintiff can hardly be disputed, and yet no trace of such a contention appears anywhere in the record. In 37 Corp. Jur. p. 840, § 193, it is said:
“A bailor’s right of action against his bailee accrues at the time of the latter’s breach of duty under the contract of bailment, and the statute of limitations then begins to run. Unless the term of the bailment is limited, no lapse of time bars the bailor’s right to the property, and his right of action does not accrue and the statute does not begin to run until denial of the bailment and conversion of the property by the bailee or some one claiming under him. To set the statute in motion there must be some act of the bailee inconsistent \yith the bailment and changing the nature of his holding, such as a refusal to deliver on demand.”
No demand having been made by the plaintiff for the return of his money until 1923, the statute of limitations did not begin to run until that time, and no issue on the statute was therefore involved.
“The quantum of diligence required to be exerted by a bailee in the care of an article bailed hinges on the question of recompense or no recompense. In accordance with this cardinal principle, there are, corresponding with the modern threefold division of bailments into bailments for the sole benefit of the bailor, bailments for the mutual benefit of both parties, and bailments for the benefit of the bailee, three different standards of diligence or care to be observed by the various kinds of bailees: slight, ordinary, and great or more than ordinary.”
Under the rule applicable to gratuitous bailments, where the bailment is solely for the benefit of the bailor, the bailee is required to exercise only a slight degree of care. In other words, in order to hold him liable he must be guilty of gross negligence. See, also, Minor v. C. & N. W. R. Co. 19 Wis. 40" court="Wis." date_filed="1865-01-15" href="https://app.midpage.ai/document/minor-v-chicago--north-western-railway-co-6599266?utm_source=webapp" opinion_id="6599266">19 Wis. 40; Willard v. Giles, 24 Wis. 319" court="Wis." date_filed="1869-06-15" href="https://app.midpage.ai/document/willard-v-giles-6600222?utm_source=webapp" opinion_id="6600222">24 Wis. 319.
A careful review of the evidence satisfies us that the defendant has exercised the degree of care required of it under the facts and circumstances existing in the instant case. It received no compensation for the safe-keeping of the plaintiff’s money. It deposited the same in its safe, where it deposited its other valuable articles and where it also kept the moneys of patients in the hospital. The money was inclosed in an envelope, which was properly indorsed for identification purposes. The money was left with the defendant for a period of eighteen years, and during all this time no inquiry as to such deposit was made by the plaintiff and no effort was exerted to determine whether the money was still upon deposit. The long delay, under the circumstances, goes to the question of whether or not the defendant is guilty, of gross negligence.
During this period changes occurred in the management of the hospital. The defendant is nowhere charged with fraud or bad faith, and the evidence establishes neither. Other sums of money had been left by the plaintiff for safe
While the statute of limitations, as above stated, did not begin to run until 1923, the long lapse of time, under all the facts and circumstances in the case, during which period the plaintiff continued as an employee of the hospital and knew its manner of transacting business, constitutes strong probative force upon the question of whether or not the defendant was guilty of gross negligence in the safe-keeping of this money.
It is the object of all litigation to promote substantial justice. Neither counsel nor the court conceived or comprehended, as far as the record discloses, the vital issue in the case, and therefore we have concluded to reverse the judgment, with directions for a new trial.
By the Court. — It is so ordered.