Negligence, Of gratuitous bailee. Bailment, Gratuitous. Conversion.
Where in the crowded lobby of a theatre a person was handed a box containing a pair of diamond earrings and was asked to examine and appraise them without reward and where as he was handling them he "dropped one of the earrings and it was lost," such person, who was only the gratuitous bailee of the earrings, cannot be held liable to their owner for the loss, there being no evidence to warrant a finding of gross negligence on his part.
In the case stated above there was a count for an alleged conversion, and there was evidence that the plaintiff demanded of the defendant the return of the earrings and that the defendant then said that, if the plaintiff would refrain for a short time from bringing an action against the defendant for the loss of the earrings, he would pay the plaintiff for them a sum of money named, that the plaintiff did so retrain for such time but that the defendant did not pay to the plaintiff the sum named nor return both or either of the earrings. Held, that there was no evidence of a conversion of both earrings by the defendant.
In the same case there was evidence that the defendant, being in possession of the remaining earring, refused upon the plaintiff's demand to deliver it to the plaintiff, and there also was evidence that the defendant delivered this remaining earring to a person not authorized to receive it. Held, that on this evidence a finding that there was a conversion by the defendant of the remaining earring was warranted.
In the same case it was held, that, as the defendant properly could be held liable for the value of one earring at the time of its conversion, the trial judge was right in refusing to rule "that upon all the evidence judgment must be directed for the defendant."
PIERCE, J.
The defendant assumed at most the obligation of a gratuitous bailee when, in the lobby of a theatre crowded with people, he received from one Wyner a pair of diamond earrings in a box and at the request of Wyner then and there undertook to inspect, examine and appraise them without reward. Foster v. Essex Bank, 17 Mass. 479. The duty which the law imposes on gratuitous bailees is that the bailee shall act in good faith, that is, shall use the degree of care in the performance of the undertaking which is measured by the carefulness which the depository uses toward his own property of similar kind under like circumstances. Foster v. Essex Bank, ubi supra. Whitney v. Lee, 8 Met. 91. Smith v. First National Bank in Westfield, 99 Mass. 605.
In an action of contract or of tort for breach of duty imposed by law, the mere fact "that the defendant dropped one of the earrings and it was lost," is not sufficient evidence of his gross negligence to warrant a finding for the plaintiff. The finding of the judge "that the defendant, in handling and dealing with the earrings did not exercise such care as a reasonably prudent man would have exercised under the circumstances," imposed upon the defendant, a gratuitous bailee, a standard of care which measures the duty of a bailee for hire. This was manifest error.
Upon the reported facts the failure to return the lost earring is not a conversion. "The action of trover is not maintained by proof of negligence, but only of misfeasance amounting to a conversion." Foster, J., in Hall v. Boston Worcester Railroad, 14 Allen, 439, 443.
As regards the other earring, the facts found warrant a finding that the defendant, in the possession of the earring, on demand refused to deliver it to the owner, the plaintiff. Moreover, the testimony of the defendant would warrant a finding that he delivered the earring to a person unauthorized to receive it by the owner or by the person from whom the defendant received it. An action of trover will lie upon either view of the facts. Devereux v. Barclay, 2 B. Ald. 702. Claflin v. Boston Lowell Railroad, 7 Allen, 341. Saxon Mills v. New York, New Haven, Hartford Railroad, 214 Mass. 383, 391, and cases cited.
At the close of the evidence the defendant asked the judge to rule "that upon all the evidence judgment must be directed for the defendant." In effect, this was a request to rule that the evidence was insufficient in any legal form of declaring to justify a finding for the plaintiff for any amount. Ideal Leather Goods Co. v. Eastern Steamship Corp. 220 Mass. 133. Brown v. Pelonsky, 210 Mass. 502, 506. The request was refused rightly.
However, it is manifest that judgment should not be entered for $85, the value of both earrings, but should be in such amount as upon hearing shall be determined was the value of the single earring at the time it was converted. Loanes v. Gast, 216 Mass. 197, 199.
It follows that the order of the Appellate Division of the Municipal Court of the City of Boston, "Report dismissed," must be affirmed.
So ordered.