their bailors. If the goods are destroyed by fire which is not attributable to his own negligence or breach of duty, and for the loss occasioned by which he is not responsible, the bailee will be looked upon as a trustee for his bailor and will be required to account for the sum recovered after crediting himself with his own charges and with the premiums and cost of collection if any. If, on the other hand, the goods are destroyed by a fire to which his negligence has contributed, the amount which may be recovered from the insurance company will in no way control, but, he must pay to his bailor the full value of the goods whether that value be below or above his recovery. It would seem, too, that the bailor may ratify, as it were, the insurance contract, and though still holding the bailee for the balance, may assert a prior lien or claim upon the insurance fund as against the other creditors of the bailee or pledgee, and as against the pledgee himself. This right to insure, however, is a privilege and a right rather than a duty, and the general rule is that even the depositary will not be held liable for a failure so to do unless the duty is imposed by the express terms of the bailment. An exception to the rule may possibly be found in the case of the guardians and depositaries of the property of infants and insane persons but even in these cases the risk of loss by fire must be apparent and great.s

Where the undertaking of the bailee involves the exercise of professional or mechanical skill in relation to the article bailed, the bailee is required to exercise not merely the skill which he possesses, but that which is generally possessed by the members of his trade or profession in the particular locality, and this obligation is imposed upon the mandatary or bailee for the sole benefit of the bailor as well as upon the bailee for hire. Where, too, goods are loaned gratuitously for use, that use is usually presumed to be limited to the borrower personally and cannot be delegated by him to any one.

§17. Termination of Bailments. Bailments may be

8 Van Zile on Bail., § 177.

terminated: (1) by the agreement of the parties; (2) by the expiration of the time for which the bailment was made; (3) by the accomplishment of the purpose for which the bailment was made; (4) by breach of duty on the part of the bailee; (5) by the death of one of the parties; (6) by the incompetency of one of the parties; (7) by the destruction of the chattel bailed. The parties may of course agree to anything that they may desire and will be bound by that agreement; and examples of bailments which are terminated in this way are very numerous. A sale by the bailor to the bailee of the chattel, which is sometimes given as a distinct method of determination, is, in fact, founded upon an agreement and really belongs to this class.

By Expiration of Time. Where by the terms of the contract the bailee is to return the property at the expiration of a given time, a failure to do so will render him liable as an insurer after such period and to an action in conversion, and no prior demand by the bailor is necessary; and the same is true when there is a breach by the bailee of an agreement to redeliver at a certain time and at a certain place. Where a bailment for hire and for use is for an unlimited period, either party to the transaction may, as a general rule, terminate the relationship upon giving to the other party a reasonable notice. Where the bailment is gratuitous and for the sole benefit of the bailee, the relationship is revocable at any time by the bailor, the only qualification to the rule being, that the right must not be oppressively exercised. A team of dogs, for instance, which is loaned for an indefinite period of time to a person in the Klondike, cannot be reclaimed or retaken while the bailee is on a winter journey, and, in consequence, the bailee is exposed to hardships and suffers loss. In all cases except where the time for redelivery is specified in the contract, or where the goods are fraudulently or tortiously obtained, a demand and a reasonable opportunity to redeliver is required. If after such a demand and the expiration of a reasonable time (which is to be determined by the jury), the bailee insists upon retaining the goods, he will be

liable as an absolute insurer thereof and be deemed guilty of conversion. In all cases the gratuitous bailee, whether the bailment be for his or for his bailor's sole benefit, may terminate the relationship by returning the goods or chattels.

By Accomplishment of Purpose. Where the purpose for which the bailment has been made has been accomplished, the bailment is necessarily terminated and the bailee is bound to redeliver upon request, or may himself tender the article at any reasonable time.

By Breach of Duty of Bailee. It is, as we have before said, the duty of the bailee to be loyal to his bailor and to conform to all the material conditions of the bailment; and any violation of such conditions will, at the option of the bailor, terminate the bailment. Where the act evidences an assumption of ownership, as in the case of the use of an article for a purpose other than that for which it was loaned or bailed, no demand or declaration of the option is necessary other than the bringing of the action, provided, of course, that such an action is brought within a reasonable time after the breach or the bailor has not ratified the act. In all other cases of breach of duty, however, a reasonable notice of the determination to terminate the relationship must be given.

By Death of One of the Parties. In all gratuitous bailments the death of either party will terminate the relationship. In bailments for hire where work or labor is to be expended upon the article bailed, and such work or labor involves personal or professional skill or responsibility, the death of the bailee will terminate the relationship. In similar cases where personal or professional skill or responsibility is not involved, it would seem that, although the death of the bailee presumptively terminates the relationship, and compensation pro tanto (for so much) only may be recovered, the personal representatives of the deceased may, on the one hand and at the option of the bailor, be requested and required to finish the work, if they are able to do so, and that, on the other hand, such repre

sentatives may demand the privilege, if they so desire and if the completing of such work will be of benefit to the estate of the deceased." The same considerations, though reversed, also probably apply in the case of the death of the bailor.10 In the case of the pledge, however, as we shall hereafter see, no termination is implied or presumed. The representatives of a deceased pledgee may enforce the claim and the lien, and the right of redemption will pass to those of the deceased pledgor. In cases of bailments for hire, indeed for other than personal use, it seems doubtful whether the death of either party will in itself terminate the relationship.

By Incompetence of One of the Parties. The insanity, severe illness, or habitual drunkenness of the bailee, since they involve a lack of competency, will terminate a bailment, although in the case of illness or insanity compensation pro tanto may be recovered where compensation is generally provided for, or implied. In the case of a mandate or depositum, the marriage of the bailee or the appointment of a guardian over him or her, will terminate the relationship; and this would also be true in the case of the bankruptcy of either party, except, perhaps, where the bailee is required to exercise a mere authority which does not involve the expenditure of money and with the exercise of which bankruptcy can in no way interfere.11 The illness, drunkenness, insanity, or the appointing of a guardian over the bailor, does not, however, affect the rights or liabilities of the bailee of any class in any way, the guardian in the latter case being merely substituted for the original bailor; and the same is true at common law where a femme sole mandatary or other bailor marries.

By Destruction of the Article Bailed. The loss or destruction of the subject matter of a bailment will necessarily terminate the relationship. This fact, however, does not absolve the bailee from a liability in damages to his

9 Schouler on Bail., § 71.

10 Lawson Contr., § 202; Story Bail., § 205.

11 Parker v. Smith, 16 East. 382; Edw. Bail., 124; Lawson Contr., § 202.

bailor if the loss or destruction is due to a breach of duty on his part.

By Operation of the Law. The purpose of a bailment must always be lawful and in accord with the public policy of the State. It must have been lawful both at the time of the entering into the relationship and the making of the contract, and at the time of, and during, its performance. A statute, therefore, which makes a use unlawful, which at the time of the bailment was lawful, will terminate the relationship. A hiring of a peculiarly constructed beer wagon, for instance, for the express and only purpose of delivering beer, will be terminated by a prohibitory statute which makes such delivery unlawful.

§ 18. The Various Degrees of Negligence Defined. As to what is an ordinary, a slight, or a high, degree of care or as to what is slight, and what is gross, negligence, it is difficult to explain; and the writers are not few who refuse to make the attempt. The real fact is that negligence must always be relative, and that which is gross negligence in one case will often be ordinary care in another. It would, for instance, be gross negligence to leave out of doors and exposed to thieves and to the elements a wagon-load of watches, while it would not be considered negligent at all to leave a wagon-load of stone equally exposed. But so many courts have insisted on a classification, and their classification is so wrought into the law of bailments that we cannot but attempt it here. Gross negligence, then, may be defined as no care at all, or that omission of care which even the most inattentive and thoughtless never fail to take of their own concerns. It evinces a reckless temperament, and where the rights or lives of other persons are concerned, it shows a depraved mind. It is a lack of care which is practically willful in its nature. It is an omission of duty which is equal to fraud. It shows the absence of even slight care.

Ordinary negligence is the want of ordinary care and is the want of such care as persons of ordinary care and prudence observe in and about their own affairs. It con