XXXI BAILMENT. Lewal Gems. Suramar’ of in Chapter NNXT Lecat Gens J, A bailment may be broadly defined as a rightful possession of goods by one who is not the true owner. 2. A typical bailnient occurs when there is delivery of personal- ty for a particular purpose, or on deposit upon & contzet, express or implied, that after the purpose is accomplished, the property shall be returned, 3. A bailment is frequently said to be based on a contract, ex- pressed or implied, but the obligations may be imposed by law irre- spective of the “bailee's” intent; thus any contract in such situations is implied by law and not in fact. 4. ‘The baile must be in possession of the goods. 5. In order to have possession there must be physical control over the property in question, and an intention to exercise that con- trol (a) Control, for example, is an issue when goods are depos- {ted in a safe deposit box where both the customer and the bank have keys. Courts frequently fold this a bailment although the bailee does not have complete control, and no way of knowing what is in the box. ‘The baile does intend, however, to control the coutents whatever they are. (b) There also must be an intent to exercise control. Thi issue is eritical in bailments of parcels or other chattels contain- ing therein items of which the “baile” is unaware, and in situa- tions where the depositary attempts (© prevent himself from be- coming a baiiee of the particular item. 6. follows: A bajlment is distinguished from other legal relationships as (a) Custody—When the owner of goods places them in the actual physical contro) of another, but does not intend to relin- quish the right as distinet from ‘the power of dominion over them, there is no bailment or possession but only custody. For example, if a clerk hands goods to a customer to examine, the customer has only custody, Similarly, an employee has only cus- tody of his employer's Boyer an of Pp FATS690 PERSONAL PROPERTY Part 5 (b) Sale—tn a sale, title passes to the purchaser; in a bail- ‘ment the title remains in the bailor (c) Conditional Sate—A purchaser under a conditional sales contract acquires not only posaession but also beneficial interest in the goods for which he is under an obligation 10 pay. The conditional seller retains iegal tite tor security only. {aj ‘Trust—A trustee acquires legal title for purposes of performing his duties as trustee; a bailee has only possession. (c) Lease—A landlord-tenant relationship and not 2 bail- ment results if there is simply a lease of space for use by the tenant, ‘The automobile parking tot situation results in a land- Jord-tenant, or licensor-ticensee relationship in the case of a pavk-and-lock operation. In this situation the owner of the car ‘keeps the keys, along with control and constructive possession of the automobile. If the keys are surrendered to the attendant and he assumes control of the car, then a bailment results In a lease of personal property where the lessee acquires possession of the goods with an obligation to return them, the lessee is a bailee of the chattels. 7. Although criticized, batlments are frequently classified ac- cording to which of the parties derive (he most benefit for purposes of imposing liability for negligence on the bailee. According to this, scherte, if the bailment: (a) is for the sole benefit of the bailor, the bailee is liable only for gross negligence; (b) is for the sole benefit of the bailee, the baile is liable for even slight negtigence; (c) is for the mutual benefit of both the batlor and baile, the bailee is liable for ordinary negligence, or failure to observe ordinary care, the care that would be exercised by a reasonably prudent man under the circumstances. ‘The trend is for this standard in all cases. 8. The parties by contract may alter the standard of care owed by the hailee where not contra to public policy. To so contract both parties must accept the terms, and where only a sign is posted by the baile, there must be proof that the bailor saw and accepted its terms, A limitation of liability on a check or receipt for the bailed goods is only valid if the bailor read the ticket and didn’t object, or if a reasonable man would expect @ contract under such circum stances, 9. The bailee has a duty to redeliver the goods to the bailor on demand, or if a fixed term has been set for the bailment by contract, at the expiration of that term, 10. The bailee is liable for conversion, regardless of negligence, if he wrongfully refuses to deliver or if he delivers to the wrong par- ty.Ch. 31 RAILMENT 691 11, Liability of the bailee is based on nealigence if the goods re fost, destroyed or damaged during the bailment, The burden of proof is normally on the bailor, but onco he has proved delivery of the goods and failure to return them, or redelivery in a damaged con dition, he has made a prima facie ease. At this point, the burden of going forward with the eviderie shifts (0 the baile. See, however, infra case 329, putting the burden of proof on the bailee to show he was not negligent CASE 329: A wished to have B mpair a ring while B was staying at the € hotel. A took the ring off her finger in the presence of the hotel cashier and asked her to deliver it to B. The cashicr placed the ving in an envelope, wrote B's name on it, and placed it on her desk. ‘The ring was either lost or stolen without being delivered to B.A sues the C hotel to recover $2,509, the value of the ring, C defends by yitig there was no bailment because A failed to disclose the unusual value of the ring. May A recover? Answer and Analysis ‘The answer is yes. A bailment has been broadly defined as the ‘ghtful possession of goods by one who is not the owner. This pos- session of the bailed goods consists of physical control of the chattel with an intent to exervise that control, Where the chattel claimed to be bailed is concealed from the baile, he will not have intended to as- ‘sume possession and no bailment will exist. For example, in one case the plaintiff deposited her coat with a fur piece hidden in the sleeve In the defendant’s cloakroom, and it was subsequently lost. ‘The court held there was fio mutual assent to accept the fur, hence no ailment of the fur. In the instant case, there is no question as to the identity of the thing, bailed, namely a ring, but only as to its val- ue, Hence there was an inten! ott the part of the bailee to accept possession of thy ring, resulting in a bailment, and an erroneous esti- mate of its value will not volease the baile from liability The next question is as to the type of builment and the degree of care owed by the baile, Formerly, it had been customary to distin- guish bailments on the basis of who derived the principal benefit from the relationship. If the bailment was for the chief benefit of the bailor, then the bailee owed the duty of slight care and was liable only for gross negligence. If the bailment was for the mutual benefit of the parties, then the bailee owed the duty of ordinary care and was liable for ordinary negligence. It the bailment was for the sole bene- fit of the bajlee, then he owed the duty of greut care and was liable Jor slight negligence. ‘This classification has boen largely discarded, and the standard of ordinary care and the liability for ordinary negti- ence is imposed in the great majority of cases. Nevertheless, in the Instant case, the bailment was one for the benefit of both parties ‘The ring was accepted by the hotel in the ordinary course of its busi-