Storer v. Gowen , 18 Me. 174 ( 1841 )

The opinion of the Court was drawn up by

Weston C. J.

It is' a principle well settled, that the. admission's of a party, when given in evidence, müst be taken together, as well what makes* in his favor as against him. Both are equally evidence to the jury, who will give to every part of the testimony such credence, as it may appear to deserve. The presiding Judge erred in instructing the jury, that the admissions of the defendant were good evidence against him, but that what he said at the same time in his favor, was not evidence, unless supported by other proof.

It is not alleged, nor did it appear in proof, that the defendant was to have any compensation. As services of this kind are generally gratuitous, it may admit of great doubt, whether a promise, on the part of the plaintiff to make compensation, can be implied.

Assuming that the defendant was to have no reward, it presents a case of what the law calls a mandate, which is a bailment of goods without reward, to be carried from place to place, or to have some act performed about them. In such case the bailee, or mandatary, is responsible only for gross negligence. Story on Bailments, <§> 174, 175. The care required in a bailment of this kind, will depend much upon the nature of the goods delivered. If money is delivered, it is to receive more care than common property. Tracy v. Wood, 3 Mason, 132. Story J. there says, “ that where there is a want of that care, which men of common sense, however inattentive, usually take, or ought to be presumed to take of their property, that is gross negligence.” How much care will, in a given case, relieve a party from the imputation of gross neglect, or what omission will amount to the charge, is necessarily a question of fact, depending upon a great variety of circumstances, which the law cannot exactly define. Story on Bailments, $ 11. It was the province of the jury, and not of the court to decide the question whether gross negligence was, or was not, proved in this case. The presiding Judge erred, in taking this upon himself.

No question is presented, in these exceptions, as to the form of the action.

Exceptions sustained.