
    Harriet L. Griffith v. Zipperwick and Lodge.
    1. In case of a deposit of property, to be kept by the bailee without reward: and returned to the depositor on demand, the law holds such a bailee liable only for losses arising from his gross negligence.
    
    2. What will constitute such gross negligence must be determined as & question of fact, in each particular case, -by the jury, under proper-instructions from the court.
    3. Good faith requires, generally, that such a bailee should keep the goods intrusted to' him, with as much care as he ordinarily keeps his own, of the same kind. And he should also keep them with such degree-of care as is reasonable, with reference to the nature of the goods, and. the particular circumstances of the bailment.
    4. On the trial of an action brought to recover the value of certain government bonds, deposited by the plaintiff with defendants as gratuitousbailees, and which were stolen from the vault of their banking-house by burglars, the evidence tended to show that the plaintiff’s bonds, when deposited, were inclosed in a tin box, fastened with a padlock, of which-the plaintiff retained the key; that defendants had a small burglarproof safe in their vault, in which they kept similar bonds of their own and other depositors, which were all inclosed in paper envelopes, but that plaintiff’s box, and similar bonds of another depositor, also inclosed in a box, were kept in the vault, outside of the burglar-proof safe, such other depositor consenting that his box should be thus kept. Held, tbatthe court did not err in refusing to instruct the jury that these facts, if proved,-would be conclusive evidence of a want of good faith or of gross negligence, and would require a verdict for the plaintiff; nor-was it error to instruct the jury that they might properly take the character of plaintiff’s package or box into consideration.
    5. Where statements of fact are made in the presence and hearing of a. party who may have had no previous knowledge of the truth or falsity of such statements, his silence is not an admission that he previously had knowledge of the existence of the facts thus stated.
    Error to the Court of Common Pleas of Columbiana county. Reserved in the district court.
    The original action was brought by plaintiff in error against the defendants in error, as partners in the banking-business, to recover the value of certain United States bonds, the property of the plaintiff, which she alleged in her petition, had been deposited by her with the defendants, at their banking-house, to be taken-care of, and returned to her on demand, and which, whilst so in the custody of the ■defendants, were, through their negligence and want of •proper care, on the 8th day of November, 1867, stolen, and thereby became lost to her.
    The defendants answered, first, denying specifically the material allegations of the petition. For a second defense they say that “they do not know whether the plaintiff, on the 8th day of November, a. d. 1867, was the owner of the ■bonds described in the petition or not, and they therefore ■deny the same, to compel strict proof to be made thereof. And defendants say that some time previous to said 8th ■day of November, a. d. 1867, Ann J. Begges, the mother of the plaintiff, brought to their office, in New Lisbon, Ohio, ■which is a broker’s and exchange office, a tin box which •plaintiff claims contained her said bonds; said box was locked with a padlock, and the key of the same was kept-in the possession of said Begges. Said Begges, at said time, asked of defendants the privilege of placing said tin box, so locked as aforesaid, in their vault, in said office, which they granted, and said tin box was, in accordance with said request, placed in their said vault, and remained there, with the knowledge and consent of said Begges, except when taken out by her, until the 8th day of November, 1867, when the said vault, without the knowledge or consent of the defendants, or their fault, was broken open in the night season, and said box wasbroken open. Defendants further say that the said Ann J. Begges had resided in New Lisbon a great many years, and was acquainted with their said vault and its security; that they were not to receive, and ■did not hope or expect to receive, any compensation or reward for keeping said tin box; that the keeping of bonds and other valuables as special deposits was no part of their said business, but that in some instances they have received them for the accommodation of friends, and kept the same ^gratuitously and at the risk of the owners thereof; and that in receiving said box, and placing the same in their said vault, they acted in good faith; and that by reason of the premises they are not liable for any loss the plaintiff may have sustained.”
    The exculpatory matters alleged in this defense were-traversed by a reply. A trial of these issues of fact by a jury resulted in a verdict and judgment for the defendants..
    To reverse this judgment, the plaintiff filed her petition in error in the District Court of Columbiana county, where-the case was reserved for decision here.
    The errors assigned relate solely to the charge of the court, a,od are:
    
      First. That the said court, on the trial of said case, erred, in refusing to give the instructions to the jury, which the said plaintiff prayed the court to give, as set forth in her bill of exceptions.
    
      Second. That the said court erred in the instructions- and charges given to the jury, as set forth in said bill of exceptions.
    A bill of exceptions taken by the plaintiff on the trial shows that the plaintiff gave evidence tending to prove the following facts:
    “ That about the year 1861, Mrs. Ann J. Begges, the mother of the plaintiff, was the owner of a small tin box, about eight inches long, four inches wide, and five inches high, in which she kept valuable papers, as deeds, mortgages, and promissory notes; that the defendants, with Benjamin W. Pritchard and John Eerrall, under the name of Lodge, Pritchard & Co., were engaged in the banking-business, as private bankers, and the firm so continued until 1864, when Eerrall went out, and in July, 1867, said Pritchai’d went out, and since then, to the commencement, of this suit, the defendants have carried on the business of banking at New Lisbon, the county-seat of Columbianacounty, Ohio; that the said defendants’ banking office, it being the same office as that occupied by Lodge, Pritchard & Co., consisted of two rooms, one behind the other, on the-ground floor, in a three-storied brick building, in said town ; that the rooms were connected together by a door opening from the front into the rear room; and connected with the; offices was a vault which had been constructed by former proprietors of the banking-house, for the purpose of depositing the moneys and valuables of the bank; that about the year 1862, the said Mrs. Begges deposited with the defendants for safe keeping, without reward, the said tin box and contents, the box being locked, and she keeping the key; that the box was kept, and remained in the defendants' vault from that time on, up to the time of the robbery, the night of the 8th day of November, 1867, but was taken out by Mrs. Begges to her house in said town as occasion required, from time to time, either by herself in person, or by the plaintiff, who mostly resided with her mother, or by a daughter of the plaintiff, or by one James Clarke, an attorney who did business occasionally for Mrs. Begges, and returned again to the bank, at no time being kept out of the bank more than a week or two; that the defendants, about the year 1864, purchased for Mrs. Begges certain bonds known as five-twenty bonds, issued by the United States of America, to the amount of four hundred dollars, which were, with the defendants’ knowledge, by her placed and kept in the said tin box; that a year or two thereafter, Mrs. Begges became possessed of certain other bonds, issued by the said United States, known as seven-thirty bonds, to the amount of twelve hundred dollars, which she also, with the defendants’ knowledge, placed and kept in the said tin box. That the plaintiff, in the fall of the year 1863, deposited with the defendants for safe keeping on special deposit, without reward, certain bonds, issued by the said United States, and known as five-twenty bonds, to the amount of twenty-three hundred dollars, which were delivered to the defendants in an envelope, and which they kept in their said vault, along with their own bonds and money, and the- bonds of a number of other depositors; that in the spring of 1865, the plaintiff bought of the defendants certain other bonds, issued by the United States, and known as ten-forty bonds, to the amount of one thousand dollars, which were also placed in said envelope; that in the spring of the year 1866, the plaintiff also bought of the defendants certain other bonds, issued by the United States, and known as seven-thirty bonds, to the amount of three hundred dollars, which were also placed in said envelope ; that in the spring or summer of the year 1866, the plaiutiff, with the knowledge of the defendants, and with the consent of her mother, Mrs. Begges, placed her said bonds in her mother’s said tin box, along with her mother’s bonds and papers, and they were thus kept in the defeudants’ vault, with their knowledge, without other contract or agreement, until they were stolen therefrom, the 'night of the 8th of November, a. d. 1867; but that before that time, about the 27th day of March, 1867, at the advice of the defendants, the plaintiff took the seven-thirty bonds belonging to her mother and to herself to the city of Cleveland, where she had a brother residing, and exchanged them for five-twenty bonds, which she at once brought back and placed in the tin box. That the bank vault had originally been built and constructed with two iron doors, the outer door being considered at the time of construction as good as was then made; the second door was behind the first in the passage-way leading into the vault; that afterward, the then proprietors and builders of the vault, not the defendants, added a third door behind the second door, and at the innermost end of the passage leading to the vault, and which was made of heavy plank, lined with iron ; that some time before the defendants got possession of the bank, burglars had tried to effect an entrance into the vault by digging up from the cellar; that they made entrance between the two iron doors, broke open or blew open with gunpowder the second or middle door, but failed to get the third, or plank door open; and that the vault was not entered at that time, or plundered ; that the former proprietors, to guard against future incursions of that kind, built up a solid wall of masonry, underneath the passage-way to the vault; that the defendants, at the time of their occupying said rooms as a banking-house, and before purchasing their burglar-proof safe, had learned of this attempt to break into the vault; that the defendants became impressed with the belief that the vault was insecure and not burglar proof, and in the month of September, 1866, for further security, and at the suggestion of one of the former proprietors of the bank, who, from hearing of repeated bank robberies, had lost faith in the safety and security of the vault, the defendants bought a burglar proof iron safe, and .placed the same in their said vault, and in which safe there.after they kept their own money and bonds, and the bonds of twenty or thirty third persons, left with them on special deposit, to be kept without reward, save the bonds of the plaintiff and her mother, which were in the tin box, as stated, and the bonds of one Thomas White. That directly after the defendants placed the said safe in the vault, they •took off and removed the said third, or plank door, and which was off at the time of the robbery aforesaid.
    That the outer door to the bank was an ordinary wooden door, with common heavy lock ; that the windows opening into the yard in rear of back room were ordinary windows, with ordinary wooden paneled shutters, fastened by a wooden bar in iron projections on the shutters; that the former proprietors of the bank, .to the defendants’ knowledge, had for the greater part of the time a man (the said Thomas White) sleeping in the bank of nights; that when the defendants got possession of the banking-house they spoke to White about sleeping in the bank for them, but he refused, and defendants never did have any person sleep in the bank, nor did they have a watchman.
    That the defendants did not notify the plaintiff or her mother of the fact that they had the burglar-proof safe, or that they had taken off’ the door aforesaid of the vault, :and that the plaintiff and her motherwere ignorant thereof; ■nor did the defendants ever notify any person interested in the box of their want of confidence in the security of the vault. That the burglar-proof part of the safe was in dimensions about 21J inches high, 17 inches wide, and 12J inches deep, and was large enough to hold the tin box aforesaid. That some time before the robbery the said ‘Thomas White bought of the defendants certain bonds of the United States of the character of the plaintiff’s to the-amount of $400 ; that defendants told him they had no envelope on hand large enough to contain them; that White put his bonds in a small paper box, and handed it to the defendants, who then notified him that they could not put the box in their safe, and the paper box was set in the vault.
    That on the night of the 8th day of November, 1867, some person entered the bank through the window in the back office by prying open the shutters, but without breaking them; broke open the doors of the vault, and rifled the said tin box of the bonds of the plaintiff" and her mother, and the bonds of White out of his paper box; tried to open the burglar-proof safe, but did not, and that no property of defendants, or any other depositor, was stolen, because theirs were all in the burglar-proof safe; that the plaintiff’s bonds were not registered bonds, and passed as money by delivery, and none of them were ever recovered. That soon after the robbery, the defendant, Abel Lodge, called to see the plaintiff" in regard to the loss of the bonds, and to procure a list of them, and he did not then say anything about having had no knowledge of the plaintiff’s bonds being in the tin box, and did not at that time claim that he was ignorant that the box contained plaintiff’s bonds; that he then asserted they had taken all precautions to keep the bonds safe ; that the plaintiff then said to him that she had left her bonds with him for safe-keeping, and that she expected them to be returned to her, to which he made no reply or denial. That the bonds were of the value set forth in the petition. That a few nights before the robbery, and in the same week thereof, and on other occasions prior thereto, the defendants had left the windows to the back office open, with the sash raised, all night.
    And the defendants, to maintain the issue upon their part, gave testimony to the jury tending to prove the following facts, viz :
    That they had perfect confidence in the safety and security of their vault up to the time of the' robbery, but bought the safe for further security; that they generally aimed to keep their own bonds and money in the safe after it was put in the vault; that frequently,after the safe was-locked up at close of banking hours, deposits of money were made by parties on general, deposit, and bonds purchased by them of parties coming in to sell, and that upon such occasions they would not go to the trouble of opening the safe, but would put such money or bonds on the safe, or on the floor of the vault, over night, ranging from small sums up to $3,000 or $4,000, but could not name any particular occasion. That they had no other special deposits of bonds in boxes except Thomas "White’s; that all other-special deposits of bonds were in envelopes; that the plaintiff’s bonds were left with them in an envelope, and kept in the vault with the others and their own until they got the safe; that when they got the safe they put into it their own bonds and the bonds on special deposit in the envelopes, and the plaintiff’s bonds in her envelope; and that the plaintiff’s bonds in said envelope were kept by them inside the safe until the latter part of March, 1867, when she came into their bank and said that she and her mother were going to send their bonds to her brother Adam, in Cleveland, to be kept there; that she asked for her bonds and her mother’s box; that defendants gave her the tin box, and her bonds in her envelope; that she took them away ; that they did know Mrs. Begges had bonds in the box prior to March, 1867, but that the plaintiff' never had any bonds in that tin box to their knowledge, at any time that the said tin box was not brought back to the bank until September, 1867, and that they had no knowledge at that time, nor afterward, that the box contained any bonds whatever.
    That when the box would be brought back to the bank at the various times, the persons bringing it would ask defendants to set it in their vault, and they would do so; that a short time before the robbery the box was taken out, and that Mrs. Begges brought it back and asked them, defendants, to set it in the vault, saying that she was going to-leave town, and did not want to leave it at home for fear of fire ; that the safe was made only for valuables, had some pigeon-holes in it, a small drawer, and a shelf, and was filled with their valuables, and those on deposit as aforesaid; that they kept their United States revenue stamps in the vault, in a pigeon-hole, and on the night of the robbery had of such stamps on hands from $600 to $1,000 worth, which were not disturbed by the burglars.
    That the box, while on deposit with the defendants, was .always locked, and that Mrs. Begges had the key, and defendants had no access to the box, Mrs. Begges taking .away the box and returning it at all times when it suited her convenience.
    That the third door on the vault, which was removed, was a poplar door, made of wide plank, one and a half inches thick, and covered with sheet-iron — upon the out,-side with No. 16 iron, and on the inside with No. 24, and was put on as part of the lining to prevent dampness.
    That the blacksmith who took off the door at the time the safe was put in, afterward, and before the robbery herein complained of, made a special deposit of from $3,000 to $4,000 in govérnment bonds in the vault and out.side of the safe with the defendants, but which he took away before the robbery. The said bonds were by agreement to be kept in the vault outside of the safe.
    That Mrs. Begges, the owner of the box, requested that it should be placed in the vault of defendants, and never requested it to be put in any other place; that the defendants always kept the box in the vault when placed in their •charge, and that it was there on the night of the robbery; that the defendants, before the robbery, were not impressed with the belief that the vault was insecure, and that they had no knowledge of any bonds, either- belonging to Mrs. Begges or the plaintiff, being in the box when last deposited with them, or on the night of the robbery; that Mrs. Begges’ box was broken open the night of the robbery; that no bonds were in it the next morning, and that defendants never saw such bonds afterward, nor knew what became of them; that the vault was locked' up the night of the robbery, and that the robbers forcibly broke it open by wedges, levers, and other burglar’s tools and that a large amount of other testimony was given both by plaintiff and defendants, but no testimony was offered by defendants tending to prove any contract as to where and how the tin box was to be kept by them, except as. above stated.
    In rebuttal, the plaintiff gave testimony tending to disprove the alleged conversation at the bank in the latter part of March, 1867, and the taking away by her of her bonds and her mother’s box, as attempted to be proved by defendants, and also tending to disprove that the box was-out of the bank until September, 1867.
    The instructions asked by plaintiff in error, and those given by the court, on which the questions in this case-arise, are sufficiently stated in the opinion.
    
      R. P. Ranney, for plaintiff in error :
    1. The court erred in refusing the eighth request of the-plaintiff, respecting the statement made to Lodge and his-silence. 1 G-reenl. Ev., secs. 197, 199.
    2. The court equally erred in refusing each of the other requests. The first three are a simple statement of the general principles of law, as laid down in the most approved authorities, and the others are but the application of those principles to the case. 2 Kent Com. (11 ed.) 560; Story on Bailm., secs. 63-65, 77, 79; Ed. on Bailm. 47, 67-69; Redfield on Bailm. 491; 2 Parsons on Con. 93, note; Coggs v. Bernard, 2 Ld. Raym. 715.
    3. Without a word of proof in the case as to what other bankers did, or were accustomed to do, the court over and over again made the liability of the defendants depend upon what such bankers did or would -consider prudent. This was error. Bain v. Wilson, 10 Ohio St. 14; Walker v. Stetson, 14 Ib. 89; B. & O. R. R. v. Whittaker, 24 Ohio St. 651.
    4. The court made the kind of packages, in which the-bonds were put, decisive of the applicability of the doctrina for keeping them as they did their own, or as they kept other deposits, or as bankers were accustomed to keep like deposits, which was error.
    5. As it was admitted that the plaintiff’s bonds were in a tin box, and the defendants’ and other depositors in envelopes, the court took the whole question from the jury by deciding that “ bonds deposited in boxes are not the same as bonds deposited in envelopes,” which was usurping the province of the jury, and error.
    6. As it stood conceded that the plaintiff knew nothing of the introduction of the safe, it was error to set the jury upon an inquiry as to her expectations, and to charge them if she did not expect it to be put in the safe, that defendants were not obliged either to put it there or notify her.
    7. The jury were charged that if the vault remained as good as when the box was deposited, and the defendants had no reason to suppose the plaintiff labored under a delusion as to its safety, they were not under any obligation to notify her they had a safe, or put the box in the safe. Thus ignoring the defendants’ belief as to the safety of the vault as beariug upon their fidelity. This was error.
    8. There was error in the charge that if the box was directed to be set in the vault, in ignorance of the fact that there was a safe there into which the defendants had put their bonds, that they were justified in leaving hers out, or that she was in any way bound. Story on Bailm., sec. 77.
    
      J. H. Wallace, for defendants in error :
    "We think that we may safely assert that the court, in its charge, did not refuse to give the instructions asked for by the plaintiff’, but in it will be found substantially every request of the plaintiff, except the eighth, which the court very properly refused to give, it not being the law.
    Under the eighth request of the plaintiff, the court is asked to charge that the failure of Lodge to reply to the assertion of Mrs. Griffith, “ that she had left her bonds in his hands for safe keeping, and expected them to be re■turned,” would be regarded as an admission of the fact •that he knew the bonds had been left with him in the box for safe keeping.
    The best authorities concur that this kind of evidence is very uncertain, and must be carefully scrutinized, and its weight always left to the jury.
    It seems to us that this proposition is too well settled to admit of any doubt. 1 Greenl. Ev., sec. 199; 18 Barb. 250; Law v. Merrills, 6 Wend. 268; Jewett v. Banning, 23 Barb. 13; 21 N. Y. 27.
    That part of the charge which has reference to the kind of care which it is claimed the defendants should have taken of the box, if they had reasonable ground to believe, or did know, that it contained bonds, resolves itself into the proposition, whether the defendants, who are conceded to be dejoositaries without compensation, were guilty of gross neglect or carelessness in the care which they took of said box. In support of this proposition, the court is referred to Story on Bailm. (8 ed.), sec. 23; Foster v. Essex Bank, 17 Mass. 479; Giblin v. McMullen, 2 Law Reports, Privy Council Appeals, 317; Johnson v. Reynolds, 3 Kan. 257; Tompkins v. Saltmarsh, 14 S. & R. (Penn.) 275; Wiser v. Chesly, 53 Mo. 547.
    
      John Clarke and W. A. Nichols, also for defendants in error:
    Did the court err in the alleged refusal to charge as requested ?
    Let us test this matter by the three following rules furnished by our supreme court:
    1. “It is not error to refuse to charge as requested, unless the proposition requested and refused be absolutely true under all reasonably conceivable circumstances.” 19 Ohio St. 438, 442, 452; 20 Ohio St. 508, 515.
    2. “ When a court has charged a jury upon a point, and afterward an instruction is prayed, which, in substance, is the same as the charge given, it is not error to decline giving it.” 1 Ohio St. 66.
    
      3. “ It is not error for the court to refuse to'give the jury, in its charge, a true and pertinent proposition of law asked by counsel, provided it appears from the whole charge that the court fairly and fully stated the law applicable to the case, although in different form and language.” Bond v. The State, 23 Ohio St. 349.
    Were these requests to charge “ absolutely true,” as required by the above rule ?
    The first four of these requests are what plaintiff conceives to be the true legal definition of gross negligence* And gross negligence is conceded to be the measure of defendants’ responsibility.
    Courts have found great difficulty in defining this phrase, and in establishing rules to fix the degrees of diligence required by bailees. Story on Bailm. (7 ed.), secs. 11, 17, note 3; 18 Mo. 177; 2 Parsons on Con. (6 ed.) 91.
    The test of defendants’ liability, as furnished by the first four requests to charge, is, the degree of care they usually took of Iheir own and the care they usually took of the like property of others — thus making the defendants’ own ordinary conduct the standard by which to determine their responsibility in any particular case.
    This is not the correct rule. 2 Kent Com. (12 ed). 560— 562; Foster v. Essex Bank, 17 Mass. 479; 2 Parsons Contracts, 89, and note e; Story on Bailm., secs. 62-67; Scott v. National Bank, 72 Penn. St. 471; Giblin v. McMullin, L. R., 2 P. C. 317; Coggs v. Bernard, 2 Ld. Raym. 909; 1 Smith’s L. C. 359.
    The seventh request was not good law. 19 Ohio St. 438. Neither was the eighth. 1 Greenlf., sec. 197.
    On the question of liabilities of bailees, as involved in the-charge of the court, see Wharton on Negligence, sec. 470; Coggs v. Bernard, 2 Ld. Raym. 909; 2 Kent Com. 562; 2 Parsons on Con. 91; Giblin v. McMullin, 2 P. C. 317.
   Scott, J.

The bailment out of which the action in' the court below arose, was what is known as a deposit. The property bailed was delivered to the defendants to be kept without fee or reward, and returned to the plaintiff, by whom the bailment was made, on demand. Such a bailment being for the sole benefit of the bailor, the law holds-the bailee liable only for losses attributable to his gross negligence. It was so held by Lord Holt, in the celebrated case of Coggs v. Bernard, 2 Ld. Raym. 715; 1 Smith’s L. C. 369; and with this doctrine all the subsequent text-books on the subject of bailments agree.

But what constitutes gross negligence can not be determined by any rule which will furnish a reliable test in all' cases. It must be determined as a question of fact in each particular case by the jury, under proper instructions from the court. The degree of care due from the depositary depends-upon circumstances, such as the nature and quality of the-goods bailed, and the character and' customs of the place-where they are to be kept. The duty devolved upon the bailee by a mere deposit is thus stated generally by Justice-Blackstone: “He is to keep the goods as his own, and if robbed of them, or they are stolen without his fault, he is-not responsible. But he must observe a reasonable degree-of care, as in other cases, with reference to the nature-of the goods, and the particular circumstances of the bailment.” 2 Black. Com. 453. "We regard this as a correct and brief summary of the duty of such a bailee. He is bound, as are the parties to all contracts, to the exercise of good faith; and if he keeps the goods intrusted to him with less care than he keeps his own, of the same kind, this is-a circumstance from which a jury might well infer a want of good faith; but the keeping of them as his own, is, as was said by Lord Holt, an argument of his honesty. And the-'Roman or civil law required nothing more. But it has been, justly held, both in this country and in England, that it will not exempt the depositary from liability for gross negl i - gence, that he has kept the deposit in the same place or with the same care that he has kept his own property. In the case of Doorman v. Jenkins, 2 Adolph. & Ellis, 256, Chief Justice Denman told the jury that it did not follow from the defendant having lost his own money at the same time as the plaintiff’s, that he had taken such care as a reasonable man would ordinarily take of his own, and that the fact relied on was no answer to the action, if the jury believed that the loss had occurred from gross negligence. That was a case in which a coffee-house keeper received a deposit of money, and placed it in his cash-box, in his taproom, in which he kept his own cash, and both were stolen together. A verdict was found for the plaintiff, and the instruction was held right by the whole court. See also Story on Bailm. 58.

The term gross negligence is scarcely susceptible of legal definition; but there is a degree of care (indefinitely varied by the nature of the deposit and the circumstances of the case), which the depositor has a right to expect from the depositary, the want of which is so designated, and will render the depositary liable if a loss results therefrom.

This we think is so, irrespective of any actual fraud or intentional bad faith. It is a breach of the contract or obligation, which the law implies from the bailment, in the absence of an express agreement to the contrary.

The errors assigned in this case are: 1. That the court refused to give to the jury the instructions asked for hy counsel for plaintiff, except in so far as the same are embraced in the general charge given by the court; and, 2. That the court erred in the instructions given to the jury.

The first four instructions asked for, are as follows :

1. A banker, or other person, who, for the accommodation of another, and without reward, receives United States bonds on special deposit, is bound to take the same care of them that he usually takes of his own. If he does not take the same care of them that he usually does of his own, and they are stolen, he is liable to the depositor for the value of the bonds, at the time of the theft, with interest.

2. A banker, or other person, who receives United States "bonds on special deposit, to be kept without reward, is "bound to take the same care of them that he usually bestows on property of that kind for others without reward; and if he does not take the same care of them that he usually does of others, and they are stolen, he is liable to the owner for their value at the time of the theft, with interest.

3. Notwithstanding a bailee of money or goods takes the same care of them that he does of his own, still if he did not take that care of the money or goods that bailees without reward usually take of such property, or that he himself usually took of such property of others, under such circumstances, he would be liable to the owner for the value of the property at the time of the theft, with interest.

4. If the defendants knew, or had reasonable grounds to ■presume, that the tin box contained United States bonds, ^although they did not have the key to the box, they would be bound to take the same care of it they usually took of like bonds of others on special deposit with them without reward, or which they usually took of their own, and if they did not take this care, and loss ensued, they would be liable.

These several instructions were substantially given to the jury in the general charge of the court, with a single modification, which we think was entirely proper. The jury were instructed to take into consideration the character of the package in which the plaintiff’s bonds were contained; that the thing deposited was a tin box, with its contents; that this box was fastened with a padlock, of which the plaintiff retained the key, so that defendants had no power to care for the bonds any further than they could reasonably care for such a box. The evidence in the case tended to show that the defendants kept their own bonds of the same kind, together with similar bonds belonging to other depositors, in a small burglar-proof safe. But these bonds were all in paper envelopes, which were compressible ; the tin box was incompressible. It might be convenient, and therefore reasonable, that valuable papers in envelopes should be kept in the small burglar-proof, whilst it might be very inconvenient, and therefore not to-be expected, that boxes such as that in which plaintiff's bonds were placed by her should be kept in the same place. No evidence was offered on the trial,.so far as appears, that the defendants ever kept any boxes containing bonds or other valuables, either of their own or other depositors, in their burglar-proof. On the contrary, the only other depositor of bonds in a box appears to have been a Mr. White, and the evidence offered by the plaintiff herself went to-show that the defendants, at the time of receiving it, informed the depositor that they could not put it in their safe,, and it was accordingly set in the vault, where the plaintiff’s box was placed. But the court clearly instructed the jury, that the defendants “ were bound to place the plaintiff’s box where bankers of common prudence, without hire, would have ordinarily placed it, had it been received by them under similar circumstances.” The court also charged1 the jury, that in the absence of any special agreement on the subject, the defendants were bound to take the same care of the plaintiff’s box containing her bonds as they usually took of their own property of the same kind, kept in similarpackages — that is, in boxes, as the plaintiff’s were; also, that “ they were bound to take the same care of plaintiff’s box that they ordinarily bestowed upon the bonds, of others which were deposited in the same manner that these wereand for a loss resulting from a want of such care, in either of these respects, the jury were told that defendants must be held responsible. The evidence in the case .also tended to show that the plaintiff’s bonds were kept by the defendants in their burglar-proof so long as she-kept them in paper envelopes, and were left in the vault, outside of the burglar-proof, only when she placed them in her mother’s box, which had been deposited .with defendants before they procured a burglar-proof, and had never been kept therein. In this state of the evidence, we think the plaintiff has no right to complain of the instructions given to the jury, which measured the care due from the--defendants by that ordinarily taken by themselves and other depositaries of common prudence, of the same kind -of property of their own, or of depositors, when inclosed in packages substantially of the same character with the box deposited in this case. It was for the jury, and not for the court, to say whether, in the light of the evidence, the plaintiff’s box, considering its size and character, .should, in the exercise of common prudence, have been kept in the burglar-proof, where property of the same kind, but in packages of a less bulky and cumbersome -character, were usually kept by defendants. We think the court very properly allowed the jury to take the character ■of the package into consideration.

The .next three instructions asked by plaintiff in error -were as follows :

“ 5. The defendants were bound to act in good faith with the plaintiff and her mother, and if the defendants knew, • or had reasonable grounds to presume, that the tin box -contained United States bonds, or other valuables, and they, by any act of theirs, lessened the security of the ■vault against robbery, or believed that it was not secure .against robbery, and to increase the security of their own valuables in the vault against robbery, placed therein a burglar-proof safe for their reception, good faith required them to notify the plaintiff", or the owner of the box, of those facts, and if they did not, and loss ensued, they were liable.
“ 6. Even if there was an agreement with the owner of •the box that it should be kept in the defendants’ vault, yet if the defendants had weakened the security of their vault .■against robbery, or believed that it was not secure against robbery, and to increase the security of their own valuables against robbery, had placed in the vault a burglar-proof safe for their reception; and if they knew, or had reasonable ground to presume, that the tin box contained bonds or other valuables, they would be bound, in the exercise ■of good faith, to notify the owner of the, box, or the person ■who delivered it to them, at any time thereafter, of these facts, and if they did not, they would be liable if loss ensued.
“ 7. If the defendants knew, or had reasonable ground to-presume, that the tin box contained bonds or other valuables, and knew, or found out, that they could not, or would not, keep the box in the safe, to act in good faith they would be bound to notify the owner of the box, or persons who afterward delivered it to them, of that fact, and if they did not and loss ensued, they would be liable.”

These instructions relate solely to the question of good faith. On this subject the court instructed the jury: “ That if the agreement was that the box should be kept in the vault, both parties supposing at the time that the place was a sáfe one, and if afterward the defendants learned that the vault was insecure from any cause, good faith required that the defendants should notify the persons interested in the box of their discovery of the unsafety of the place selected. But if the vault remained as secure, at and after the reception of the burglar-proof safe, and up to the time of the robbery, as it was when the box was deposited, and if the defendants had no reason to believe that either the plaintiff or her mother was deceived in the security of the vault, they were not obliged to notify either the plaintiff or her mother of the procuring of the safe, nor were they obliged to put the box in the safe. They were obliged to notify them if the vault actually became insecure, or if they discovered that it was insecure, and not otherwise; that is, if the parties interested in the box were resting under a delusion, or trusting to a false security, and the defendants-knew it, or had reason to know it, good faith required them to remove that false impression, or be answerable therefor in damages.”

The court also instructed the jury: “ That if the proof shows that the box by agreement was to be kept in the-vault, good faith would require of the defendants that they should exercise the same degree of care in keeping it in the-stipulated place, that would be used by bankers of common prudence under like circumstances They ought not to-have unnecessarily or unduly exposed it. They ought not to have materially diminished the safety and security of the vault; and if they did so, if they took off a door of the vault, and thereby materially diminished its security, the defendants would be responsible for a loss through that carelessness, unless they notified the plaintiff or the owner of the box of the change in the doors. But if you can say that if the door was taken off, it did not materially increase the exposure of the box and its contents, and if you further find that bankers of common prudence, under similar circumstances, in this locality, would have taken off the door as they did, then you ought not to come to the conclusion that they were guilty of bad faith.”

The court also said to the jury: “ If the plaintiff expected that the box would be put in the safe, and the defendants or their cashier knew of her expectations, they ought to have put it there or notified her that they could not do so. But if she had no such expectation, or if they had no reason to believe that she had, they would not be bound to put it there. They were bound to put it where they had reason to believe she expected it to be put.”

These instructions as to good faith were, as we think, all that the plaintiff had a right to ask.

The seventh instruction asked by the plaintiff is based on the idea that if the defendants, after the deposit of the box in question by the plaintiff’s mother, for the greater security of any valuable property of their own, or of depositors, procured a burglar-proof safe of sufficient capacity to contain such property in packages of a particular kind, or without inclosures of any kind, they were bound to procure a safe of sufficient capacity to contain the plaintiff’s property of a similar kind, without regard to the character of the package or inclosure in which it was contained, or else to inform her that they had procured such safe, but could not place her deposit therein. And that a failure to do so would be such a want of good faith as would subject the defendants to liability for the loss of the property deposited, by robbery. We think such a charge was properly refused. If the box was originally deposited whilst defendants had no place of greater security for it than their vault, which both parties supposed to be reasonably secure, and if no substantial change in that security occurred subsequently, and if the defendants discovered no defect in the vault calculated to diminish confidence in it as a place of security, the defendants were under no obligation, as gratuitous bailees, to incur expense in furnishing a place of greater security. If the defendants were keeping their own property of a similar kind 'in the vault, and also that of other depositors, and the place was such as other bankers of ordinary prudence would have placed similar deposits in, the plaintiff had no right, in the absence of a special agreement,' to expect á higher degree of care. She was in no way injured by the fact that defendants subsequently procured a burglar-proof safe for the greater safety of packages of a different kind from hers. Nor did good faith require that she should be notified of that fact, so long as the security which she had ■a right to expect remained undiminished.

The eighth instruction asked was as follows :

“ A party, by his silence, under certain circumstances, may admit the correctness of a statement made to him; thus, if the plaintiff, on the Wednesday after the robbery, ■at her mother’s house, said to Mr. Lodge that she had left her bonds in. his hands for safe-keeping, and expected them to be returned to her, and if Mr. Lodge understood the assertion of the plaintiff, and made no reply, or dissent thereto, this silence would be regarded as an admission of the fact that he knew the bonds had been left with him in the box for safe-keeping.”

This instruction the court refused to give, and the general charge contains no equivalent instruction.

We think there was no error in refusing this instruction. The maxim, “Qui tacet, consentiré videtur,” is always to be applied with caution. Without discussing the subject at length, it is very clear that the silence of a party can never be properly regarded as more than the admission -of the truth of that which is alleged in his hearing. Nor, indeed, can it justify any further inference than that the party who is thus silent had no knowledge at the time in regard to the facts alleged which would justify him in denying the allegations made. If the plaintiff affirmed in the hearing of one of the defendants after the robbery that the box which she had deposited with them contained United States bonds, the silence of such defendant could not imply more than his inability to deny, from his knowledge or information, the fact thus affii-med. The plaintiff had asserted that her box contained bonds; she had not ■asserted that the defendants were apprised of this fact when the deposit was made, or at any time before the robbery. The defendants may have had no reason to doubt the truth of the statement thus made by the plaintiff, and were therefore under no obligation to raise an unpleasant controversy by questioning her veracity. They might very properly remain silent. But the court was asked to say to the jury that this silence of the defendant, Lodge, should be regarded by them as an admission of the fact that ho knew the box deposited with him and his partner contained bonds. No such averment had been made in his hearing. He may have had no information as to the contents of the box until after the robbery; and his silence when tlio actual contents were afterward stated by the plaintiff could not fairly be regarded as an admission of such previous knowledge.

Without affirming that the charge of the court was, in •all respects, unexceptionable, it is sufficient to say that we think the plaintiff in error has no reason to complain of it, ■and that the instructions asked by her counsel were properly refused by the court, except with the modifications or qualifications found in the charge as given.

Judgment affirmed.

Ashburn, J.,

dissenting. My reasons for coming to a ■different conclusion from that of my brethren.

I will only give such facts as appear necessary to a clear understanding of the legal questions involved in this ease. The only law involved in this case is that fixing and limiting the liability of gratuitous bailees. Touching this particular case, they arise out of the instructions given, or refused to be given, to the jury.

Plaintiff claims she deposited with defendants, who were bankers and owners of a banking-house, prior to November 8, 1867, certain United States bonds, inclosed in a tin box; that the box was fastened with a lock, and her mother was in possession of the key; that she placed the box containing the bonds in the possession of defendants for safe-keeping, and to be returned to her; that defendants did not safely and securely keep her bonds, but, on the contrary, negligently and carelessly placed said bonds in an insecure and improper place in their banking-house, and that by reason of defendants’ carelessness her bonds were stolen and not returned to her.

Defendants admit they are bankers, or rather brokers, and had a banking-house, and that in 1867 they received from plaintiff', to keep without reward, a tin box, locked, and the key not in their possession ; that they put the tin box, thus locked, in the vault in their banking-house; that they had no knowledge of the contents of the tin box; that the vault was, on November 8,1867, in the night, broken open, and the contents of the tin box stolen, without their knowledge or consent; that they had been in the habit of receiving some deposits for their customers, and for the accommodation of their friends, gratuitously, and at the owner’s risk; “that in receiving said box, and placing the same in their vault, they acted in good faith,” etc.

On the issue thus made up, the case went to the jury. On the part of the plaintiff testimony was offered tending to show that plaintiff had United States bonds in the tin box when deposited with defendants ; that she knew nothing of the safe being placed in the vault; that the tin 'box and its contents had mostly, for many years, been in the care of defendants, at their banking house; that plaintiff at one time placed her bonds in possession of the defendants for safekeeping, inclosed in envelopes ; that she took them out with the purpose of placing them in the care of a relative, and afterward placed them in the tin box, with valuables belonging to her mother, and then returned them to defendants for safe-keeping; that she knew of no change in the structure of the bank vault; that the vault was secured by three doors, two of iron, and one of wood,- incased in sheet-iron on both sides, and the wooden door was the inner one; that this vault had been once burglarized by an entrance from the cellar; that the two iron doors were broken down by the burglars, but the wooden door remained intact, and the vault was not plundered; that this was while the building was owned by the former proprietors, and they, to guard against such incursions, had built a solid wall of masonry under the passage-way to the vault. Having heard of thisburglarious transaction, “ the defendants became impressed with the belief that the vault was insecure and not burglarproof, and so in the month of September, 1866, for further-security, and at the suggestion of one of the former proprietors of the bank, who, from hearing of repeated bank robberies, had lost faith in the safety and security of the vault, defendants bought a burglar-proof iron safe and placed it in their bank vault, in which safe defendants thereafter heft their own money and bonds, and the bonds of twenty or thirty other persons left with them on special deposit without reward, save the bonds of plaintiff, her mother, and the bonds of Thomas White.”

And the defendants, to maintain the issue upon their part, gave testimony to the jury, tending to prove the following-facts, viz:

“ That they had perfect confidence in the safety and security of their vault up to the time of the robbery, but bought the safe for further security; that they generally aimed to keep their own bonds and money in the safe after it was put in the vault; that frequently after the safe was locked up at close of banking hours, deposits of money were made by parties on general deposit, and bonds purchased by them of parties coming in to sell, and that upon. .such occasions they would not go to the trouble of opening ■the safe, but would put such money or bonds on the safe, or on the shelves, until the next day, and would leave such money or bonds in the vault on top of the safe, or on a shelf, or on the floor of the vault, over night, ranging from small sums up to $8,000 or $4,000, but could not name any particular occasion.
“ That when the box would be brought back to the bank .at the various times, the person bringing it would ask defendants to set it in their vault, and they would do so ; that •a short time before the robbery the box was taken out, and that Mrs. Regges brought it back and asked them, defendants, to set it in the vault, saying that she was going to leave town, and did not want to leave it at home for fear ■of fire; that the safe was made only for valuables, had some pigeon-holes in it, a small drawer and a shelf, and was filled with their valuables, and those on deposit, as .aforesaid; that they kept their United States revenue stamps in the vault, in a pigeon-hole, and not in the safe, and on the night of the robbery, had of such stamps on hands from $600 to $1,000 worth, which were not disturbed by the burglars.”

That when the iron safe was put in the vault, the wooden door was removed, and remained off at the time of the robbery. The blacksmith who took down the wooden door from the vault, at one time had on special gratuitous deposit with defendants $8,000 or $4,000 worth of bonds.

The testimony discloses the following circumstances and •agreement in regard to the bonds deposited by White and the blacksmith:

“That some time before the robbery the said Thomas White bought'of the defendants certain bonds of the United States of the character of the plaintiff’s, to the amount of $400; that defendants told him they had no envelopes on .hand large enough to contain them; that White put his bonds in a small paper box, and handed it to the defendants, who then notified him that they could not put the box in ■their safe, and the paper box-was set in the vault.
“ That the blacksmith who took off the door at the time the safe was put in, afterward, and before the robbery herein complained of, made a special deposit of from $3,000 to $4,000 in government bonds in the vault, and outside of' the safe, with the defendants, but which he took away before the robbery. The said bonds were by agreement to be kept in the vault outside of the safe.”

The plaintiff requested the court to charge the jury as follows:

“ If the defendants knew, or had any reasonable grounds to presume, that the tin box contained United States bonds, although they did not have the key to the box, they would be bound to take the same care of it that they usually took of like bonds of others on special deposit with them without reward, or which they usually took of their own, and if they did not take this care, and loss ensued, they would be liable.”

This instruction the court refused to give, except as embodied in the general written charge. To this refusal and" the charge as given, the plaintiff at the time excepted.

This instruction should have been given to the jury. I think the proposition is sound in principle and unexceptionable in phraseology. In refusing to give it, the. court, if not intending to cast suspicion upon the request as a principle of law, necessarily left the impression upon-the mind of the jury that it was not law in the ‘case as-requested.

As I understand the general charge of the court, the following paragraph of the charge was intended as the equivalent of request fourth refused. The court said :

“ Again, the defendants, if there was no agreement otherwise, were bound to take the same care of this box that they ordinarily bestowed upon the bonds of others which were deposited in the same manner as these were, and if they did not, and loss thereby followed, they would be responsible, even though defendants took as good care of plaintiff’s-bonds as they usually took of their own under similar circumstances.”

The vice in this part of the charge, in my judgment, is, that the principle of law — good faith, proper care, gross negligence — is made to turn upon the box in which the bonds of plaintiff were kept. The emphasis placed by the court upon the fact that the bonds were, when deposited, in a tin box, was well calculated to mislead the jury upon the question of proper care and good faith. This becomes more manifest when coupled with the next element of the •charge couched in this language :

“ But I can not say to you that they were bound to keep bonds in a box, where they had no control of the key, in the same way they did bonds in envelopes. They would have no right to open the box. Bonds deposited in boxes .are not the same as bonds deposited in envelopes. If the plaintiff' expected that the box would be put in the safe, and the defendants or their cashier knew of her expectations, they ought to have put it there or notified her that they •could not do so. But if she had no such expectation, or if they had no reason to believe she had, they would not be bound to put it there. They were bound to put it where they had reason to believe she expected it to be put.”

This was substantially charging the jury that defendants were excused from exercising as great care for the secnrity of plaintiff’s bonds because in a tin box, as if deposited in •envelopes. The scale of difference that would secure liability, and be excusable want of care in such case, is not given. But the jury were told there was a difference, and that difference lay in, out, or about the tin box! No word appears in the evidence that the plaintiff was advised of .any change in the bank vault, or could l’easonably have any special expectations as to the particular place in the vault her bonds would be deposited. She deposited her •bonds with defendants for safe keeping, and in the absence of a special agreement, good faith charged defendants with the duty of keeping them as securely and safely as they .kept their own bonds, of to have notified her, as they did White, that they could not do so. It was not so much a question of expectation for the jury, as of duty, good faith, proper care, gross negligence.

I think here, as did Judge Day in B. & O. R. R. v. Whitaker, 24 Ohio St. 651, when he said: “¥e are relieved from this,” (determining whether the jury were warranted on the facts in making the verdict they did,) “ for we regard the charge of the court to the jury so far misleading in its general scope and character upon a material point as to endanger a correct finding upon the facts by the jury.”

The plaintiff further requested the court to charge the jury:

“ 7. If the defendants knew, or had reasonable ground to presume, that the tin box contained bonds, or other valuables, and knew, or found out, that they could not or would not keep the box in the safe, to act in good faith they would be bound to notify the owner of the box, or persons who afterward delivered it to them, of that fact, and if they did not, and loss ensued, they would be liable.”

This charge the court refused to give. The plaintiff excepted, and also excepted to the charge of the court on the same point.. The court in the general charge said to the jury:

“ But if the vault remained as secure at and after the reception of the burglar-proof safe, and up to the time of the robbery, as it did when the box was deposited, and if the defendants had no reason to believe that neither the plaintiff nor her mother was deceived in the security of the vault, they were not obliged to notify either the plaintiff or her mother of the procuring of the safe, nor were they obliged to put the box in the safe. They were obliged to notify them if the vault actually became insecure, or if they discovered that it was insecure, and not otherwise; that is, if the parties interested in the box were resting under a delusion or trusting to a false security, and the defendants knew it, or had reason to know it, good faith required them to remove that false impression, or be answerable therefor in damages.”

She trusted defendants, and rested under the belief they would act in good faith. Was this a delusion?

I think the charge requested was correct in principle,, and fully demanded by what the testimony tended to disclose as to the true state of the relations and reciprocal duties of the pax-ties. The charge given does not, I think,, meet the demands of the law of good faith in such cases. When the door of the vault was taken off to admit the iron safe, the safe became an element of security to and of the-vault, of which it formed a paid. And when defendants deposited their own bonds in that ii-on safe for better security, good faith and proper care l-equired the defendants to put the bonds of the plaintiff in that iron safe, or notify her-they could not or would not do so. The good faith die-tated by fair dealing required the defendants to treat plaintiff’ and her bonds with the same consideration they did. Thomas White and “the blacksmith.” They were notified their bonds could not go in the iron safe, and by special agreement their bonds were to be kept in the vault outside the safe. Failing to so notify and agree with plaintiff) defendants were guilty of gross negligence, and the juiy should have been so charged.

It is said this was a gratuitous deposit, from which plaintiff was to dei-ive all the benefit and defendants all the burdens. As the case resulted, the law in this respect was-reversed.

“ A man may warrant a thing without any consideration; and, thei-efore, when I have reposed a trust in you upon your undertaking, if I suffer when I shall have so relied, upon you, I shall have my action.” Cogg v. Barnard, 1 Smith’s Leading Cases, 271.

How is this doctrine of gratuitous bailments considered ?" Edwai-ds on Bailments (p. 47) says: “ A person receiving goods to keep, impliedly stipulates that he will take some degree of care of them; but the degree of care is to be measured by the watchfulness with which he preserves his own property of a like kind. He must observe good faith in keeping them as he keeps his own property. If they be-lost or injured by his gross neglect, or a violation of good faith on his part, he is responsible for the damages sustained.”

On page 68 he says: “ Where a person premises, or the law implies a promise on his part, to keep the goods or chattels, it is but reasonable that he should be required to discharge the duty faithfully; and it does not seem any abuse of language to speak of the breach of this duty as a breach of good faith. However expressed, it is a failure or a default in the keeping of an engagement, for the performance of which his good faith is'pi edged in vain.”

And this I take to be the doctrine of the books, and is founded in moral honesty.

Why was not this tin box put in the iron safe ? Not because it was of too great bulk to go in the burglar-proof vault of the safe. The dimensions of the burglar-proof vault would have held, by calculation, twenty-eight such tin boxes. I give the dimensions of each as shown by the proofs.

The box was “ a small tin box, of about eight inches long, four inches wide, and five inches high;” and it appears “ that the burglar-proof part of the safe was in dimensions about 21| inches high, 17 inches wide, and 12J inches deep.”

Defendants are caused to say in defense, “ that they had perfect confidence in the safety and security of the vault' up to the robbery.” I will not question the integrity with which this statement was made, but in the light of all the’ circumstances of this case, I am led to believe the reasons: for putting the burglar-proof safe in the vault appears from: the testimony that tends to show “ that the defendants became impressed with the belief that the vault was insecure and not burglar-proof, and in the month of September,, 1866, for further security, and at the suggestion of one of the former proprietors of the bank, who, from hearing of repeated bank robberies, had lost faith in the safety and, security of the vault, the defendants bought a burglarproof iron safe, and placed the same in their said vault, and in which safe thereafter they kept their own money and bonds, and the bonds of twenty or thirty third persons, left with them on special deposit, to be kept without reward, save the bonds of the plaintiff and her mother, which were in the tin box, as stated, and the bonds of one Thomas White.”

On careful consideration, I think the court erred in not giving the jury the requests asked by plaintiff, and that the charge as given was, on the whole, calculated to mislead the jury.  