
    Stella A. Gottlieb, Respondent, v. Wallace Wall Paper Company, Appellant.
    First Department,
    April 4, 1913.
    Bailment — gratuitous bailment — loss of wall paper designs left for examination — gross negligence' — evidence.
    In an action to recover damages for the loss of designs which the plaintiff claimed to have left with the officers of the defendant for their examination, it appeared that the plaintiff left the designs with the officers of the defendant at thehj rooms; in a hotel; that, after examining them, they left them, together with their own personal belongings,. in the rooms and locked the doors, taking the keys with them. When they returned they found the hotel servants putting their rooms in order and were informed and beliéved that the plaintiff had taken or sent for her 'designs. They answered her inquiries promptly, stating the facts, and subsequently ¡made an investigation and search with the hotel officials.
    
      Held, that there was a gratuitous bailment and that the defendant was only hable for grosjs negligence; • • , .
    That the evidence Was insufficient to establish gross negligence, and a judgment in favor of the plaintiff should be reversed.
    Appeal by the; defendant, the Wallace Wall Paper Com, party, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of December, 1912, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 9th day of December, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Franklin Pierce of counsel [Kellogg & Van Hoesen, attorneys], for the appellant.
    
      Henry B. Singer, for the respondent.
   Clarke, J.:

The plaintiff was a designer of wall paper. The wall paper manufacturers of this country and Canada are in the habit of holding a two weeks’ convention in New York city every year; where they examine submitted designs: and make their plans for the forthcoming season. The main headquarters is the Hotel Breslin.

The president, vice-president and secretary of the defendant company, whose business is located in Cortland, N. Y., had had the same rooms at the Breslin for a number of years. The plaintiff was anxious to submit her designs to them and finally did so early in the morning of the last day that they were in town, August 19,1910. When she reached their rooms at about eight o’clock they were busy with customers and asked her to come again. Her testimony is: “I came again but I had another appointment some time later that morning. He said that I should take the designs away and show them to the other party and return them, which I did. I returned them to Mr. Seymour personally. * * * When I came again the customer was still there. Later in the'afternoon I telephoned * * * I was told that they were out. The next morning at 8 o’clock I went to the hotel again, and I was informed that they had gone home to Cortland.”

She then wrote on August twentieth,. “I have just been at the hotel on my way home and discovered that you have taken my designs to Cortland with you. Kindly retain what you may have selected, and send the rest to the Bailey Wall P. Co., Cleveland, Ohio; as I promised to send a selection to them today. Kindly give this matter your immediate attention; ” which defendant answered by telegram on the twenty-third, “Did not bring designs here; see hotel people at once.” And .also wrote, “I am in receipt of your letter asking regarding your designs, and I am very much surprised. I did not see your designs when we packed up, and took it for granted that you called for them and took them away. I went over them with Mr. Beaudry and he did not find anything which he cared to purchase. In fact we did not buy any designs this trip: . If you have'not already received them, they must be at the hotel and I am anxious to hear from you that you have received them safely.”

Mr. Seymour testified that plaintiff had called early in the morning about eight o’clock with this roll of designs and that as Mr. Beaudry was busy he told her they could not examine them until he was at liberty. “She then asked if she could leave the designs,, which is frequently done by all designers. I told her if she wanted to do that we could probably look them over some time during the day or as soon as we had an opportunity to look them over together, but that we were going home that night, and that she ' could: come back after the designs, which she agreed to do. She left the roll of designs with me at that time: * * * Mr. Beaudry and I looked at them together, either before or just after our lunch, in the middle of the day. * * * After I looked at these designs and decided not to select any, I rolled them up together in the same paper in which they were delivered to us, and laid them on-one of the tables in one of those salesrooms. My best recollection is- that her name was written with a pencil on these parcels. I did them up in the same Wrappings and left them on the table in that room. * * * My handbag was on the table with the designs. * * * Some of my things were on the dresser and in the dresser drawers, toilet articles. * "x" * Mr. Beaudry and I went out together. When I left that room and went out of the door the designs were on the table with this grip of mine. Mr. Beaudry locked the outer door. * * * He took the key.” They had notified the hotel people that they were going to leave that night but had not yet given up the room. When they came back about seven o’clock and got off the elevator they noticed that their door was open and the rooms were lighted. “We found several of the servants or attendants who were putting those rooms in order. * * * After we went in the room and found them there, we began to. pick up the remainder of our belongings * * * and T called. Mr. Beaudry’s attention to the fact , that the designs were not there. * * * We inquired if anyone had been there for the designs; told the help that there was a package there and we expected that, would be called for. * * * Q. And from what they told you and from the information that they gave-you did you believe that the plaintiff had called or sent for those designs during your absence ? A. Yes. Q. Mow, Mr. Seymour, what did you then do ? A. Completed the packing of our hand baggage and went down to the office and paid our bill and turned in the key and gave up the room. * * * As she agreed to return for them, I took it for granted she had done so.” .

Mr. Beaudry testified to the same effect. He says: “ I made inquiries of the help in the room as to what had become of the designs. From what they told me and the information that they gave me I thought that the plaintiff had called or sent for them. We left the hotel in that belief.” They heard nothing more after this exchange of letters and telegrams until September thirtieth, when they received a demand from her lawyers. Mr. Beaudry testified: “When I came to New York after the receipt of this demand I went to the Hotel Breslin to make a search for these designs. I caused a search to he made. . I called there and went over the matter with a man in charge at the desk, very thoroughly. * * * Nothing could be found of the package.” He also said that he had had an interview with one of the attorneys. “ I told' him substantially as I told it here on the witness stand, and he told me that he did not think he had a case against me. I said something with reference to proceeding against the hotel people.”

Upon this evidence the jury found a verdict for the plaintiff. She claimed $3,500. The jury gave her $500. I think the verdict was clearly wrong. This Was a gratuitous bail-T1ff ment where the defendant was only liable for gross negligence, an inapt, but apparently settled phrase. Negligence is the failure to take the degree of care which the circumstances require. The circumstances of this case required only that defendant should take the care that a reasonable man would take of his own things. The officers of this company left their own personal belongings in the room and locked the door, taking the key with them and leaving plaintiff’s designs and their own property together. When they came hack and found the hotel servants in the room they made immediate inquiry. They were informed, and believed, and relied upon the fact, that plaintiff had come or sent for her designs. They answered her inquiries promptly, stating the facts and subsequently made an investigation and search with the hotel officials. It seems to me that they did all that reasonable people could be expected to do. Therefore, a finding of gross negligence was not only against the evidence, but without evidence to support it.

The judgment and order should be. reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  