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The Circum Stances as a Test of Due Care


THE CIRCUM STANCES AS A TEST OF DUE CARE. Aside from the mere question of recompense as determining the degree of care and diligence required of the bailee, due care is to be determined by the circumstances of the bailment. The standard of due care varies with the circumstances and the situation of the parties. Thus, a party should exercise greater care over a box of jewels than over less valuable and more bulky articles; so the usage of the community, customs of trade, and the general course of business, are important factors in determining whether or not the bailee has exercised due care under the particular circumstances. This ques tion of due care is usually left for the jury to determine from the facts presented to them, under instruction from the court as to the principles of law governing. If the facts are not disputed, the question whether or not due care has been exercised may be decided by the court. (Smith v. First Natl. Bank, 99 Mass. 605; Grif fith v. Zipperwick and Lodge, 28 Ohio St. 388.) And the degree of hazard necessarily involved in a bailment may assist in determining the degree of care required of the bailee. (Idem.) IS DEEMED GRATUITOUS. A bailee who regularly- receives compensation for similar bail ments will not be allowed, in case of loss, to set up a mental reservation not to charge for his services. (Schouler on Bailments, Sec. 35.) So, if the bailment is simply accessory to some other paid service, the bail ment is for hire, thus a person riding on a drover's pass is riding as accessory to the contract of shipment, and it is held that the carrying is for hire.

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