The opinion of the court was delivered by
Prout, J.The county court, upon the evidence which is detailed in the bill of exceptions, found that the defendant was not only lacking in the exercise of ordinary care with respect to the amount of money the plaintiff seeks to recover in this action, but that he is chargeable with actual negligence, and rendered a judgment for the plaintiff.
The facts showing that the. money in the defendant’s hands was a simple depositum, or naked deposit, for the sole benefit of the plaintiff, and that it was left with the defendant without any special undertaking on his part, as well as without expectation of reward, the. principle applicable to, and which must govern the case, is at once indicated. In a bailment of this nature, the bailee is bound to exercise only slight diligence, and is responsible only for gross neglect. It is said this rule accords with reason as well as abundant authority, as in the case of a bailment of this nature, the accommodation is to the bailor, and the entire advantage to him. Foster et al. v. Essex Bank, 17 Mass. 479; Story on Bailments, §§ 23, 62; 1 Parsons on Contracts, 570, 571; 2 Kent’s Com. 560.
The decision of the county court does not seem to meet the requirement of this principle, but is put upon the distinct ground of a want of ordinary care on the part of the defendant, and that upon the evi*304dence, he is chargeable with actual neglect, without reference "to the character and nature of the bailment in question, or the degree of negligence on the part of the defendant necessary to be proved or found in order to charge him. There are different degrees of care and diligence, (which it is unnecessary to define,) a neglect or want of which, results in different degrees of negligence, applicable to and growing out of different kinds of bailment, as all the books treating of the subject show. In this case, and with respect to the bailment in question here, the court held that the defendant was bound to exercise ordinary care — a greater degree of diligence than the law required him to exercise — and was chargeable with actual negligence, but which they do not find to be gross.
But looking at the ease in the light of the evidence, although it was admissible and proper to be considered as bearing upon the question of slight diligence and gross neglect on the part of the defendant, it does not necessarily amount to, or show that the defendant was in fault as to either, to the extent or degree those terms import. Desirous of relieving himself of the care of the plaintiff’s money — the plaintiff not calling for it as accustomed — before he was obliged to leave his tent in the performance of his duties, he started for the tent of the plaintiff, with the intention of returning it to him. For the purpose of not exposing it to view, having no' pocket large enough to contain it, he placed it inside and between his shirt and vest, intending to keep it secure by the pressure of his arm upon it. On the way, .his attention is diverted, — as lie expressed it, he forgets himself with respect to the money, as any one naturally might in camp, and when he is in this mental condition, it slips out, and is lost. The county court, upon the proof, expressly exclude the inference that the defendant embezzled it. Upon this evidence, and excluding this inference, we are unwilling to hold that it shows gross negligence on the part of the defendant, as it is equally consistent with an honest intention and effort on his part to return the plaintiff his money.
The judgment of the county court is reversed, and judgment for the defendant.