delivered the opinion of the Court:
The main error assigned is the giving of the first instruction given by the trial court for the plaintiff. It is claimed by plaintiff in error, that the defendant bankers were gratuitous bailees, holding the bonds in controversy as a special deposit for safe-keeping without reward. The general rule is, that a gratuitous bailee is liable only for gross negligence. (Story on Bailments, secs. 62 and 79—9th ed.; Schouler’s Bailments and Carriers,—2d ed.—see. 35; Skelley v. Kahn, 17 Ill. 170.) The instructions for both plaintiff and defendants require the jury to find, that the defendants were guilty of gross negligence in the keeping of the bonds, as a condition to the right "of recovery. But the objection made to plaintiff’s ins truetion is the definition, which it gives of gross negligence, in the use of the following clause s “The want of ordinary and reasonable care is in law termed gross negligence.” Gross negligence has been defined to be the absence or want of slight care or diligence. (Story on Bailments, secs. 62, 64; Schouler’s Bailm. & Carriers, secs. 15, 35; M. C. R. R. Co. v. Carrow, 73 Ill. 348; C., B. & Q. R. R. Co. v. Johnson, 103 id. 512.) But the portions of the instruction, which precede and follow said clause, are in harmony with much of the language used in the text books and decisions. Sehouler, in his recent work on Bailments and Carriers (sec. 35), after announcing that the gratuitous bailee is liable only for slight care and diligence according to the circumstances and cannot be held for loss or injury unless grossly negligent, says: “This statement of the rule, though strongly buttressed upon authority, fails at this day of universal approval in our jurisprudence. * * * ‘Slight,’ ‘ordinary’ and ‘great’ are terms they (some courts) wish to see discarded; and they prefer judging of each case by its own complexion.” The same author states, that, in the main, gross negligence is a question of fact upon all the evidence for the jury; and that what constitutes slight diligence, or gross negligence, will depend in each case upon a variety of circumstances, such as the occupation, habits, skill and general character of the bailee, and local custom and business usage. (Schouler on Bailm. and Car. secs. 49, 50). Story, after stating the rule that, when. the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, subsequently adds that, in every case, good faith requires a bailee without reward to take reasonable care of the deposit; “and what is reasonable care must materially depend upon the nature, value and quality of the thing, the circumstances under which it is deposited, and sometimes upon the character and confidence and particular dealings of the parties.” (Story on Bailm. secs. 23 and 62).
In Smith v. First National Bank in Westfield, 99 Mass. 605, which was an action against a bank for the conversion or loss by gross negligence of valuable articles deposited with it as. a bailee without hire, the court said: “This was a gratuitous bailment. The defendants are liable only for want of ordinary care.”
A deposit is a naked bailment of goods to be kept for the bailor without recompense, and to be returned when the bailor shall require it, while a mandate is a bailment of goods without reward to be carried from place to place, oi: to have some act performed about them. (Story on Bailm. secs. 4 and 5). But a mandatary, like a depositary, is said to he bound only to slight diligence and responsible only for gross neglect. (Story on Bailm. sec. 174). In Skelley v. Kahn, supra, we held that “a mandatary or bailee who undertakes without reward to take care of the pledge, or perform any duty or labor, is required to use in its performance such care as men of common sense and common prudence, however inattentive, ordinarily take of their own affairs, and they will be liable only for bad faith, or gross negligence, which is an omission of that degree of care.” The liability of banks, acting as bailees without reward in the care of special deposits, has been recently considered in the case of Preston v. Prather, 137 U. S. 604; and it was there held, that such bailees are bound to exercise such reasonable care as men of common prudence usually bestow for the protection of their own property of a similar character; that the exercise of reasonable care is in all such cases the dictate of good faith; and that the care usually and generally deemed necessary in the community for the security of similar property, under like conditions, would be required of the bailee in such cases, but nothing more. Gross negligence, as applied to gratuitous bailees, is defined in that case to be “nothing more than a failure to bestow the care which the property in its situation demands;” and the court further says s “the omission of the reasonable care required is the negligence which creates the liability, and whether this existed is a question of fact for the jury to determine. ”
In the light of these more liberal views as to the liabilities of bailees without reward, we think that the clause in question when considered in connection with the rest of the instruction, could only have been understood by the jury as referring to the want of such ordinary and reasonable care as was designated in the previous part of the instruction, that is to say, the care usually and generally deemed necessary in the community for the security of similar property under like circumstances. The rule, that a gratuitous bailee is responsible only for the want of care which is taken by the most inattentive, cannot be applied to all cases of bailment without reward. When securities are deposited with banks accustomed to receive such deposits, they are Hable for any loss thereof occurring through the want of that degree of care, which good business men should exercise in keeping property of such value. (Bank v. Zent, 39 Ohio St. 105; 16 Am. & Eng. Enc. of Law, pages 160 and 206).
But if it be conceded, that the definition of gross negligence in the clause above quoted, even when considered in connection with the balance of the instruction, is technically inaccurate, it does not follow that plaintiff in error is entitled to a reversal of the judgment in this case. A judgment will not be reversed for error in an instruction when it appears affirmatively, that the defeated party was not injured by the error. The absence of such injury is clearly manifest when the undisputed evidence establishes the correctness of the verdict, so that, either with or without- the erroneous instruction, the verdict could not have been otherwise than it was; and, had it been otherwise, would have been set aside by the court. (Hall v. Sroufe, 52 Ill. 421; Burling v. I. C. R. R. Co. 85 id. 18; Hubner v. Feige, 90 id. 208; C., B. & Q. R. R. Co. v. Warner, 108 id. 538; United States Rolling Stock Co. v. Wilder, 116 id. 100; Town of Wheaton v. Hadley, 131 id. 640).
The defendants in this case did a regular banking business. The plaintiff kept a deposit and check account with them. He borrowed money from them from time to time, and authorized them to hold the bonds in question as collaterals to secure the notes given for such loans. While the bonds were thus held as collaterals, the character of the bailment was changed from a bailment for the exclusive benefit of the bailor to one for the mutual benefit of the bailor and bailee. (Preston v. Prather, supra). In ordinary cases of special deposits without reward, the banker has no rig lit to handle or examine the property except so far as its safety may require. But, here, the bankers had access to the package containing the bonds, and detached the interest coupons when they fell due, and collected the interest, and deposited it to the credit of the plaintiff to be checked out by him in the regular course of business. (National Bank v. Graham, 100 U. S. 699; Whitney v. National Bank, 55 Vt. 154).
Ker, the assistant cashier of the bank, stole the bonds in the summer of 1882. He had access to these bonds and to the other special deposits kept by the bank in its vault. About a year before he absconded, Kean, the chief officer of the bank, had his attention called to the fact that Ker was speculating upon the Board of Trade in Chicago, and had a conversation upon the subject with him. Ker was not known to have any other property than his salary of $1800.00. He was, however, allowed to retain his position in the bank, and no effort was made to verify the truth of the statements made as to his speculations, and no examination was made to ascertain whether he was using monies which did not belong to him. About two months before he absconded, the subject of his speculations was again called to the attention of the chief officers of the bank through an anonymous communication, and Kean had a second interview with him in relation to his conduct in this regard. "The defendants then entered upon an examination of their books and securities, but made no effort to ascertain whether the special deposits had been disturbed.” (Preston v. Prather, supra.) The facts thus detailed are undisputed and are established by the evidence of the defendants themselves.
In Preston v. Prather, supra, an action was brought in the Circuit Court of the United States by parties in Missouri doing business under the firm name of the Nodaway Valley Bank of Maryville against the same bankers, who are defendants in the present suit, to recover the value of United States bonds held as a special deposit, and stolen by the said Ker about the same time when he appropriated the bonds in controversy here. The Prather case was tried by agreement before the Federal Circuit Judge without a jury, resulting in judgment for the plaintiffs, and was taken afterwards to the Supreme Court of the United States, where the judgment rendered by the Circuit judge was affirmed. The evidence in that case established substantially the same facts as are herein set forth. Those facts, which are here undisputed and supported by the testimony of the defendants, were there held by the Federal Supreme Court to constitute such gross negligence as to make the defendants liable for the loss of the bonds, the court saying: “As stated above, the reasonable care which persons should take of property intrusted to them for safe keeping without reward, will necessarily vary with its nature, value and situation, and the bearing of surrounding circumstances upon its security. The business of the bailee will necessarily have some effect upon the nature of the care required of him, as, for example, in the case of bankers and banking institutions, having special arrangements, by vaults and other guards, to protect property in their custody. Persons, therefore, depositing valuable articles with them expect that such measures will be taken as will ordinarily secure tImproperly from burglars outside and thieves within, and that whenever ground for suspicion arises, an examination will be made by them, to see that it has not been abstracted or tampered with; and, also, that they will employ fit men, both in ability and integrity, for the discharge of their duties, and remove those employed whenever found wanting in either of these particulars. An omission of these measures would, in most cases, be deemed culpable negligence, so gross as to amount to a breach of good faith, and constitute a fraud upon the depositor. It was this view of the duty of the defendants in this ease who were engaged in business as bankers, and the evidence of their neglect, upon being notified of the speculations in stocks of their assistant cashier who stole the bonds, to make the necessary examination respecting the securities deposited with them, or to remove • the speculating cashier, which led the court (below) to its conclusion that they were guilty of gross negligence. * * * In this conclusion we fully concur.”
Inasmuch as the undisputed facts presented to the jury for their consideration on the trial below have been determined by the Supreme Court of the United States to amount to such gross negligence as will fasten liability upon a gratuitous bailee, we are disposed to hold that the verdict of the jury was right independently of the error in the instruction, and that it ought not to be disturbed. (Scott v. National Bank of Chester Valley, 72 Penn. St. 471).
It is said, that the trial court erred in admitting testimony, showing that the bonds had been pledged as collateral security for loans made by the bank to the plaintiff at various times before they were stolen, and that the evidence should have been confined to the character of the bailment at the time of the loss in the summer or fall of 1882, as at the latter date all previous loans, for the security of which the bonds had been pledged, had been paid up, and they were then held merely as a special deposit. We think that this testimony, as well as that showing that Ker had access to the bonds for the purpose of cutting the quarterly coupons therefrom as late as October, 1882, after some of them had been abstracted, was competent to show the relation of the parties to each other and to the property. As the reasonable care, which the defendants were required to take of the bonds, depended upon the situation, and the bearing of surrounding circumstances, and the nature of the custody which they were allowed- to exercise over the bonds; the extent, to which they were permitted to have access to the bonds under instructions by correspondence from the plaintiff who lived in Iowa, either for the purpose of holding them as collaterals to notes, or for the purpose of detaching the coupons, had a direct bearing upon the question of -their obligation to make examination when advised of the speculations of their assistant cashier.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.