1 Xational Cordage Co. R. Sims, 44 Neb. 148; ante, в§ 2.

2 Thorne V. Deas, 4 Johns. (X. Y.) 81, where the subject is exhaus-

tively discussed.

^ Coggs I'. Bernard, 2 Ld. Rayni. 901), wliich. although a case of gra-

tuitous bailment, is the fountain source of the doctrine of gratuitous

undertakings generally. See also Beardslee v. Richardson, 11 AVend.

(X. Y.) 25; Laniploy v. Scott, 24 Miss. 528; Eddy v. Livingston, 35 Mo.

487.

* Shiells V. Blackburne, 1 H. Bl. 159; Moffalt v. Batcman, L. R.

3 P. C. 11.5.

6 AVilson V. Brett, 11 M. & W. 11.3.

8 Whitehead v. Greetliam, 2 Bing. 464; Beal v. South Devon Ry.,

3 H. & C. 337; Durnford v. Patterson, 7 Martin (La.), 460; Gill v. I\Iid-

dleton, 105 I\Iass. 477; McXevins v. Lowe, 40 111. 209: Lsham r. Post,

141 N. Y. 100, where it was held that a banker undertaking to loan

money gratuitously was bound "to exercise the skill and knowledge of a

banker engaged in loaning money for himself and for his customers."

OBLIGATIONS OF AGENT. 123

safety, then such care and skill as is proportioned to the risk,^

or, in case lie expressly undertakes to do a certain thing, and

intentionally does the contrary, he is liable irrespective of any

question of care or negligence.^

Probably the use of the fluid terms " slight care " and

"gross negligence" has led the courts to attempt to qualify

them by the addition of the more specific rules given above,

and therefore not one alone, but all of the above rules to-

gether, must be accepted as containing the established doc-

trines ujjon this subject. Reduced to equivalent terms they

seem to mean that a gratuitous agent must use as much care

as he undertook to use, and, in deciding how much he under-

took to use, the court or jury may consider: (1) how much he

Is accustomed to use in his own like affairs ; (2) how much

skill he actually possesses; (3) how much skill he holds him-

self out as possessing; (4) how hazardous the affair is in

which he undertakes to act ; (5) whether he has committed

a breach of the terms of his undertaking.^ In short the gra-

tuitous agent must observe the rules of obedience and good

faith and must exercise such prudence, skill, and care as he

has, under the circumstances, expressly or impliedly under-

taken to use.* " Gross negligence in such cases is nothing

more than a failure to bestow the care which the property in

its situation demands ; 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 deter-

mine, or by the court where a jury is waived."^

It is clear, then, that an agent's liability for negligence does

not depend upon the reward he is to receive, nor is the care

he is required to use proportioned to the reward. The absence

of a reward has merely an evidential force in establishing the

nature and extent of the care which he is bound to use, and

1 Philadelphia & Reading R. v. Derby, U How. (U. S.) -168.

' Jenkins v. Bacon, 111 Mass. 373; Opie i'. Serrill, 6 W. & S. (Pa.)

261.

3 Cases mpra; Beale, 5 Harv. Law Rev. 222.

"^ Colyar v. Taylor, 1 Cold. (Tenn.) 372.

5 Mr.' Justice Field in Preston v. Prather, 137 U. S. 604, 608-609.

124 TRINCirAL AND AGENT.

even for tliis purpose it is of slight significance when the snb-

sidiary rules given above come to be applied.

В§ 98. Gratuitous bank directors.

The question of gratuitous agency arises frequent ly in the

case of directors of corporations who serve without compen-

sation, and the discussion has revolved particularly around

the question as to the liability of bank directors for losses oc-

casioned through their alleged negligence. What amount of

care is a bank director, serving without compensation, required

to exercise in the management of the affairs of the bank ?

Several answers have been given to this question. A very

connnon answer is that he is liable only for fraud or gross

negligence amounting to fraud. ^ Another answer is that he