GRATUITOUS UNDERTAKINGS. 227 is negligence in an agent? We are assisted in at least two im- portant ways : first, light is obtained by comparing cases arising out of bailment with those arising out of agency, now not usually brought together; secondly, a new test, easier of application, — What did he undertake to do? — is substituted for the old one, What was the degree of the defendant's negligence? The proposition that I shall consider by this method is this: that the degree of care required of an undertaker is not propor- tionate to the reward, and therefore that the fact that the duty was undertaken gratuitously is immaterial, except as evidence of the extent of care undertaken. This, as I shall try to show, is the general result of the authorities, though there has been no explicit decision to that effect. And the proposition necessarily follows from the nature of an undertaking. No consideration is required, only entrance on the undertaking; and the compensation received is only one of a number of facts bearing on the question, What was the duty undertaken? The leading case on the subject of gratuitous undertakings is Coggs v. Bernard, 1 in which the declaration alleged an under- taking to carry, but contained no allegation of a reward. The case was argued on a motion for arrest of judgment. The degree of care required of a gratuitous bailee was not in question, because the verdict was found on a count alleging that the defendant as- snmpsisset . . . salvo et secure deponere. The several opinions, however, show that the lack of consideration was not of itself re- garded as affecting the degree of care. Gould, J., said that in case of a mere voluntary undertaking the defendant was liable only for gross neglect; but if he undertook expressly to do the act safely, he would be liable. " When a man undertakes spe- cially to do such a thing, it is not hard to charge him for his neg- lect, because he has the goods committed to his custody upon those terms. Holt, C. J., said in like manner, " There is no rea- son or justice, in such a case of a general bailment, and where the bailee is not to have any reward, but keeps the goods merely for the use of the bailor, to charge him without some default in him. For if he keeps the goods in such a case with an ordinary care, he has performed the trust reposed in him." Of these dicta it may be said, first, that they allege the true reason for liability, namely, that he is to be held to such degree of care as he has undertaken 1 2 Ld. Raym. 909 (2 Ann.).
