Maddock v. Riggs

Citations

• 106 Kan. 808
• 190 P. 12
• 12 A.L.R. 216
• 1920 Kan. LEXIS 659

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandatory Bailment — Neglect of Gratuitous Bailee to Remit Insurance Premiums — Lapse of Policy — Liability of Bailee. By a series of transactions covering several years the appellant accepted from the holder of a fraternal insurance policy his monthly dues and undertook to remit the same to the fraternal association, but failed to remit the dues for one month, by which the policy lapsed and the assured was suspended. Upon the death of the assured, the appellee, who was the beneficiary named in the policy, brought suit against the appellant to recover the amount that would have been due on the policy if it had not lapsed. Held, that appellant, having entered upon the performance of the duty to remit the monthly assessments, became liable for any injury resulting from his misfeasance.</p> <p>2. Same — Contract—Promise Made to One Party for Benefit of Third Party. Upon the facts stated in the preceding paragraph, the rule is applied that a third party, not privy to a contract nor privy to the consideration thereof, may sue to enforce any part of it made for his especial benefit and interest; that the promise, is to be deemed made to the plaintiff if adopted by him, though he was not a party nor cognizant of it when made. (Anthony v. Herman, 14 Kan. 494; Floyd v. Ort, 20 Kan. 162; Life Insurance Society v. Welch, as Sup’t, &e., 26 Kan. 632.)</p> <p>'3. Same — Gratuitous Bailee — Liable for Gross Negligence Only. The general rule is that a gratuitous bailee is liable for gross negligence only. Whether, in a particular case, this liability exists, is a question of fact for the jury.</p> <p>4. Same — Liability Not Determined by Care Exercised with Bailee’s Own Goods. The arbitrary rule adopted by some courts that a gratuitous bailee may absolve himself from liability for loss occasioned by his misfeasance merely by proof that he has been likewise negligent with his own goods, is disapproved on the ground that it leaves out of considerat