Banco De Sonora v. Bankers' Mut. Cas. Co.
| Decision Date | 13 July 1904 |
| Citation | 100 N.W. 532,124 Iowa 576 |
| Parties | BANCO DE SONORA v. BANKERS' MUT. CASUALTY CO. et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. C. A. BISHOP, Judge.
THE Bankers' Casualty Company, a corporation organized for the purpose of insuring banks against loss from burglaries thefts, and other losses, issued its policy to plaintiff, an incorporated bank located at Hermosillo, Mexico, June 22 1900. P. Sandoval & Co., a copartnership operating a bank at Nogales, Mexico, acted as agent of the plaintiff in making remittances in the United States, and, as such agent, put in the post office at Nogales, Arizona, immediately across the international line, a package containing $ 5,000 in Mexican currency, duly registered and addressed to the Bank of Bisbee, Bisbee, Arizona, which was on the same day stolen from the mail sack. The plaintiff claims it was insured in the above company, and in this action sought recovery for the money lost, amounting in value in our money to $ 2,400. The Boston Insurance Company intervened because of its obligation to defendant as a reinsurer. Trial resulted in a verdict for plaintiff, on which judgment was entered. The defendant and intervener appeal.
Reversed.
Dale & Allen and G. W. Bowen, for appellants.
Chas L. Powell, for appellee.
OPINION
The contract of insurance was what is known as a "running policy," in which the parties, the nature of the property to be covered, and the risk to be assumed are certain, but other prescribed conditions must be observed before it attaches to specific property. Among other things, it stipulated indemnity for loss of money "from the time of its deposit and registration at the post office * * * until delivered at the place of address to the consignees." P. Sandoval & Co., acting as agent of plaintiffs, deposited a package of Mexican currency in the post office at Nogales, Arizona, addressed to the Bank of Bisbee, at Bisbee, Arizona, March 21, 1900, at about eleven a. m., which was duly registered. The postmaster left the post office at six o'clock p. m., as usual, without closing the door. The portion used by the public, however, was separated by a partition, not reaching to the ceiling, from the apartment where the mails were kept, and the door through this was fastened, as were also the mail pouches. Upon his return at nine o'clock p. m., he discovered that a slit had been cut in one of these pouches, and this package extracted. Was it insured? The defenses interposed involve two conditions of the policy, which may be set out:
First. No risk to be considered as insured hereon until a letter addressed to the company at Des Moines, Iowa detailing particulars of mailing with the description of the property and the amount insured, is deposited in the post office at the place of mailing, which must be done while the property is in good safety and in all cases prior to the departure of the mail or express which carries the property insured. * * *
Eighth. It is warranted by the assured that the packing and sealing of the package containing the property insured hereunder shall be witnessed by two adults, one of whom shall have charge of the same until deposited and registered at the post office or delivered to the express company.
The packing and sealing were witnessed by A. Biester and F. H. Saldamando, two adults; and F. Dato, then about eighteen years old, carried the package to the post office and caused it to be registered. The evidence tended to show that the letter was prepared in compliance with the first condition at about two o'clock in the afternoon. Was it mailed as required before the package was stolen? Immediately across the international line from Nogales, Arizona, is a town of the same name in the State of Sonora, Mexico. The Southern Pacific Railroad runs through these places in a northerly and southerly direction, with a depot on each side of the line. At the northeast corner of that in Sonora a mail box is maintained by the republic of Mexico, while opposite and at the southeast corner of the depot, in Arizona, is another mail box, maintained by the government of the United States, under the supervision of the postmaster of Nogales, Arizona. The place of business of Sandoval & Co. is but a short distance southeast of this, and hence the mail box is more convenient than the post office building, which was three hundred and fifty yards distant. The envelope in which the letter of advice was placed in accordance with the first-quoted condition was postmarked, "Benson & Nogales, Mar. 22, 1900, R. P. O.," which indicated that it was mailed on the railroad mail car, Nogales, Arizona, at about 5:10 o'clock on the morning after the taking. In the absence of explanation, the insurance company quite naturally supposed the letter had been mailed after the loss, and repeatedly insinuated as much in its correspondence; saying it was the same "as if a man would attempt to insure his house against fire after it had burned down." But the plaintiff introduced evidence tending to prove that Gayou, a messenger boy of the bank, deposited the letter of advice in the United States mail box at about 5:45 o'clock in the afternoon of March 21st, and that, according to custom, the assistant to the local postmaster removed the mail from such box and handed it to the main clerk the following morning. Conscious of these facts, plaintiff--especially its agent--grew indignant over the intimations of the insurance company. Each had material information not possessed by the other, and this accounts for the unpleasant correspondence between them. The only issue submitted to the jury was whether the letter was deposited in the mail box prior to the stealing of the package of money. The jury's finding that it was is amply supported by the evidence. But appellant insists that, even if placed in the box in time, this was not in compliance with the conditions requiring it to be deposited in the post office. In response, appellee first argues that this objection has been waived by defendant by exacting additional proof of loss subsequent to ascertaining the fact. Authorities to the effect that forfeiture may not be insisted upon in such circumstances seem to be relied upon. They are not in point, for the reason that this requirement is not one relating to the conduct of parties, or the care of property during the life of the policy. It is a condition precedent to the risk attaching at all, and to be performed before policy takes effect with respect to the property to be insured. To hold that it might be waived, as contended, would be tantamount to declaring that recovery might be had in the absence of a contract. No authority so holding is cited, and we are confident none can be found.
Was dropping the letter in the mail box depositing it "in the post office at the place of mailing," within the meaning of the first condition of the policy? In the statutes of the United States the word "post office" has a well-defined meaning. Section 3829 et seq., Rev. St U.S. (U.S. Comp. St. 1901, page 2608). The postmaster general is required to establish post offices at such places on post roads as he may deem expedient, and a postmaster is to be placed in charge of each post office. As contemplated in these statutes, and in the sense in which the word is ordinarily used, "post office" is the room or building where the local business of the postal department is conducted. Thus Webster defines it as "an office under governmental superintendence, where letters, papers, and other mailable matters are received and distributed; a place appointed for attending to all business connected with the mail." That the word was employed in this sense appears from a comparison of the first and eighth clauses of the contract, and in the fair construction of the former. The first condition requires the letter of advice to be "deposited in the post office at the place of mailing," and the second exacts the mailing of the package by being "deposited and registered at the post office." In other words, the letter of advice may not be deposited in the post office of some place other than that of the village, town, or city where the package is registered. The language employed also indicates that it was intended to distinguish between the mere matter of mailing the letter and the place where mailed. For it is expressly required, not that it be mailed or placed in the United States mails, but that it be deposited at a particular place, to wit, the post office in the locality where the package has been mailed. In view of this language, we do not feel at liberty to say that the deposit in the mails generally, was intended. True, the mail box was shown to have been under the control and supervision of the postmaster, and letters and parcels mailed in it, though not carried to the post office, passed into his custody as completely as though left at the building occupied as a post office. But this cannot be held to constitute a mere receiving box three hundred and fifty yards from the building occupied by the postmaster, without physical connection therewith, a part of the post office itself. It was still a mail box, and not a post office. Otherwise boxes miles away may be appropriately so declared, and the deposit of letters in any of the mail boxes in a city having the free delivery system must be construed to be depositing in the post office. These may be under a separate bureau of the general government, as contended, but the mails are gathered therefrom at...
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