Deal v. United States
| Decision Date | 22 March 1926 |
| Docket Number | No. 4631.,4631. |
| Citation | 11 F.2d 3 |
| Parties | DEAL et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
COPYRIGHT MATERIAL OMITTED
R. F. Roth, of Fairbanks, Alaska, for plaintiff in error Deal.
John A. Clark, of Fairbanks, Alaska, and Thomas, Beedy & Presley, of San Francisco, Cal., for plaintiff in error Guaranty Co.
Julien A. Hurley, U. S. Atty., and Earnest B. Collins, Asst. U. S. Atty., both of Fairbanks, Alaska.
Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.
It is contended that the complaint on which the case was tried fails to state facts sufficient to constitute a cause of action. It is alleged that the defendant Deal was postmaster at Fairbanks at the time in question; that the defendants executed to plaintiff a bond in the sum of $26,000, conditioned that the defendant Deal "should faithfully discharge all the faiths and trusts imposed on him as such postmaster either by laws or the regulations of the Post Office Department of the United States"; that on the 15th of September, 1921, the First National Bank of Fairbanks deposited in the post office at that place a parcel containing $9,937.65 belonging to the United States; that the parcel was addressed to the special disbursing officer of the Alaskan Engineering Commission at Healy, Alaska, by way of Nenana, and that it was duly stamped and registered; that, while the parcel was in the custody of the defendant Deal, it was opened and rifled of $9,900; that this loss was due to the negligence of the defendant Deal and his disregard of the postal laws and regulations; that said defendant "failed and neglected to use ordinary care in handling the said registered package, and failed and neglected to properly protect and safeguard the said registered package as registered mail matter, and failed and neglected to handle said registered package in the manner prescribed by law and the regulations of the Post Office Department, and handled the same in a careless and negligent manner, and in utter disregard of the law and the said regulations aforesaid, particularly of sections 361, 524, 940, and 1015 of the regulations of said Post Office Department promulgated in 1913; that by reason of the premises plaintiff sustained a loss of $9,900."
The complaint is not a model pleading, and we think certain specifications of defendants' motion to make more definite should have been allowed, but it is conceded that the action of the lower court in this respect is not reviewable here. The breach of the bond is sufficiently alleged within the rule declared in 9 C. J. 101; Guy v. McDaniel, 29 S. E. 196, 197, 51 S. C. 436; People ex rel. v. Lee, 32 N. W. 817, 820, 65 Mich. 557.
The facts with reference to the care taken of the package were within the knowledge of the defendant Deal. "It is sufficient, in a declaration upon negligence, to specify the particular act, the commission or omission of which caused the injury, conjoining with it a general averment that it was negligently * * * done, or omitted, and that it is unnecessary to go further, and particularize or point out the specific facts going to establish the negligence relied upon." Chaperon v. Portland Electric Co., 67 P. 928, 929, 41 Or. 39, 42. The complaint was not obnoxious to a general demurrer.
The defendants moved for a nonsuit, and also for a directed verdict. Error is assigned on the denial of these motions. The government introduced evidence from which the jury was warranted in finding that on the 15th of September, 1921, the First National Bank of Fairbanks deposited at the Fairbanks post office a package containing $9,900 in currency and $37.65 in silver, addressed to Frank Doner, Healy via Nenana, Alaska; that the money was government property, and was sent to Doner as disbursing agent for Alaskan Engineering Commission; that the package was registered, and believed by the clerk who received it to contain money; that it remained overnight in the Fairbanks post office, and left early in the morning of September 16th by rail for Nenana; that on leaving the post office it was contained in a locked mail sack which was still locked and intact when it reached Nenana. The sack was opened at Nenana, and the condition of the package indicated that it had been tampered with. On investigation it developed that the currency had been removed and a magazine substituted. It appeared that the sack from which the currency was abstracted had been fastened with a nail, and that other nails of the same type were found in the Fairbanks post office; also that there was a stack of magazines there from which the magazine in the mutilated package might have been taken. Section 361 of the Postal Regulations in force at the time contains the following language:
It appeared that the defendant Deal had not conformed to the above requirements. He did not change the combination on the safe which was in use, and on the night of September 15th the safe was fastened only with a day lock. The package in question was in this safe during that night. Section 524 of the regulations is as follows:
"Mails should not be made up or handled within reach of unauthorized persons, and such persons should be excluded from the room appropriated to the use of the post office while the mails are being opened or made up." The evidence showed that the defendant Deal violated this section also. There was further evidence that other regulations were disregarded by the postmaster at the time the package was in his custody.
The defendants challenge the sufficiency of the evidence on the ground that it does not appear that the rifling of the package resulted from the failure of the postmaster to conform to the regulations. We will assume, without deciding, that the evidence was insufficient to justify the jury in finding that the postmaster's failure to comply with the regulations proximately contributed to the loss of the currency.
The government contends that the liability of the defendants is established by proof that the package contained money belonging to the United States, and that this money was stolen while in the custody of the postmaster. It is contended that the case falls within the operation of section 3846, R. S. (section 7208, Comp. St.), which is as follows:
"Postmasters shall keep safely, without loaning, using, depositing in an unauthorized bank, or exchanging for other funds, all the public money collected by them, or which may come into their possession, until it is ordered by the Postmaster General to be transferred or paid out." We are unable to agree with this contention. This statute has never been construed by any court as applicable to government money contained in a sealed package sent through the mail. It was certainly not the intention of Congress that such money should be kept by a postmaster "until it is ordered by the Postmaster General to be transferred or paid out." We think the above section is applicable only to money which, as such, comes into the possession of the postmaster.
The government also relies on section 291 of the regulations, which is in part as follows:
This section is not mentioned in the complaint, nor was it offered in evidence. It is, however, a part of the regulations published by the department in 1913 and a copy of which was in the possession of the defendant Deal. Prior to 1912 there were a number of statutes authorizing postal regulations, and by Act of Congress of August 24, 1912, a revised edition of the regulations was authorized (37 Statutes 541). The section above quoted is found in the edition so authorized. It is the duty of the courts to take judicial notice of these regulations. Caha v. U. S., 14 S. Ct. 513, 152 U. S. 211, 222, 38 L. Ed. 415.
The above section charges the postmaster with responsibility for money stolen in a post office robbery, "if he fails to exercise due care in the protection of the property." The property referred to is the property stolen, and the words "due care" are referable to the standard of care prescribed by other...
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