Sawyer v. Corse

• Citation: 58 Va. 230
• Parties: SAWYER v. CORSE.
• Decision Date: 23 January 1867
• Court: Supreme Court of Virginia

58 Va. 230

SAWYER v. CORSE.

Supreme Court of Appeals of Virginia.

January 23, 1867

1. When before the defendant files a plea the parties agree a case, and submit it to the decision of the court, the want of a plea or issue is cured by the agreement.

2. When there is a declaration and no plea, and a case agreed is submitted to the court for its decision, the plaintiff's cause of action, as set forth in the declaration, is submitted to the court without reference to any particular form of defence, and the defendant is entitled to judgment if the facts stated afford him a defence, of which he might have availed himself under any form of pleading.

3. When there is an issue in a cause, and it is submitted to the court upon a case agreed, the decision must be restricted to the issue.

4. A case agreed is a substitute for a special verdict, and is subject to like rules. It must state facts and not merely the evidence of facts; and the court cannot infer other facts from those stated, unless they result as a legal conclusion or unless the parties agree that it may be done.

5. A public officer or other person who takes upon himself a public employment, is liable to third persons, in an action on the case, for any injury occasioned by his own personal negligence or default in the discharge of his duties.

6. A public officer is liable to third persons for any injury occasioned by the negligence or default of his private agent or servant in the discharge of his official duties.

7. A public officer is not responsible to third persons for the negligence or default of his official subordinates.

8. This principle of exemption from liability, for the defaults of its officers is not extended to municipal corporations, where the authority, though for the accomplishment of objects of a public nature, and for the benefit of the public, is one from the exercise of which, the corporation derives a profit or where the duty may be presumed to be enjoined upon the corporation in consideration of privileges granted.

9. A mail carrier is not an officer of the government, but is the private agent of the contractor for carrying the mail, and the contractor is liable to third persons for any injury sustained through the negligence or default of such agent in the performance of his duties.

10. The act of congress of March 3, 1825, Brightley's Dig. p 759, § 2, requires that mail carriers shall be sworn, and it is the duty of the contractor to see that this is done. If the carrier is not sworn he is the private agent of the contractor, for whose defaults the contractor is liable to third persons, even if on being sworn the contractor would not be liable for his acts. And it is not sufficient that the mail carrier took the oath when acting for a former contractor.

11. The fact that the mail carrier did not take the oath prescribed does not make the contractor an insurer, but he is liable to third persons for injury caused by the negligence or default of the carrier.

This was an action on the case in the Circuit court of Alexandria county, brought in February, 1854, by John D. Corse against Frederick P. Sawyer, to recover an amount of money lost out of the mail between Alexandria and Washington, on a route on which Sawyer was the mail contractor. The declaration contained three counts. In the first, after stating that Sawyer was the contractor for carrying the mail on the route between Alexandria and Washington, and that the plaintiff had deposited a sealed letter, containing $988 in bank notes, in the post office at Alexandria, to be carried by the mail to Washington, and the delivery of it to the defendant, charged that by the negligence, carelessness and default of the defendant the letter and its contents were lost.

The second count set out that the defendant had employed Archibald Fleming as his agent and servant to carry the mail, and that through the carelessness, negligence and default of Fleming the letter and its contents were lost. And the third count charged that Fleming was a careless, faithless and incompetent person.

In May, 1856, without a plea filed by the defendant, or issue in the cause, came the parties by their attorneys, and a case was agreed by them to be argued in lieu of a special verdict. From the case agreed it appeared as follows:

On the 6th of December, 1853, the plaintiff enclosed in and sealed up a letter addressed to Maury & Morton, at the city of Richmond, current notes of Virginia banks amounting to the sum of nine hundred and eighty-eight dollars, the property of the plaintiff, and on the same day deposited this letter in the post office at Alexandria, to be forwarded in due course of mail, by way of Washington city, to Richmond, to the persons to whom it was addressed. The letter was on the 6th of December duly mailed at Alexandria, and along with other mail matter deposited in a United States mail bag, which was duly locked by the postmaster, and this mail bag was, on the same day, about 4 o'clock in the evening, delivered by the postmaster at the post office, together with another mail bag of larger size, containing mail matter, to one Archibald Fleming, who was at the time in the employment of the defendant, who was then the contractor with the government of the United States for carrying the mail between the city of Alexandria and Washington.

Fleming having received the said mail bags, started immediately, on horseback, to carry them from the post office in Alexandria to the postoffice in Washington city. When he received the mail bags he placed them upon the saddle, which was upon the horse to be ridden by him in carrying them, and seating himself upon them started for the post office in Washington. When he had gone about two miles he found that the smaller bag, the one which contained the letter aforesaid, had, without his knowledge or observation, slipped from under him after his departure from the post office at Alexandria. He immediately returned along the route he had traveled, and made diligent search for the missing bag, but was unable to find it, though it was still daylight, and the said mail bag, with all the matter therein contained, was wholly lost. It was agreed that this mail was most usually carried on the steamboats plying between the two cities, sometimes along the turnpike road, and sometimes along the tow-path of the Alexandria canal, and that at the time of the loss the steamers were not running, in consequence of the ice in the river, and that the tow-path was easier than the turnpike for the horse to travel upon, and it was little farther than the route by the turnpike. Fleming had been the employee from time to time of various contractors to carry the mail between the cities of Alexandria and Washington and elsewhere, and had always been a faithful, diligent and careful agent. Many years previous to the time of this loss, and whilst he acted in the same capacity as the employee of the Hon. William Smith, as a contractor to carry the United States mail, he was sworn faithfully to perform his duties; but he took no oath whilst in the employment of the defendant. It was agreed that either party might refer to any law of Congress or regulation of the post office department.

The contract between Sawyer and the government under which the mail was carried at the time of the loss of the letter as aforesaid, is set out at length in the case agreed, and it is presumed is in the usual form. It shows the compensation for carrying the mail for a year was four hundred and fifty dollars, and it contained, among other covenants on his part, the following:

Second. To carry said mail in a safe and secure manner, free from wet or other injury, under a sufficient oilcloth or bear skin.

Third. To take the mail and every part of it from, and deliver it and every part of it at, each post office on the route, or that may hereafter be established on the route, and into each post office at the end of the route, and into the post office at the place at which the carrier stops at night, if one is there kept, and if no office is there kept to lock it up in some secure place at the risk of the contractor.

He and his sureties also bound themselves to be answerable for the person to whom the said contractor should commit the care and transportation of the mail, and accountable to the United States for any damages which might be sustained by the United States through his unfaithfulness or want of care, and that said contractor would discharge any carrier of said mail whenever required so to do by the postmaster general.

The cause came on to be heard upon the case agreed in November, 1858, when the court gave a judgment for the plaintiff for nine hundred and eighty-eight dollars, with legal interest thereon from the 6th of December, 1853, until paid, and his costs. And thereupon Sawyer applied to this court for a writ of error to the judgment, which was allowed.

Daniel, for the appellant, contended:

First. That no issue had been made up in the cause, and for that error the judgment must be reversed.

Second. The evidence did not sustain the first and third counts; and on the second count that the contractor was not liable for the negligence of the carrier; and that in fact there had been no negligence.

On the first head he insisted that the contractor was not a common carrier. He made no contract with the public; receives no pay from the public; and made no warranty to the public.

That both the contractor and the carrier were public officers each liable for his own acts, but not for the acts of the other. That in view of the regulations of the post office department the carrier was not an agent of the contractor. That after the nomination of the carrier to the department and his...