United States v. Atlantic Coast Line R. Co.

• Decision Date: 09 July 1913
• Docket Number: 23.
• Parties: UNITED STATES v. ATLANTIC COAST LINE R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

206 F. 190

UNITED STATES v. ATLANTIC COAST LINE R. CO.

No. 23.

United States District Court, E.D. North Carolina.

July 9, 1913

H. F Seawell, Dist. Atty., of Carthage, N.C., and Chapman W Maupin, Sp. Atty., of Washington, D.C., for the United States.

George B. Elliott, Chas. A. Townes, and Davis & Davis, all of Wilmington, N.C., for defendant.

CONNOR District Judge.

Action for damages for loss of mail equipment and registered mail matter, while in transit over defendant's line of railroad.

Plaintiff declared: (1) For destruction of mail pouches and other equipment, of the value of $135.85, the property of plaintiff, alleged to have been placed in the possession of defendant pursuant to a contract of carriage and destroyed by the negligence of defendant's employes. (2) For destruction or loss of certain diamonds, of the value of $6,208.27, and other registered mail matter, of the value of $2,50, of which plaintiff was the bailee as registered mail matter, while in transit over defendant's road pursuant to a contract for carriage. (3) For that defendant negligently permitted its employes and others to convert to their own use certain diamonds, while in the possession of defendant under a contract for carriage.

Issues arising upon the pleadings and set out in the record, were submitted to and answered by the jury, whereupon a stipulation was made between the parties that the judge upon the verdict, the facts found by the court from the depositions and exhibits, and the admissions in the pleadings, should render such judgment as, in his opinion was in accordance with law; each party saving all exceptions set out in the record. The court finds the following facts:

Defendant operates a line of railroad connecting, at Weldon, N.C., with other lines of road, from the north, to the South Carolina state line, and connecting with other lines of road to the south. Pursuant to the provisions of acts of Congress, plaintiff, by its Postmaster General, on February 13, 1900, entered into a contract with defendant, which was in force and effect at all times thereafter to and including April 18, 1904, whereby defendant contracted to carry for plaintiff such foreign and domestic mail and mail equipment as was delivered to it in accordance with the acts of Congress and the regulations of the Post Office Department, over the line of said road from Weldon, N.C., to the South Carolina line, known and designated as 'Mail Route No. 118,002,' at a stipulated price per mile. On said 18th day of April, 1904, there existed an authorized United States mail service, known and designated as the 'Washington and Charleston Railway Post Office,' extending from Washington, D.C., to Charleston, S.C., and thence south, of which said line defendant's railroad formed a part.

On and prior to said date there was existing and in force a postal convention, entered into between the United States of America and the republic of France, whereby the former accepted and carried registered mail, and other mail matter, originating in the territory of the latter, and ending in or passing through the territory of the former. By the terms and provisions of said convention certain articles, including diamonds and other jewels, having a salable value, were prohibited from being placed in or sent through registered mail originating in France and coming to or passing through the United States. On or about the 8th day of April, 1904, the firm of Rousselon Freres & Co., residents of Paris, France, placed in a sealed package, addressed to Garcia Corrugedo y Sabrino, at Havana, Cuba, 32 cut diamonds, and placed the said sealed package and registered same in the post office at Paris, France, for transmission through the mail, via the United States of America, to the addressees at Havana. Said diamonds were sent to the addressees on consignment for sale for account of the owners. Said package, containing said diamonds, was so placed in the post office, and registered, in violation of the laws and postal regulations of the republic of France and of the terms and provisions of the postal convention concluded between the United States and the republic of France. Said package, in a pouch with other foreign mail, was brought from Paris to Havre by rail, and from Havre to New York in a steamship, as a part of the foreign mail, placed in the mail car, attached to the train of the Pennsylvania Railroad at Jersey City, and carried to Washington, D.C. It was there placed in the mail car attached to defendant's train No. 35, going south, April 18, 1904, over the route known as the 'Washington and Charleston Railway Post Office. ' The mail pouch containing said registered package was placed in the mail car in charge of the railway postal clerks and other employes of plaintiff, to whom were assigned the usual powers and duties prescribed by law and the postal regulations for such clerks and employes.

On the night of April 18, 1904, defendant's train No. 35 collided with defendant's train No. 8, standing on defendant's track at Lucama, a station on defendant's line of road in the state of North Carolina. The collision was caused by the negligence of defendant's employes in charge of train No. 8, and not by the negligence of the employes in charge of train No. 35. There was no evidence tending to show any defect in the construction or condition of defendant's track, engine, or equipment, headlight, brakes, or other ways and appliances; nor was there any evidence tending to show any negligence on the part of defendant in the selection of its employes in charge of either of its trains. The negligence of the employes in charge of train No. 8 consisted in a failure to obey the rules prescribed for the safety of trains approaching another train standing on the track. The mail car attached to train No. 35 was destroyed by fire, originating, by reason of said collision, in a freight car, being a part of train No. 8. The mail pouches and mail equipment in the car were destroyed. Neither the postal authorities nor employes in the post office at Paris, nor the postal authorities nor employes of the United States mail service, nor those of the defendant corporation, had any knowledge, notice, or information that the registered package mailed by Rousselon Freres & Co. in Paris contained diamonds, nor did they have any notice or knowledge of the character or value of the contents of said package, nor of the registered package mailed at Boston, Mass. The only marks or words on said packages when placed in the mail, were the names of the addressees and point of destination. The postal clerks, route agents, and other employes of the government, one of whom was injured in said collision, were carried by another of defendant's trains, immediately after the collision, to Fayetteville, N.C., a station over defendant's road, 70 miles distant from Lucama. None of them returned to Lucama.

On the day following the collision, while the servants of defendant were engaged in removing the debris and ashes from the track, a person not connected with nor in the employment of defendant picked up from the ashes near the track a diamond. He did not know what it was-- kept it two or three weeks before learning its character or value. Another person, not in the employment of defendant, found in the ashes two diamonds, not knowing what they were or their value. During that week or ten days following several persons, raking among and sifting the ashes, found several diamonds at the place where the mail car was burned. They were carried to a jeweller, living in a town some six miles distant, who informed such persons of their character and value. The postal clerks and other employes of the government had no notice of the finding of the diamonds.

About 22 diamonds were found and sold by persons searching for them in the ashes. The safe transmission of the diamonds was insured by a French insurance company, which paid to the owners their full value. There was, in addition to the package containing the diamonds, a package in the registered mail, containing a medallion of the value of $2.50, mailed at Boston, Mass., addressed to Mrs. Garris, Smoke, S.C., which was destroyed by fire. The plaintiff paid to the addressee the value of the medallion. There is no evidence that plaintiff has paid Rousselon Freres & Co. or any one else the value of the diamonds, or that any claim has been made therefor.

Pursuant to the provisions of section 3962 of the Revised Statutes (U.S. Comp. St. 1901, p. 2704, 5 Fed.Stat.Anno. 893) the Postmaster General on October 2, 1906, deducted from the amount due defendant for mail service under its contract, 'because of the destruction of mail and equipment in the wreck of train 35, near Lucama, April 18, 1904, $500. ' It does not appear whether on October 2, 1906, plaintiff had notice that the diamonds were in the mail car. This action was instituted on the 9th day of September, 1907.

Defendant resists a recovery upon several grounds, all of which are urged in the oral argument and are set forth in the brief of counsel. It is insisted that no action will lie against defendant for the loss of the diamonds and other mail matter, or the pouches, by reason of the negligence of its employes, for that the defendant was neither a common carrier, nor a carrier for hire, but an instrumentality employed by the government in the performance of a governmental duty. In Atchison, T. & S.F. Ry. Co. v. U.S., 225 U.S. 640, 649, 32 Sup.Ct. 702, 703 (56 L.Ed. 1236), it is said:

'The Company, in carrying the mails, was not hauling freight, nor was it acting as a common carrier, with corresponding rights and liabilities; but in this respect it was serving as an agency of government, and as much subject to the laws and

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