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5. Post office 7(1)-Postmaster held

chargeable with notice of his responsibility for money stolen in post office robbery.

Postmaster is chargeable with notice of his responsibility, under regulations of Post Office Department charging postmaster with responsibility for money stolen in post office robbery, if he fails to exercise due care in protecting it; bond requiring him faithfully to discharge all duties and trusts imposed by law and departmental regulations.

6. Post office Om7(1)-Postmaster is respon

sible as bailee charged with high degree of care.

General responsibility of postmaster is that of bailee charged with high degree of care.

7. Post office Om7(1)-Postmaster, not using

due care to protect registered mail, is absolutely responsible for money stolen in post office robbery, regardless of causal connection (Act Aug. 24, 1912, c. 389, 37 Siat. 541).

Under regulations of Post Office Department promulgated under Act Aug. 24, 1912, postmaster is absolutely responsible for money stolen in post office robbery, if he fails to exercise due care to protect such property, and government need not show that his want of care was proximate cause of loss.

8. Post office Om7(1)-Regulation defining

postmaster's liability in case of loss of registered letters from negligent misdelivery held not in conflict with regulation Imposing abso. lute responsibility for loss in post office robbery.

Post Office Department regulation, defining postmaster's responsibility for misdelivery, depredation on, or loss of, registered mail, from negligence or disregard of regulations, held not to conflict with regulation imposing absolute responsibility for loss in post office robbery, if postmaster did not use due care, regardless of causal connection.

9. Post office Om7(2)-in action on postmas.

ter's bond, evidence held sufficient to take case to jury.

In action on postmaster's bond, evidence that registered mail package containing government money was rifled, and that postmaster violated regulations defining his duty to protect such property, held sufficient to take case to jury.

10. Appeal and error 1033(5)-in action on

postmaster's bond for loss of government money in registered mall package, instruction held more favorable to defendants than they were entitled to have.

In action on postmaster's bond for loss, by theft, of government money from registered mail package, instruction directing verdict for plaintiff, if loss occurred, and postmaster failed to use full combination in locking safe, and otherwise requiring finding for defendants, held more favorable than defendants were entitled to.

12. Appeal and error 1170(9)- Instruction

making postmaster insurer of mail, though erroneous, held not prejudicial (Act Feb. 26, 1919 [Comp. St. Ann. Supp. 1919, § 1246]).

In action on postmaster's bond for loss of government's money in registered package, instruction directing verdict for plaintiff, if package was rifled in defendant's post office, though erroneous as making postmaster liable as insurer, was not prejudicial, where evidence of violation of regulations was uncontradicted and violations admitted, and did not require reversal under Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1246).

13. Post office m7(2)-Admission of evidence

that there were magazines, similar to one substituted for money in registered package, and nails similar to one used in repacking it, in defendant's post office, held not error.

In action on postmaster's bond for loss of government money from registered package, held, that it was within trial court's discretion to admit evidence that similar magazines to one substituted for money in package and nails similar to one used by thief in repacking it were in defendant's post office.

14. Post office 7 (2)-in action on post

master's bond, reading into record of depart. mental regulations defining postmaster's duty held not error.

In action on postmaster's bond, it was not error to permit reading into record of regulations of Post Office Department, including regulations not mentioned in complaint, defining postmaster's duties, obedience to which was guaranteed by bond.

15. Evidence en 151(4)-in action on post.

master's bond, testimony of register clerk that she believed registered package contained money held admissible to determine care package should receive.

In action on postmaster's bond for loss of government money from registered package, held, that testimony of register clerk that she believed package contained money was material in determining care package should receive; postmaster being responsible for such clerk's acts and omissions,

16. Costs Om 185-Mileage is taxable as costs

only for such distance as is necessarily trav. eled by witness from place to which subpæna will run.

Mileage is taxable as costs only for such distance as is necessarily traveled by witness from place to which subpena will run.

17. Witnesses a 24-Witness living more than

100 miles from place of trial, held entitled to mileage and per diem, regardless of whether order requiring his attendance is Indorsed on subpæna (Comp. Laws Alaska, f 1462).

Under Comp. Laws Alaska, 1462, witness residing more than 100 miles from place of trial, who attends, is entitled to his mileage and per diem, though order requiring his attendance was not indorsed on subpæna, as subpæna runs to any point in territory.

11. Post office @m7(1)-Postmaster is not insurer of registered mail under his control.

Postmaster is not insurer of registered mail under his control

11 F.(20) 3 18. Costs 184(10)-Witnesses' per diem the First National Bank of Fairbanks deposlimited to days of attendance at trial and not ited in the post office at that place a parcel taxable for time spent in coming and going containing $9,937.65 belonging to the United (Comp. Laws Alaska, 1462).

States; that the parcel was addressed to the Under Comp. Laws Alaska, § 1462, witnesses' per diem is limited to days in attendance special disbursing officer of the Alaskan Enat place of trial, and is not taxable for time gineering Commission at Healy, Alaska, by spent in coming and going.

way of Nenana, and that it was duly stamped 19. Costs max 186—Necessary costs of deputy the custody of the defendant Deal, it was

and registered; that, while the parcel was in United States marshal in going to and returning from attendance at court as witness held opened and rifled of $9,900; that this loss taxable as costs.

was due to the negligence of the defendant Deputy United States marshal, under sal- Deal and his disregard of the postal laws and ary, who traveled on pass in attending trial as regulations; that said defendant "failed and witness, was entitled to his necessary expenses neglected to use ordinary care in handling in going and returning, and such expenses were taxable as costs.

the said registered package, and failed and

neglected to properly protect and safeguard In Error to the District Court of the matter, and failed and neglected to handle

the said registered package as registered mail United States for the Fourth Division of the said registered package in the manner preTerritory of Alaska; Cecil H. Clegg, Judge. scribed by law and the regulations of the

Action by the United States against T. H. Post Office Department, and handled the Deal and another. Judgment for the Unit

same in a careless and negligent manner, and ed States, and defendants bring error. Af- in utter disregard of the law and the said firmed in part, and reversed in part. regulations aforesaid, particularly of sections

This is an action on a bond executed by 361, 524, 940, and 1015 of the regulations of plaintiffs in error, hereinafter referred to as said Post Office Department promulgated in the defendants. The bond was given to se- 1913; that by reason of the premises plaintiff cure the faithful performance by the defend- sustained a loss of $9,900." ant Deal of his duties as postmaster at Fair- The complaint is not a model pleading, banks, Alaska. It is charged that the bond and we think certain specifications of defendwas breached by the loss of $9,900 stolen ants' motion to make more definite should from a package of registered mail while in have been allowed, but it is conceded that his custody. Judgment was entered on a ver- the action of the lower court in this respect dict for plaintiff, and defendants have sued is not reviewable here. The breach of the out this writ of error.

bond is sufficiently alleged within the rule R. F. Roth, of Fairbanks, Alaska, for declared in 9 C. J. 101; Guy v. McDaniel,

29 S. E. 196, 197, 51 S. C. 436; People ex plaintiff in error Deal.

John A. Clark, of Fairbanks, Alaska, and rel. v. Lee, 32 N. W. 817, 820, 65 Mich. 557. Thomas, Beedy & Presley, of San Francisco, [2] The facts with reference to the care takCal., for plaintiff in error Guaranty Co.

en of the package were within the knowledge

of the defendant Deal. “It is sufficient, in a Julien A. Hurley, U. S. Atty., and Earnest B. Collins, Asst. U. S. Atty., both of Fair. declaration upon negligence, to specify the banks, Alaska.

particular act, the commission or omission

of which caused the injury, conjoining with Before HUNT, RUDKIN, and McCAM- it a general averment that it was negligently ANT, Circuit Judges.

done, or omitted, and that it is un

necessary to go further, and particularize or McCAMANT, Circuit Judge. [1] It is point out the specific facts going to establish contended that the complaint on which the the negligence relied upon.” Chaperon v. case was tried fails to state facts sufficient to Portland Electric Co., 67 P. 928, 929, 41 Or. constitute a cause of action. It is alleged 39, 42. The complaint was not obnoxious to that the defendant Deal was postmaster at a general demurrer. Fairbanks at the time in question; that the The defendants moved for a nonsuit, and defendants executed to plaintiff a bond in the also for a directed verdict. Error is assignsum of $26,000, conditioned that the defend- ed on the denial of these motions. The govant Deal "should faithfully discharge all the ernment introduced evidence from which the faiths and trusts imposed on him as such jury was warranted in finding that on the postmaster either by laws or the regulations 15th of September, 1921, the First National of the Post Office Department of the United Bank of Fairbanks deposited at the FairStates”; that on the 15th of September, 1921, banks post office a package containing $9,900

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in currency and $37.65 in silver, addressed to especially to mail contractors and their driv. Frank Doner, Healy via Nenana, Alaska; that the money was government property, "Mails should not be made up or handled and was sent to Doner as disbursing agent within reach of unauthorized persons, and for Alaskan Engineering Commission; that such persons should be excluded from the the package was registered, and believed by room appropriated to the use of the post ofthe clerk who received it to contain money; fice while the mails are being opened or made that it remained overnight in the Fairbanks up.” The evidence showed that the defendpost office, and left early in the morning of ant Deal violated this section also. There September 16th by rail for Nenana; that on was further evidence that other regulations leaving the post office it was contained in a were disregarded by the postmaster at the locked mail sack which was still locked and time the package was in his custody. intact when it reached Nenana. The sack The defendants challenge the sufficiency was opened at Nenana, and the condition of of the evidence on the ground that it does not the package indicated that it had been tam- appear that the rifling of the package repered with. On investigation it developed sulted from the failure of the postmaster to that the currency had been removed and a conform to the regulations. We will assume, magazine substituted. It appeared that the without deciding, that the evidence was insack from which the currency was abstracted sufficient to justify the jury in finding that had been fastened with a nail, and that oth- the postmaster's failure to comply with the er nails of the same type were found in the regulations proximately contributed to the Fairbanks post office; also that there was a

loss of the currency. stack of magazines there from which the [3] The government contends that the liabil. magazine in the mutilated package might ity of the defendants is established by proof have been taken. Section 361 of the Postal that the package contained money belonging Regulations in force at the time contains the to the United States, and that this money following language:

was stolen while in the custody of the post"Where stamps and funds are kept in master. It is contended that the case falls iron safes with 'combination locks, such safes within the operation of section 3846, R. S. shall be carefully and completely locked at (section 7208, Comp. St.), which is as folnight or when the office is left without occu

lows: pants. No credit will be allowed for losses "Postmasters shall keep safely, without from safes fastened only with what is termed loaning, using, depositing in an unauthoriza 'day lock' or 'day combination.'

ed bank, or exchanging for other funds, all "A postmaster upon taking charge of his the public money collected by them, or which office shall immediately change the combina- may come into their possession, until it is ortion on every safe therein; and where at any dered by the Postmaster General to be transtime a safe is procured, either new or sec- ferred or paid out.” We are unable to agree ond-hand, he shall immediately change the with this contention. This statute has never combination. Failure to make such change been construed by any court as applicable to shall be considered as prima facie evidence of government money contained in a sealed contributory negligence on the part of the package sent through the mail. It was cerpostmaster in any case where claim is made tainly not the intention of Congress that for credit for money or other property stolen such money should be kept by a postmaster from such safes which have been opened "until it is ordered by the Postmaster Genwithout resort to violence."

eral to be transferred or paid out.” We It appeared that the defendant Deal had think the above section is applicable only to not conformed to the above requirements. money which, as such, comes into the posHe did not change the combination on the session of the postmaster. safe which was in use, and on the night of [4,5] The government also relies on section September 15th the safe was fastened only 291 of the regulations, which is in part as with a day lock. The package in question follows: was in this safe during that night. Section “When a post office has been robbed, the 524 of the regulations is as follows:

postmaster shall immediately report all the Postmasters shall not permit any per- facts to the chief inspector and to the post sons except duly sworn assistants, clerks, office inspector in charge of the division in letter carriers, and post office inspectors or which the post office is located.

The other authorized representatives of the de- report should give, if possible, all the circumpartment to have access to any mail matter stances connected with the robbery, the date, in the post office. This prohibition extends a detailed inventory of the loss, the denom

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11 F.(20) 3 inations of stamped paper stolen, the amount sponsibility of postmasters and the former of postal and money-order funds and of each their responsibility when post offices are robclass of government property. The postmas- bed. The general responsibility of a postter shall be held responsible for the loss if master is that of a bailee charged with a he fails to exercise due care in the protection high degree of care. United States v. Rogde of the property."

(D. C.) 214 F. 283, 295. If his post office This section is not mentioned in the com- is robbed, and he has failed to exercise due plaint, nor was it offered in evidence. It is, care of the stolen property, he is responsible however, a part of the regulations published absolutely, and it is not necessary for the by the department in 1913 and a copy of government to show that his want of care which was in the possession of the defendant was the proximate cause of the loss. Deal. Prior to 1912 there were a number of [9] The evidence warranted a finding by the statutes authorizing postal regulations, and jury that the parcel was rifled in the Fairby Act of Congress of August 24, 1912, a banks post office, and that the defeudant revised edition of the regulations was au- Deal in his care of the parcel had violated the thorized (37 Statutes 541). The

regulations defining his duty with reference above quoted is found in the edition so au- thereto. This was sufficient to take the case thorized. It is the duty of the courts to take to the jury. judicial notice of these regulations. Caha v. [10] There are 77 assignments of error. To U. S., 14 S. Ct. 513, 152 U. S. 211, 222, 38 notice them all in this opinion is impossible. L. Ed. 415.

We can only state the principles of law which The above section charges the postmaster control the determination of the case and with responsibility for money stolen in a pass on the assignments of error most insistpost office robbery, “if he fails to exercise ed upon. The twenty-fourth instruction to due care in the protection of the property." the jury was as follows: The property referred to is the property

“You are instructed that, if you find and stolen, and the words “due care” are refer- believe from a preponderance of the evidence able to the standard of care prescribed by in the case that a loss of $9,900 occurred to other regulations. It is often difficult to de- the plaintiff herein in the post office at Fairtermine whether negligence of the postmaster banks, Alaska, and that the defendant Deal has contributed to a loss of mail stolen from failed to fully lock the safe in which was a post office. · The postal authorities have contained the registered package in controseen fit to charge the postmaster with abso- versy during the night of September 15, lute responsibility if he has neglected the care 1921, and morning of September 16, 1921, prescribed by the regulations. The defend- and that he did not use the full combination ant Deal was chargeable with notice of this thereof for the purpose of locking it at said responsibility when he qualified as postmas- time, you should return a verdict for the ter on the 19th of November, 1918. The con- plaintiff, otherwise your verdict should be dition of the bond executed by defendants for defendants." was that “the said Thomas H. Deal shall This instruction was more favorable to faithfully discharge all duties and trusts im- the defendants than they were entitled to. posed on him as postmaster either by law or For reasons already pointed out, plaintiff by the regulations of the Post Office Depart- was entitled to a verdict if the jury found ment.” One of the duties imposed upon him the facts to be as stated in the instruction. was to make good any loss by robbery, if he The defendants, however, were not necessashould fail to exercise due care in the pro- rily entitled to a verdict if the jury failed to tection of the property stolen.

find the facts to be as so stated. [6-8] The defendants contend that the re- Similar instructions were given with refsponsibility of postmasters in handling reg- erence to the other respects in which the eviistered mail is determined by section 940 of dence tended to show that the defendant Deal the regulations, which is as follows:

had violated the regulations with reference to "Postmasters and other postal employees his care of the package. These instructions will be held personally responsible by the were more than fair to the defendants. Post Office Department for the wrong deliv- [11, 12] The twenty-second instruction was ery, depredation upon, or loss of any regis- as follows: tered letter or parcel if such wrong delivery, "In this connection you are instructed depredation, or loss be due to negligence or that, if you find and believe from a prepondisregard of the regulations."

derance of all the evidence in the case that There is no conflict between sections 291 the defendant Deal knew that the registered and 940. The latter defines the general re- package in controversy contained money, and that said money was the property of the defined the duties of the postmaster, obediUnited States, and that the said registered ence to which was guaranteed by the bond. package was looted and rifled of $9,900 in [15] The court properly denied the motion currency while it was in his

care of defendants to strike out the testimony of and custody and control in the United States Evalyn Houck, the register clerk in the post post office at Fairbanks, and that when the office, that she believed the package containsaid registered package was dispatched from ed money. This belief was material in dethe said post office it had the bottom thereof termining the care that the package should torn open and fastened temporarily with an receive. The defendant Deal was responsieight-penny or ten-penny finishing nail, and ble for Miss Houck's acts and omissions. the sum of $9,900 which it formerly contain- United States v. Barker, 100 F. 34, 39, 40 ed had been abstracted and removed there. C. C. A. 264. from, and it then contained only $37.65 of It is unnecessary to prolong this opinion the money which it had contained at the time by reviewing the other errors assigned. We it was delivered into the post office by the have examined them all. There are inaccuFirst National Bank, if you find from a pre- racies in the instructions, but we do not find ponderance of the evidence it was so deliver- that they prejudiced the defendants. The ed, and that at the time the said registered court fairly submitted to the jury the quespackage left the said post office in the regis- tion of whether the package was rifled in the try pouch it contained only $37.65 in silver, Fairbanks post office. The verdict for plainand a copy of the Popular Mechanics maga- tiff concludes the defendants on this question. zine, and a finishing nail holding the cut por- The concession that the regulations relevant tions of the sack together, and that thereby to the care of this package were violated is the plaintiff herein sustained a loss of $9,- all that is additionally required to spell the 900, and that the plaintiff has demanded liability of the defendants. from the defendants and each of them the [16, 17] There is a further controversy payment of said sum of $9,900, and that growing out of the settlement of the cost bill. they, and each of them, have refused to pay Section 1462 of the Compiled Laws of Alasthe same, then I instruct you that you should ka is as follows: return a verdict for the plaintiff; otherwise "A witness is not obliged to attend for your verdict should be for the defendants." oral examination or otherwise at a place disThis instruction contains no reference to the tant more than one hundred miles from the regulations whose violation was charged. It place where he resides or at which he may be holds the postmaster liable as an insurer, and served with a subpæna; except that, in an acdirects a verdict for plaintiff in case the jury tion or proceeding pending in a court of finds that the package was rifled while in the record the court or judge thereof, upon the Fairbanks post office. The postmaster is not affidavit of the party, or someone on his bean insurer of the registered mail under his half, showing that the testimony of the witcontrol. United States v. Rogde (D. C.) 214 ness is material and his oral examination imF. 283. If there were any controversy about portant and desirable, may indorse upon the the postmaster's violation of the regulations, subpæna an order for the attendance of the this instruction would require the reversal of witness; the service of such subpona and orthe judgment. The testimony with reference der and the payment of legal fees to the witto these violations is uncontradicted, and the

ness are sufficient to require his attendance, violations are expressly admitted in defend- if he be served within the district.” ants' brief. The instruction was therefore

[18] Certain witnesses for plaintiff were suberror without prejudice. Such error does pænaed at places within the district more not call for reversal. Section 1246, Comp. No affidavit was filed as required by the above

than 100 miles distant from the place of trial. St. Ann. Supp. 1919, 40 Statutes 1181.

statute. Defendants contend that no mile(13, 14] It was within the discretion of the

age can be taxed in excess of 200 miles. The trial court to admit evidence that there were weight of authority in the federal courts supin the Fairbanks post office nails and maga- ports the rule that mileage is recoverable zines similar to those used by the thief in re- only for such distance as is necessarily travpacking the rifled package. The court did eled by a witness from a place to which a not err in permitting the witness Neil to read subpæna will run. United States v. Southinto the record extracts from the regulations ern Pacific Co. (C. C.) 172 F. 909; United of 1913 and the Postal Guide of 1914, in- States v. Southern Pacific Co. (D. C.) 230 F. cluding regulations and instructions not men- 270; Kirby v. United States (C. C. A.) 273 tioned in the complaint. These publications F. 391. A subpæna will run to any point in

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