Mr. Louis S. Beedy, of San Francisco, Cal., for petitioners.
Mr. W. D. Mitchell, Sol. Gen., of Washington, D. C., Mr. Assistant Attorney General Letts, and Messrs. J. Kennedy White, of Buffalo, N. Y., and Gardner P. Lloyd, of New York City, for the United States.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Upon his appointment as postmaster at Fairbanks, Alaska, petitioner Deal executed the ordinary official bond, with the Fidelity & Guaranty Company as surety, conditioned that he 'shall faithfully discharge all duties [274 U.S. 277, 278] and trusts imposed on him as postmaster either by law or by the regulations of the Post Office Department,' etc. The United States sued on this bond in a District Court of Alaska and asked judgment for $9,900, the amount of currency abstracted from a package deposited in the Fairbanks office for registration and transmission. Judgment upon a verdict went for them and was affirmed by the Circuit Court of Appeals, Ninth Circuit, notwithstanding errors by the trial court, recognized, but held to be harmless. 11 F.(2d) 3.
Replying to the petition for certiorari from this court, the Solicitor General very properly said:
The trial judge charged the jury upon three inconsistent theories: (1) That the postmaster was liable for the abstracted money only if guilty of some negligence which caused the loss; (2) that liability existed if he had violated some regulation of the Post Office Department respecting care of the registered package, although not shown to be proximate cause of the loss; (3) that the money taken, being property of the United States, was public funds, and the postmaster became liable therefor as an insurer as though it had been received from sale of stamps or money orders.
Among other things, the record discloses-
That on September 15, 1921, the First National Bank deposited at the Fairbanks post office for registration and transmission a package addressed to the disbursing agent at Healy, Alaska, via Nenana, which contained $9,900 in currency and some silver belonging to the United States. The clerk who received and registered it thought the package contained money, but was not so advised. Another clerk placed it in an iron safe and left the door on the day combination. [274 U.S. 277, 279] That during the night of September 15 petitioner Deal permitted an unauthorized person to enter the office. September 16 the package was placed in the pouch destined to Nenana. Upon its arrival at that place the currency was gone-a magazine filled the space.
That some evidence touching treatment of the package at the Fairbanks office and much testimony concerning transportation, tended to show the bills were abstracted while it remained there.
Considering the serious nature of the errors committed by the trial court and upon the entire record, we must conclude that they caused material prejudice to the petitioners' substantial rights. Act Feb. 26, 1919, c. 48 (40 Stat. 1181 (Comp. St. 1246)). Accordingly, the challenged judgment must be reversed, and the cause remanded for another trial. Under this conclusion, we need only consider matters probably important for further conduct of the cause.
The Circuit Court of Appeals properly rejected, and the Solicitor General does not rely upon, the theory that under section 3846, R. S., being Comp. St. 7208 (section 360, Postal Regulations 1913), the postmaster became liable for the registered package as an insurer. That section provides:
Public money, within this provision, 'obviously is money belonging to the United States in such sense that it may be ordered by the Postmaster General to be transferred or paid out.' Smyer v. United States (Feb. 21, 1927) 273 U.S. 333 , 47 S. Ct. 375.
It is admitted that petitioner Deal failed to observe certain regulations intended to secure safety of registered matter; but it is stoutly denied that the evidence showed any causal connection between such negligence or disregard of duty and the loss sustained. [274 U.S. 277, 280] During 1921, the 1913 Edition, Postal Laws and Regulations, was in force. Sections which require special consideration follow:
Did section 291 impose liability for theft from the registered package while held by the postmaster and not protected as the Regulations required, without evidence to show that the loss resulted from failure to observe them? If so, it was unnecessary to show such causal connection, as the United States maintain. But, if section 940 defined the responsibility, as he insists, that relation was essential.
Section 492, Edition 1879, Postal Laws and Regulations; section 700, Ed. 1887; section 669, Ed. 1893; section 278, Ed. 1902; section 328, Ed. 1924-correspond to section 291, Ed. 1913
Section 669, Edition 1893, does not differ materially from section 700, Edition 1887; and this is true of section 278, Edition 1902, except the latter declares 'the postmaster will be held responsible,' while the two previous editions say 'may be held.'
Section 864, Edition 1902 (to which section 940, Edition 1913, corresponds), provides:
For many years the Regulations imposed possible or positive liability upon postmasters for loss of registered mail when the office had been robbed and lack of care appeared; also the general provisions of section 940. And the argument is that we cannot deduce from the altered language of section 291, Edition 1913, intention to relieve from the strict liability theretofore imposed. But why the change if it meant nothing? And may petitioners be subjected to liability because of language found in ancient regulations of which, probably, they had no knowledge? [274 U.S. 277, 283] On the other hand is the suggestion that to hold postmasters responsible under section 291 for the loss of currency from registered packages would produce an anomalous situation, since this would leave the Postmaster General with full power, under section 150, to relieve where money order funds are lost but with no such power where money belonging to the United States is taken from a registered package the contents of which had not been revealed.
Difficulties, of course, arise from the words 'robbery' in section 291 and 'depredation upon' in section 940. Robbery, accurately defined, is 'the felonious and forcible taking from the person of another, goods or money to any value, by violence or putting him in fear.' Bouvier's Law Dictionary; Jolly v. United States, 170 U.S. 402, 404 , 18 S. Ct. 624. Depredation is 'the act of plundering; a robbing; a pillaging.' Century Dictionary. Apparently the Regulations contained no definition of these terms. Generally, at least, the word 'robbery' conveys the idea of violence and it is hardly appropriate to stealthy abstraction. One may well doubt the application of section 291 in the circumstances here disclosed. The author of section 328, of the Regulations, Edition 1924, probably noted that larceny, burglary and robbery are distinct offenses.
The structure and language of section 291 are not wholly inconsistent with the theory that postmasters 'shall be held responsible for the loss' of property described by the lines immediately preceding the quoted words; but for 'registered mail lost or rifled' 'when a post office has been robbed' they become responsible only if the 'depredation or loss be due to negligence or disregard of the Regulations.'
Certainly the Regulations of 1913 are far from clear. Considering the language and the arrangement of section 291 along with the general provisions of section 940, and not forgetting that both were prepared by the Post Office Department, are subject to alteration, impose large respon- [274 U.S. 277, 284] sibility, and should be construed according to the probable understanding of men who accept such offices, we conclude that section 940 prescribed the petitioners' responsibility, and the jury should have been charged accordingly. It was necessary to show causal connection between the loss and the alleged negligence or disregard of regulations.
We accept the ruling by the Circuit Court of Appeals as to the disputed items of cost taxed against petitioners by the trial court, except as to charges by witnesses for travel outside the district. That item should be eliminated.