24

not hold the latter, for the reason that the carrier is primarily and not secondarily liable for the loss.23 When the owner insures the goods for his benefit, the insurance company paying such loss is subrogated to the owner's rights against the carrier. Here the carrier is primarily liable for the loss, and the insurance company is secondarily liable, though the owner may proceed against the insurance company without resorting to his remedy against the carrier. The discussion of this and similar questions belongs more properly to the subjects of equity and insurance.

Neither can the carrier require, as a condition precedent to receiving the goods, that the owner insure them for the carrier's benefit. If the contract of carriage "contained a provision that the carrier would not be liable unless the owner should insure for its benefit, such provision could not be sustained, for that would be to allow the carrier to decline the discharge of its duties and obligations as such, unless furnished with indemnity against the consequences of failure in such discharge. Refusal of the owners to enter into a contract so worded would furnish no defense to an action to compel the company to carry, and submission to such a requisition would be presumed to be the result of duress of circumstances, and not binding." 25.

23 Gales v. Hailman, 11 Pa. 515. By contract, the carrier may have the benefit of insurance effected by the shipper. Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173; Jackson Co. v. Boylston Mut. Ins. Co., 139 Mass. 508, 2 N. E. 103, 52 Am. Rep. 728; British & Foreign Marine Ins. Co. v. Gulf, C. & S. F. R. Co., 63 Tex. 475, 51 Am. Rep. 661; Rintoul v. New York Cent. & H. R. R. Co. (C. C.) 17 Fed. 905; Hardman v. Brett (C. C.) 37 Fed. 803.

24 Hall v. Nashville & C. R. Co., 13 Wall. 367, 20 L. Ed. 594; Louisville & N. R. Co. v. Manchester Mills, 88 Tenn. 653, 14 S. W. 314; H. C. Judd & Root v. New York & T. S. S. Co., 128 Fed. 7, 62 C. C. A. 515.

25 Fuller, C. J., in Inman v. South Carolina R. Co., 129 U. S. 128, 9 Sup. Ct. 249, 32 L. Ed. 612. See, also, Willock v. Pennsylvania R. Co., 166 Pa. 184, 30 Atl. 948, 27 L. R. A. 228, 45 Am. St. Rep. 674; The Seaboard (D. C.) 119 Fed. 375.

150. The post office department is a carrier of the mail, but, being a branch of the government, is not liable for loss of, or injury to, the mail, occurring in its transmission.

The post office department, were it judged by the accepted tests, would be considered a common, and not a private, carrier, and it is at least a quasi bailee of mail matter. Though the contrary may be true from an administrative viewpoint, in the eyes of the law there is no such separate legal entity as the post office department. It is merely a branch of the government, and the principal back of it is none other than the United States; but the United States, as a sovereign state, cannot be sued without its consent.1

The federal government has undertaken, as a matter of public convenience, the business of the transmission, distribution, and delivery of all mail matter. The holding out and service are public, and the post office department furnishes the administrative machinery for the conduct of the business. A very small fee, often a nominal one, is exacted for the service. Therefore, theoretically and ethically, the government owes some duties to the sender of mail as to its handling. But these duties have not been legally defined, and they cannot be legally enforced, since the government is not subject to suit at the hands of an individual. Therefore these duties can scarcely be called legal duties at all. The sender of mail is accordingly in the somewhat anomalous position of intrusting his goods to an instrumentality or agency which he cannot hold liable for its misconduct, and which he cannot haul before a court of justice.

1 Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N. E. 854, 8 L. R. A. 399; United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171; Langford v. United States, 101 U. S. 341, 25 L. Ed. 1010; Gibbons v. United States, 8 Wall. 269, 19 L. Ed. 453; Hill v. United States, 149 U. S. 593, 13 Sup. Ct. 1011, 37 L. Ed. 862; German Bank of Memphis v. United States, 148 U. S. 573, 13 Sup. Ct. 702, 37 L. Ed. 564; Schillinger v. United States, 155 U. S. 163, 15 Sup. Ct. 85, 39 L. Ed. 108.

There may be, as we shall see, however, recourse for the sender against the postmaster, mail contractor, carrier, or other individual. employed about the mails. Recent statutes, too, afford a limited indemnity to the sender for loss of such mail as has been registered. Under still more recent statutes, and the regulations of the post office department passed in pursuance thereof, provision is made, on the payment of a small fee, for the insurance up to a limited amount of packages sent under the parcel post system.

On the theoretical liability of the government, Mr. Schouler has this to say: "Should a common-law country ever submit to a legal exposition the rightful standard of government responsibility to individual bailors as a mail carrier, the courts would not probably reckon this at the extraordinary standard of a common carrier (since widely different considerations of public policy apply), but rather at that of ordinary bailees for hire; while perhaps, were it made to appear, from public tables, that the postage charged the injured individual served, not for actual recompense in the bailment, but merely to help defray the necessary costs of a transportation which the government carried on at a loss for the benefit of the public, the standard would fall to the register of gratuitous bailment. But that a bailment duty of some sort coexists on the part of the government, apart from the adequate means of enforcing it, we cannot reasonably doubt."

POSTMASTERS AND OTHER OFFICIALS

151. To senders of mail, postmasters and other officials of the post office department are individually liable for losses sustained only when such losses are due to:

(1) Their own immediate negligence or misconduct.

(2) Their negligence in either selecting subordinates or supervising their conduct.

(3) The acts of their private servants, who are not agents of the government.

Post, §§ 151, 152.

Act April 21, 1902, c. 563, 32 Stat. 117; Act March 4, 1911, c. 241, 36 Stat. 1337 (U. S. Comp. St. Supp. 1911, p. 1137); 5 Fed. St. Ann. pp. 871, 872; Fed. St. Ann. Supp. 1912, p. 301; U. S. Comp. St. 1901, pp. 2685, 2686; U. S. Comp. St. Supp. 1911, pp. 1137, 1138; Act March 3, 1903, c. 1009, § 1, 32 Stat. 1174 (U. S. Comp. St. Supp. 1911, p. 1137).

4 Act Aug. 24, 1912, c. 389, § 8, 37 Stat. 557; U. S. P. O. Regulations Oct., 1913, c. 2, § 488 (2), p. 272.

Bailments (2d Ed.) § 269.

Though the sender of mail has, ordinarily, no recourse against the government for loss that he has sustained, he can in many cases proceed against the postmaster or other officer, agent, or servant of the post office department, and hold him individually responsible for such loss. The nature of this responsibility, and its limitations, will next be discussed. It should be noted that the postmaster or other official of the department is clearly not a common carrier. Again, there is no contract between the sender and the individual post office official."

Own Immediate Negligence or Misconduct

We have just seen that the postmaster or other official is not a common carrier, and is not himself a party to the contract with the sender of the mail. Any duty, therefore, which is imposed upon him by law must arise out of the nature of his relation to the mail. This duty is placed at ordinary care, and for a breach of this duty, which is negligence, the postmaster is liable to the sender for the damage sustained by the latter, proximately and naturally flowing from this negligence.8

The sender has thus a legal right to exact of the post office official, be he postmaster, assistant, or clerk, the duty of exercising ordinary care in the handling of the mail. When the sender can trace his own loss to the negligent act or omission of a particular official, then he can hold such official personally responsible for such loss. The burden of connecting the loss and the negligence of the official rests upon the sender. When the postmaster or other official specifically authorizes a particular act on the part of a clerk or deputy, that act thereby becomes the act of the official, as well as

• Lane v. Cotton, 1 Ld. Raym. (Eng.) 646; Schroyer v. Lynch, 8 Watts (Pa.) 453; Central R. & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; BANKERS' MUT. CASUALTY CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO., 117 Fed. 434, 54 C. C. A. 608, 65 L. R. A. 397, Dobie Cas. Bailments and Carriers, 267; Id., 187 U. S. 648, 23 Sup. Ct. 847, 47 L. Ed. 348.

7 See cases cited in preceding note. See particularly the admirable statement in Central R. & Banking Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334. 8 RAISLER v. OLIVER, 97 Ala. 710, 12 South. 238, 38 Am. St. Rep. 213, Dobie Cas. Bailments and Carriers, 265; Christy v. Smith, 23 Vt. 663; Danforth v. Grant, 14 Vt. 283, 39 Am. Dec. 224; Wiggins v. Hathaway, 6 Barb. (N. Y.) 632; Dunlop v. Munroe, 1 Cranch, C. C. 536, Fed. Cas. No. 4,167; Teall v. Felton, 1 N. Y. 537, 49 Am. Dec. 352; Id., 12 How. (U. S.) 284, 13 L. Ed. 990; Maxwell v. Mellvoy, 2 Bibb (Ky.) 211.

Wiggins v. Hathaway, 6 Barb. (N. Y.) 632; Dunlop v. Munroe, 7 Cranch (U. S.) 242, 3 L. Ed. 329. See, also, Christy v. Smith, 23 Vt. 663; RAISLER v. OLIVER, 97 Ala. 710, 12 South. 238, 38 Am. St. Rep. 213, Dobie Cas. Bailments and Carriers, 265. These last two cases seem to establish a less stringent rule as to the evidence of the postmaster's negligence than the first two

cases.

of the clerk or deputy.10 What is negligence is to be judged by considerations which have been frequently discussed.

Negligence of Subordinates

The question of the liability of the postmaster or other official for the acts of a subordinate, when he is not himself immediately connected with such act, has been frequently before the courts and is one of no little practical importance. The leading case on the subject is Lane v. Cotton,11 decided in 1701. It was there decided, and it has since been generally held, that officers and agents of the post office are officers and agents of the government, and not agents and servants of the postmaster, and that, accordingly, while each officer or agent is personally liable to the sender of mail for his own negligence, his liability ends there, and he is not liable for the negligence of any other agent or servant. The rule is now well settled that a postmaster or other official, not in any way negligent himself, is not liable for the negligence or misconduct of clerks and assistants, even though these are appointed by him and under his control. The superior official, if his own record is clear, incurs no responsibility for the acts of his official subordinates in the department.12

When the duty of selecting subordinates rests upon the postmaster or other official, he must, in order to gain the exemption just outlined, first properly carry out this duty of selection.18 This he does by using due care and prudence in selecting as clerks and assistants only such persons as are competent to perform the duties. attached to these positions. When the postmaster or other official is negligent in selecting his assistants, and damage results from the negligence or misconduct of such assistant, this damage can be attributed to the negligence in selecting the assistant, and the selecting postmaster or other official can be held responsible accordingly.

Again, when the duty of superintending clerks or assistants as to certain acts or lines of business is placed upon the postmaster or other official, here, too, he secures the exemption only by properly

10 Fitzgerald v. Burrill, 106 Mass. 446.

111 Ld. Raym. (Eng.) 646, 12 Mod. 472, 1 Salk. 17.

12 Hutchins v. Brackett, 2 Fost. (22 N. H.) 252, 53 Am. Dec. 248; Whitfield v. Le Despencer, 2 Cowp. 754; Dunlop v. Munroe, 7 Cranch, 242, 3 L. Ed. 329; Schroyer v. Lynch, 8 Watts (Pa.) 453; Bishop v. Williamson, 11 Me. 495; Wilson v. Peverly, 2 N. H. 548; Wiggins v. Hathaway, 6 Barb. (N. Y.) 632; Keenan v. Southworth, 110 Mass. 474, 14 Am. Rep. 613; Bolan v. Williamson, 1 Brev. (S. C.) 181; Id., 2 Bay (S. C.) 551.

18 See cases cited in note 12.