UNITED STATES FIDELITY & GUARANTY CO. v. UNITED STATES, 246 F. 433

HUNT, Circuit Judge (after stating the facts as above). [1,2] Counsel for the Eidelity Company have argued at length that the doctrine of subrogation cannot inure to the benefit of the assuring company, that, inasmuch as the bank has been paid by the assuring company the full amount of the theft, as owner it has no interest in the litigation, and that the moral duty on the part of the government, as bailee, to procure a return of the money or equivalent to the owner, bailor, having been fulfilled, it is erroneous to permit recovery against the surety upon any assumption that it stands in the same position as the wrongdoer.

But more than a moral duty attached to' the United States in the premises.

Section 4058, Revised Statutes (Comp. St-1916, § 7607), provides: “Whenever the Postmaster General Is satisfied that money or property stolen from the mail, or the proceeds thereof, has, been received at the. Apartment, he may, upon satisfactory evidence as to the owner, deliver the same to him.” The Postal Regulations, sections 143 and 144, authorize suit against an employé and his sureties and direct that if recovery is had the amount recovered shall be paid to the United States, “and to the losers of the mail, as their respective interests shall appear.” Gibson v. U. S., 208 Fed. 534, 125 C. C. A. 536.

It is well settled that the United States is a bailee for hire of registered packages and their contents and can maintain action against one who steals such mail and can recover full value of the property taken. National Surety Co. v. U. S., 129 Fed. 70, 63 C. C. A. 512; U. S. Fidelity & Guaranty Co. v. United States, 229 Fed. 397, 143 C. C. A. 517. Nor need such an action depend always upon the liability of the bailee to the bailor. Bode v. Lee, 102 Cal. 583, 36 Pac. 936. As said by the Court of Appeals in U. S. v. Atlantic Coast Line R. Co., 215 Fed. 56, 131 C. C. A. 364, L. R.

A. 1915A, 374: “The government could also recover the value of the mail lost for the benefit of the owners of the mail, provided the contract did not negative the idea of the liability extending that far.” Not only does the undertaking here sued upon fail in such negation, but by the express language used therein, the clerk and his sureties gave bond that he would account for and pay over all property that would come into his hands as a postal clerk. United States v. American Surety Co., 163 Fed. 228, 89 C. C. A. 658; United States v. American Surety Co. (C. C.) 155 Fed. 941.

As we look at it, much of the argument with respect to the question of subrogation is not very close to the case, for the United States expressly avers in its complaint that, the action is brought in its own behalf, and for the use and benefit of the subrogee, and that it may maintain such an action is, in the light of the decisions, beyond successful dispute. Searight v. Stokes, 3 How. 151, 11 L. Ed. 537; U. S. v. Griswold, 8 Ariz. 453, 76 Pac. 596; Id., 9 Ariz. 304, 80 Pac. 317; and cases above cited.

When recovery has been had by the United States, then it is that disposition of the money will be made to’ those entitled thereto*, in this instance the assuring company, which paid the loss and alleged to be the subrogee of the bank. Nothing in U. S. v. Bebee, 127 U. S. 338, 8 Sup. Ct. 1083, 32 L. Ed. 121, cited by the defendant, is inconsistent with what we have said, and U. S. v. Atlantic Coast Line (D. C.) 206 Fed. 203, so far as it may hold to a contrary view, was questioned on review, by the Circuit Court of Appeals in 215 Fed. 56, 131 C. C. A. 364, L. R. A. 1915A, 374.

It is said that the judgment is erroneous in so far as it awards recovery in. excess of $50 and interest. We think this argument, which rests upon the assumption that np legal obligation devolved upon the United States to pay or recover for the benefit of any one the amount of money which was stolen, is answered by reference to the provisions of the obligation that the clerk shall faithfully pay over to the proper official or person all moneys which shall come into his hands as clerk.

The authorities heretofore cited hold that upon a bond so written the United States, as obligee, may recover to the full amount of the loss up to the penalty of the bond. Defendant assigns as error the ruling of the court that there was proof of loss in excess of $50. The point is not well taken because there was evidence of the shipment of $30,000 money by mail by the bank at Dos Angeles, of the recovery of $15,000, of the failure to recover the balance, and there was a stipulation that Altorre stole packages shipped by the bank and containing the $30,000.

It is said the judgment was too great, even if recovery is proper, and that, if the assuring company and the defendant are bound by the same obligation, neither should be required to bear more than its pro1 rata portion of that burden. The bond, however, makes no provision for apportionment of loss, and there is no such identity between the assurance company and the defendant company as to risks, or subject-matter, as warrants right to contribution. The other points made by defendant are of minor importance, and are not well founded. The judgment is affirmed.