(after stating the facts as above). [1] If it be conceded, as the authorities hold, that defendant 'is not, in respect to carrying the mail, a common carrier, and therefore not an insurer of its safe carriage and delivery, yet it is alleged and, prohac vice, admitted, that, as authorized by its charter, and by congressional legislation,' it entered into a contract with plaintiff for a valuable consideration to carry the mail — that is, the railway post' office car, the equipment, and the mail matter therein — between the points designated in the complaint. This contract certainly imposed some degree of care — at the; least ordinary care — to carry it safely. It is alleged that it so negligently and carelessly managed and operated its train, engine, etc., and that the track was in such defective condition, that two of its engines collided, causing the burning and destruction of plaintiff’s property — its mail equipment committed to the care of defendant pursuant to and for the purposes set out in the contract. Unless, as contended by defendant, it is only liable for its corporate act or omission and not for the negligent manner in which its agents and employés discharged their duties, it would seem clear that, for the destruction of the plaintiff’s property — the equipment, etc. — defendant is .liable for a negligent breach of contractual duty. '
[2]' The general terms “negligently” and “carelessly” are sufficiently comprehensive to cover any breach of duty imposed by the contract — it is not necessary, or usual, to make the allegation more specific in regard to the degree of care imposed by the relation existing between the parties- — this being, upon the evidence, a question of law. But the defendant insists that, as the complaint sets out the negligent acts, or omissions, of defendant’s agents and servants resulting in-the destruction qf the property, the court must see, as matter of law, that such acts and omissions are not imputable to the corporation-, but' show a failure on the part of employés to discharge *783assignable duties, and that for these the corporation, in the absence of any allegation of negligence in the selection of its agents and employés, is not liable. The question presented is interesting and not free from difficulty. The authorities cited by the learned counsel (Bank v. Minneapolis, St. P., etc., R. R. Co. [C. C.] 113 Fed. 414, and Bankers’ Mut. Cas. Co. v. Minn., St. P. & S. S. M. Ry. Co., 117 Fed. 434, 54 C. C. A. 608, 65 L. R. A. 397) were suits brought by the owners of the mail lost by the alleged negligence or misconduct of subordinate employes of the corporations. The point decided in both cases and fully sustained by the decisions cited is that the action cannot be maintained for the reasons and upon the principles • set out. The decisions went upon the principle that there was no contractual relation between the plaintiff and the railroad company, which in carrying the mail was acting as a public agency, employed by the government in discharging a governmental function. Banking Co. v. Rampley, 76 Ala. 357, 52 Am. Rep. 334. In Bank v. Minn., St. P., etc., R. R. Co., supra, Rochren, District Judge, says:
“A railway company carrying the mail does not assume any of the duties of a common carrier. No one but the government can require or receive such service, and the duties and responsibilities of such railway carrier of mails are measured by the terms of the contract, and by the provisions of the postal laws and regulations.”
No case has been cited in which the government has sued for loss of mail occasioned by the negligence of the carrier or its employés based upon an alleged breach of the contract of carriage. While it may be that, as between the citizen, whose mail is carried by the railroad, as a public governmental agency and the carrier, no privity of contract exists, it does not necessarily follow that, when sued by the government for breach of a contractual duty, the company is not liable for the wrongful or negligent acts or omissions of its agents and employes, as in other cases of a contract for carriage. It is not easy to draw" the distinction between those duties which can only be discharged by the corporation, acting in its corporate capacity, and those which it necessarily discharges through the medium of agents, servants, and employés acting within the scope of their employment.
[3] The corporation undertook, by its contract, to ■ safely Carry; that is, use ordinary care as a bailee for hire in carrying the mail equipment, etc. This it could do only by maintaining its tracks in a reasonably safe condition, and by operating its trains by means of engineers, conductors, -and other employés intrusted with the discharge of such duty. Ordinarily it is conceded that it is liable for the negligence of these employés. It is not clear why, when the plaintiff enters into a contract with the corporation, to aid it in the performance of its duty to the public, the same principles governing the rights and duties of the parties, as in other similar contracts, do not apply. If the action was in tort, other principles might be invoked. The court cannot take judicial notice of the division of duties made by the company among its employés in the management and operation of its road and trains. The detnurrer to the first causé of action must be overruled.
*784[4] In addition to the causes of demurrer assigned to the first, it is insisted that, as to the second cause of action for the loss of the diamonds and other articles contained in the mail pouches, the plaintiff had no property or interest, that it was not liable to the owner, and that, in no aspect of the case, is defendant liable for their value. Assuming that the defendant would be liable to plaintiff if it had been the owner of the diamonds, it would seem that, to the extent that plaintiff had a special property as. bailee for carriage, it would recover at least nominal damages for breach of the contract of carriage. The Postmaster General is empowered to establish a uniform system of registration, and to provide rules under which the sender of first-class registered matter shall be indemnified for losses thereof in the-mails not to exceed a fixed amount. R. S. § 3926 (U. S. Comp. St. 1901, p. 2685); 5 Fed. Stat. Anno. 871, amended by 32 Stat. R. 117 (U. S. Comp. St. Supp. 1909, p. 1008). The articles alleged to have been lost were fourth-class matter, and for these it seems no indemnity is provided. 20 Stat. R. 358, 5 Fed. Stat. Ann. 828 (U. S. Comp. St. 1901, p. 2646). It would seem, therefore, that the plaintiff is not liable to the owner of the diamonds and other articles lost by the burning of the mail car.
The only case in point which has been cited is The Winklered, R. R. Prob. Div. (1902) 42. In that case it is held that, when a vessel carrying the mail was sunk by a collision with another vessel, the Postmaster General could recover of the defaulting vessel the full value of the mail thus lost, upon the principle that as bailee of- the mail he was entitled, as against a wrongdoer, to recover dor the benefit of the owner the full value of the property destroyed. See, also, National Surety Co. v. United States, 129 Fed. 70, 63 C. C. A. 512. There the plaintiff in error had become surety on the bond of a mail carrier who converted to his own use a letter committed to his care for carriage containing $11. The government sued for this amount.The owner of the letter had made no demand upon the government for the money. The plaintiff in error-contended:
“That the United States is entitled to no recovery in any event because it has neither incurred any liability, nor suffered any loss, by the theft of the money by the principal in the bond.”
To this contention Sanborn, Circuit Judge (for the Circuit Court of Appeals, Eighth Circuit), said:
“The right' of the nation, however, to a recovery in this action, is not necessarily limited by the acts or omissions of the owner of the stolen money since the theft. It depends upon the facts and circumstances when the money was stolen. When this was done the money was in the custody- — the possession — of the United States, under its contract with those who had intrusted the letters to its care to safely carry and deliver them to their addresses for the valuable consideration which it had received by virtue of the stamps upon the letters which had been purchased from it. The contract between the United States and the owners of the letters was a bailment of the class known as ‘locatio operis mereium vehendarum.’ It was a carrier — a bailee of the letters for hiré of labor or service. From this carrier, or bailee, Eich took and converted the letters to his own use. But a bailee may maintain an -action of trespass, of trover, or of conversion against a wrongdoer for the disturbance of his possession of the property. The United States, there*785fore, was not without sufficient interest in the subject-matter to enable it to recover of Eieh, the letter carrier, the entire value of the property he took, or Its damages for the conversion of the money” — citing The Beaconsiield, 158 U. 8. 303, 15 Sup. Ct. 860, 39 L. Ed. 993, and other cases.
The learned counsel for defendant insist that these decisions are not conclusive of the merits of this case. This must be conceded; hut they are in point upon the right of the plaintiff to sue for the wrongful conversion or destruction of the property committed to hs care for carriage through the mail. Whether the defendant is liable for the loss of a registered package containing diamonds and jewels without notice of such contents is an interesting question. The question whether any other or different liability accrues by reason of defendant’s agents and employés converting the diamonds after the destruction of the car than for negligently permitting other persons to do so is not free from difficulty. 1 am of the opinion that the action can be maintained for the value of the equipment destroyed by the negligence of defendant’s agents and servants. The other causes of action are much more doubtful; but upon a careful consideration ■of the entire case the demurrer will be overruled to the end that the defendant may answer, and upon a full development of the case present its defenses. There is no misjoinder of parties or causes of action. If, at any time during the progress of the cause, it should appear to be necessary o,r proper, the owners of the diamonds may be made parties plaintiff.
Demurx-er overruled, and defendant allowed 60 days within which to file answer.