A-97400, OCTOBER 10, 1938, 18 COMP. GEN. 323

A-97400: Oct 10, 1938

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POST OFFICE DEPARTMENT - INSURED MAILS - IMPROPER DELIVERIES - INDEMNITY PAYMENTS AND CARRIER'S LIABILITY WHERE AN INSURED PARCEL ADDRESSED TO THE ADDRESSEE AT A FRATERNITY HOUSE ADDRESS WAS DELIVERED BY THE REGULAR CARRIER TO A MEMBER OF THE FRATERNITY WHO WAS NOT AUTHORIZED IN WRITING BY THE FRATERNITY TO RECEIVE INSURED MAIL ADDRESSED TO ITS MEMBERS. PAYMENT OF INDEMNITY BECAUSE OF THE LOSS OF THE PARCEL IS AUTHORIZED. AS FOLLOWS: THE EVIDENCE SHOWS THAT THE PARCEL WAS DELIVERED TO HAROLD M. WHO WAS A MEMBER OF THE FRATERNITY HOUSE LOCATED AT THE ADDRESS BORNE BY THE PARCEL. ALTHOUGH THE ADDRESSEE WAS A MEMBER OF THE FRATERNITY. THAT THE ADDRESSEE HAD NOT AUTHORIZED THE POSTMASTER OR CARRIER TO DELIVER HIS MAIL TO THE PERSON TO WHOM THE PARCEL WAS DELIVERED.

A-97400, OCTOBER 10, 1938, 18 COMP. GEN. 323

POST OFFICE DEPARTMENT - INSURED MAILS - IMPROPER DELIVERIES - INDEMNITY PAYMENTS AND CARRIER'S LIABILITY WHERE AN INSURED PARCEL ADDRESSED TO THE ADDRESSEE AT A FRATERNITY HOUSE ADDRESS WAS DELIVERED BY THE REGULAR CARRIER TO A MEMBER OF THE FRATERNITY WHO WAS NOT AUTHORIZED IN WRITING BY THE FRATERNITY TO RECEIVE INSURED MAIL ADDRESSED TO ITS MEMBERS, OR OTHERWISE WITHIN THE PERMISSIBLE DELIVERY PROVISIONS OF THE APPLICABLE SECTIONS OF THE POSTAL LAWS AND REGULATIONS, 1932, PAYMENT OF INDEMNITY BECAUSE OF THE LOSS OF THE PARCEL IS AUTHORIZED, BUT THERE WOULD APPEAR TO BE FOR ADMINISTRATIVE CONSIDERATION THE MATTER OF COLLECTING THE AMOUNT OF THE INDEMNITY FROM THE CARRIER RESPONSIBLE FOR THE LOSS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, OCTOBER 10, 1938:

YOUR LETTER OF AUGUST 13, 1938, REQUESTS REVIEW OF THE ACTION OF THE POST OFFICE DEPARTMENT DIVISION OF THIS OFFICE IN DISALLOWING THE CLAIM OF ST. MARYS SEWER PIPE COMPANY FOR $25 AS REIMBURSEMENT FOR LOSS OF AN INSURED PARCEL NO. 1536 MAILED NOVEMBER 19, 1937, FROM ST. MARYS, PENNSYLVANIA, TO J. HYLAN LEWIS, 228 SOUTH 39TH STREET, PHILADELPHIA,PENNSYLVANIA.

YOU STATE, IN PART, AS FOLLOWS:

THE EVIDENCE SHOWS THAT THE PARCEL WAS DELIVERED TO HAROLD M. SUMMERS, WHO WAS A MEMBER OF THE FRATERNITY HOUSE LOCATED AT THE ADDRESS BORNE BY THE PARCEL; THAT, ALTHOUGH THE ADDRESSEE WAS A MEMBER OF THE FRATERNITY, HE DID NOT RESIDE AT THE FRATERNITY HOUSE BUT DID RESIDE AT THE VETERINARY HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA, AND THAT THE ADDRESSEE HAD NOT AUTHORIZED THE POSTMASTER OR CARRIER TO DELIVER HIS MAIL TO THE PERSON TO WHOM THE PARCEL WAS DELIVERED.

THIS CLAIM WAS APPROVED BY THIS OFFICE IN FAVOR OF THE SENDER IN THE SUM OF $25, THE LIMIT FIXED BY LAW FOR THE FEE OF 10 CENTS PAID ON THE PARCEL AT THE TIME OF MAILING. THE ITEM IS ENTERED ON THE JOURNAL OF JUNE 17, 1938, BUT WAS ELIMINATED. * * *

SECTION 1323, PARAGRAPH 1 (D), OF THE POSTAL LAWS AND REGULATIONS, WHICH ALSO GOVERNS THE DELIVERY OF INSURED AND C.O.D. MAIL, PROVIDES THAT THE DELIVERY OF REGISTERED MAIL MAY BE MADE TO ANY RESPONSIBLE PERSON TO WHOM THE ORDINARY MAIL OF THE ADDRESSEE IS CUSTOMARILY DELIVERED. ADDRESSING THE PARCEL IN QUESTION, THE SENDER DID NOT DO ANYTHING WHICH JUSTIFIED THE POSTMASTER IN DELIVERING IT TO ANY PERSON OTHER THAN THE ADDRESSEE OR TO A RESPONSIBLE PERSON TO WHOM HIS ORDINARY MAIL HAD BEEN CUSTOMARILY DELIVERED OR ANYTHING WHICH EXCUSED THE POSTMASTER FROM PERFORMANCE OF DUTY IN REQUIRING COMPLETE IDENTIFICATION. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE DECISION OF THE COMPTROLLER OF THE TREASURY DATED APRIL 16, 1910, INITIALS CCM 7 D, AND TO DECISION A- 70461 OF THE COMPTROLLER GENERAL DATED JUNE 30, 1936.

THE SECTION REFERRED TO DOES NOT PROVIDE THAT THE MAIL MAY BE DELIVERED TO ANY RESPONSIBLE PERSON AT THE ADDRESS SHOWN THEREON, AND, IN ITS INSTRUCTIONS TO POSTMASTERS, THE DEPARTMENT HAS CONSISTENTLY HELD THAT THE WORDS USED SHALL NOT BE SO INTERPRETED. IN THE DELIVERY OF REGISTERED, INSURED, OR C.O.D. MAIL THE ADDRESS IS NOT THE CONTROLLING FACTOR BUT IS OBSERVED MERELY FOR THE PURPOSES OF CERTAIN IDENTIFICATION AND THE EXPEDITION OF DELIVERY. THE NAME ITSELF MUST CONTROL. IT IS THE INDEX OF THE SENDERS INTENTION.

UPON RECONSIDERATION OF THE FACTS, I THINK YOU WILL READILY AGREE THAT THE PRESENT CASE DIFFERS ESSENTIALLY FROM THE CASE CITED IN YOUR STATEMENT OF DIFFERENCES DATED JUNE 21, 1938, IN THAT THE PARCEL REFERRED TO IN DECISION A-70441 OF THE ACTING COMPTROLLER GENERAL WAS DELIVERED TO THE PERSON AUTHORIZED TO RECEIVE MAIL ADDRESSED IN CARE OF THE Y.M.C.A. HOTEL, WHEREAS THE PARCEL IN QUESTION WAS NEITHER ADDRESSED IN CARE OF THE FRATERNITY HOUSE NOR DELIVERED TO A PERSON AUTHORIZED BY THE MANAGEMENT OF THE FRATERNITY HOUSE TO RECEIVE MAIL FOR THE INSTITUTION. IT WAS MERELY DELIVERED TO ONE OF THE MEMBERS OF THE INSTITUTION.

WITH FURTHER REFERENCE TO THE FACTS INVOLVED, THE INVESTIGATION MADE OF THE CASE BY A POST OFFICE INSPECTOR AND THE REPORT MADE THEREON MARCH 31, 1938, ESTABLISH THAT THE INSURED PARCEL, CONTAINING ONE HAMILTON WATCH VALUED AT $50 AND ONE CHAIN VALUED AT $5, WAS MAILED BY J. A. WILLIAMS, VICE PRESIDENT AND GENERAL MANAGER OF THE ST. MARYS SEWER PIPE COMPANY, TO J. HYLAN LEWIS, HIS NEPHEW WHOM HE WAS ASSISTING FINANCIALLY, AND WHOM HE BELIEVED WAS LIVING AT THE FRATERNITY HOUSE; THAT LEWIS HAD NOT NOTIFIED HIS UNCLE OF HIS CHANGE IN RESIDENCE PLANS FROM THE FRATERNITY HOUSE TO THE VETERINARY HOSPITAL, SINCE HE DID NOT EXPECT TO RECEIVE ANY MAIL FROM HIM; THAT SAID INSURED PACKAGE, ADDRESSED TO LEWIS AT THE FRATERNITY HOUSE ADDRESS, WAS DELIVERED BY THE REGULAR CARRIER TO HAROLD M. SUMMERS, A MEMBER OF THE FRATERNITY. THE CARRIER STATES WITH RESPECT TO SAID DELIVERY:

* * * LEWIS NEVER AUTHORIZED ME TO DELIVER HIS MAIL TO SUMMERS, OR ANYONE ELSE. I HAD NO WRITTEN AUTHORIZATION TO DELIVER MAIL FOR MEMBERS OF THIS FRATERNITY TO ANY PARTICULAR PERSON, BUT I HAD A VERBAL AGREEMENT WITH CERTAIN MEMBERS TO DELIVER THEIR MAIL TO ANY MEMBER OF THE FRATERNITY. THE TIME I MADE THIS DELIVERY, I FELT AS THOUGH I WAS MAKING A PROPER DELIVERY, AS I HAVE BEEN MAKING SIMILAR DELIVERIES FOR THE PAST FOURTEEN YEARS. I UNDERSTAND THAT AFTER I DELIVERED THIS PARCEL TO SUMMERS, IT LAY ON A TABLE WITH OTHER MAIL FOR TWO OR THREE DAYS AT THE FRATERNITY HOUSE.

THE INSPECTOR REPORTS WITH RESPECT TO AN INTERVIEW HAD WITH HAROLD M. SUMMERS MARCH 12, 1938, THAT---

* * * THE LETTER CARRIER CAME TO THE FRATERNITY HOUSE AND TOLD HIM THAT HE HAD A PARCEL FOR J. HYLAN LEWIS; THAT HE TOLD THE CARRIER THAT LEWIS WAS NOT AT THE HOUSE, BUT THAT HE WAS A MEMBER OF THE FRATERNITY; THAT HE ALSO TOLD THE CARRIER THAT HE WAS A MEMBER OF THE FRATERNITY; THAT THE CARRIER THEN GAVE HIM THE PARCEL ADDRESSED TO LEWIS AND THAT HE, SUMMERS, SIGNED HIS OWN NAME ON THE RECEIPT; THAT HE THEN PLACED THE PARCEL ON A TABLE ON A STAIRWAY LEADING TO THE SECOND FLOOR OF THE HOUSE; THAT HE SAW THE PARCEL THERE FOR SEVERAL DAYS AFTER HE HAD SIGNED FOR IT; THAT SOMETIME AFTER RETURNING FROM THE THANKSGIVING VACATION HE LEARNED THAT LEWIS HAD NOT RECEIVED THE PARCEL; THAT HE DOES NOT KNOW WHAT BECAME OF THE PARCEL AND HAS NO IDEA WHO MAY HAVE TAKEN IT FROM THE TABLE; * * * LEWIS HAD NEVER AUTHORIZED HIM TO SIGN FOR HIS MAIL, AND SO FAR AS HE KNOWS THE FRATERNITY NEVER NOTIFIED THE POSTMASTER THAT HE HAD BEEN DESIGNATED TO ACT AS THE AUTHORIZED AGENT TO RECEIVE MAIL ADDRESSED TO MEMBERS OF THE FRATERNITY. * * *

SAID REPORT FURTHER STATES:

WHILE J. HYLAN LEWIS, ADDRESSEE OF THE PARCEL IN QUESTION, IS A MEMBER OF THE FRATERNITY KNOWN AS OMEGA TAU SIGMA, 228 S. 39TH STREET, THIS CITY, HE DOES NOT RESIDE AT THIS ADDRESS. HE IS A STUDENT IN THE VETERINARY HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA AND RESIDES AT THE HOSPITAL. INVESTIGATION HAS DISCLOSED THAT HE WAS NOT IN PHILADELPHIA BETWEEN NOVEMBER 19 AND 27, 1937, DUE TO ILLNESS OF HIS FATHER WHO RESIDES AT CLEAR FIELD, PA., AND TO THE THANKSGIVING VACATION PERIOD. * * *

HAROLD M. SUMMERS, WHO SIGNED FOR THE PARCEL APPEARS TO BE AN HONEST BOY AND IT IS NOT BELIEVED THAT HE PURLOINED THE PARCEL AND ITS CONTENTS. IS MY OPINION, HOWEVER, THAT HE CANNOT BE CONSIDERED A "RESPONSIBLE PERSON" WITHIN THE MEANING OF THE REGULATIONS WHICH PROVIDE THAT INSURED MAIL MAY BE DELIVERED TO THE ADDRESSEE OR OTHER RESPONSIBLE PERSON WHO CUSTOMARILY RECEIVES THE ADDRESSEE'S ORDINARY MAIL. SUMMERS DID NOT CUSTOMARILY RECEIVE THE ADDRESSEE'S ORDINARY MAIL IN THE MANNER CONTEMPLATED BY THE REGULATIONS. MOST OF THE ADDRESSEE'S MAIL WAS ADDRESSED TO HIM AT THE VETERINARY HOSPITAL. THE CARRIER DID NOT KNOW THE ADDRESSEE AND DID NOT KNOW THAT HE WAS A MEMBER OF THE FRATERNITY UNTIL HE WAS TOLD BY SUMMERS.

IT IS MY OPINION THAT WRONG DELIVERY OCCURRED IN THIS INSTANCE. SECTION 1385, PARAGRAPH 10, OF THE POSTAL LAWS AND REGULATIONS PROVIDES THAT INSURED AND COLLECT-ON-DELIVERY MAIL, THE DELIVERY OF WHICH HAS NOT BEEN RESTRICTED BY THE SENDER OR THE ADDRESSEE, ADDRESSED TO A GUEST AT A HOTEL, APARTMENT HOUSE, OR THE LIKE, MAY BE DELIVERED WITHOUT WRITTEN ORDER FROM THE ADDRESSEE TO THE PROPRIETOR, MANAGER, OR A REPRESENTATIVE AUTHORIZED IN WRITING BY THE HOTEL OR HOUSE TO RECEIVE THE MAIL, EVEN THOUGH NOT ADDRESSED IN HIS CARE OR IN CARE OF THE HOTEL OR HOUSE. THE PERSON WHO RECEIVED THE MAIL REFERRED TO IN THIS CASE WAS NOT AUTHORIZED IN WRITING BY ANYONE TO RECEIVE SUCH MAIL.

PARAGRAPH 10, SECTION 1385, POSTAL LAWS AND REGULATIONS, 1932, PROVIDES:

DELIVERY OF INSURED AND COLLECT-ON-DELIVERY MAIL SHALL BE MADE IN ACCORDANCE WITH THE REGULATIONS GOVERNING THE DELIVERY OF REGISTERED MAIL (SEE SECS. 1321 TO 1326 AND SEC. 1360), EXCEPT THAT UNDER SUCH INSTRUCTIONS AS MAY BE PROMULGATED BY THE THIRD ASSISTANT POSTMASTER GENERAL INSURED AND COLLECT-ON-DELIVERY MAIL, THE DELIVERY OF WHICH HAS NOT BEEN RESTRICTED BY THE SENDER OR ADDRESSEE, ADDRESSED TO A GUEST AT A HOTEL, OCCUPANT OF AN APARTMENT HOUSE, OR THE LIKE, MAY BE DELIVERED WITHOUT A WRITTEN ORDER FROM THE SENDER OR ADDRESSEE TO THE PROPRIETOR, OR MANAGER OR A REPRESENTATIVE AUTHORIZED IN WRITING BY THE HOTEL OR HOUSE TO RECEIVE THE MAIL, EVEN THOUGH NOT ADDRESSED IN HIS CARE OR IN CARE OF THE HOTEL OR HOUSE.

SECTION 1323 PROVIDES:

REGISTERED MAIL THE DELIVERY OF WHICH HAS NOT BEEN RESTRICTED BY THE SENDER OR ADDRESSEE MAY BE DELIVERED---

(A) TO THE ADDRESSEE.

(B) TO A PERSON AUTHORIZED BY THE ADDRESSEE IN WRITING TO RECEIVE IT.

(C) TO SUCH PERSON OTHER THAN THE ADDRESSEE AS THE SENDER, AFTER MAILING, DIRECTS IN A WRITTEN ORDER VERIFIED BY THE MAILING POSTMASTER. * * *

(D) TO ANY RESPONSIBLE PERSON (SEE SUBPARS. (E) AND (F) ( TO WHOM THE ADDRESSEE'S ORDINARY MAIL IS CUSTOMARILY DELIVERED, INCLUDING THE AUTHORIZED REPRESENTATIVE OF A CLUB, FRATERNITY HOUSE, OR SIMILAR INSTITUTION OF GOOD STANDING. * * *

(E) IN THE ABSENCE OF KNOWLEDGE TO THE CONTRARY, THE FOLLOWING SHOULD BE REGARDED AS RESPONSIBLE PERSONS WITHIN THE MEANING OF PARAGRAPH 1 (D) OF THIS SECTION: ADULT MEMBERS OF THE ADDRESSEE'S FAMILY; * * * THE PROPRIETOR OR MANAGER OF A PRIVATE LODGING HOUSE IN WHICH HE RESIDES. * *

3. UNLESS THE POSTMASTER OR CARRIER KNOWS THAT THE ADDRESSEE IS LOCATED AT THE ADDRESS BORNE BY A REGISTERED ARTICLE, THE CORRECT ADDRESS SHALL BE ASCERTAINED, IF PRACTICABLE, TO PERMIT PROPER DELIVERY OR FORWARDING TO A NEW ADDRESS.

13. NO EXCEPTION SHALL BE MADE TO THE RULES HEREIN PRESCRIBED GOVERNING THE DELIVERY OF REGISTERED MAIL BECAUSE OF RELATIONSHIP OF ANY NATURE BETWEEN THE ADDRESSEE AND ANY PERSON CLAIMING THE MAIL.

15.POSTMASTERS SHALL EXERCISE DISCRETION IN THE DELIVERY OF REGISTERED MAIL. IF THERE IS REASON TO BELIEVE THAT THE PERSON OR INSTITUTION TO WHOM DELIVERY OF REGISTERED MAIL MAY BE AUTHORIZED IS NOT SUCH A RESPONSIBLE PERSON OR INSTITUTION AS WOULD CARE FOR AND PROPERLY DISPOSE OF IT, DELIVERY SHOULD NOT BE MADE EXCEPT TO THE ADDRESSEE OR PERSON IN WHOSE CARE IT IS ADDRESSED, OR TO A REPRESENTATIVE OF THE ADDRESSEE OR PERSON IN WHOSE CARE IT IS ADDRESSED AUTHORIZED IN WRITING TO RECEIVE IT, OR IN COMPLIANCE WITH A WRITTEN ORDER FROM THE SENDER VERIFIED BY THE POSTMASTER AT THE OFFICE OF MAILING.

THE EVIDENCE OF RECORD ESTABLISHES THAT THE PARTY TO WHOM THE PACKAGE HERE INVOLVED WAS DELIVERED WAS NOT AT THE DATE OF SUCH DELIVERY AUTHORIZED IN WRITING BY THE FRATERNITY TO RECEIVE INSURED AND COLLECT-ON- DELIVERY MAIL ADDRESSED TO MEMBERS OF SAID FRATERNITY. ACCORDINGLY, THE DELIVERY AS MADE DOES NOT FALL WITHIN THE EXCEPTION CONTAINED IN PARAGRAPH 10, SECTION 1385, POSTAL LAWS AND REGULATIONS, 1932, SUPRA. IT IS, THEREFORE, NECESSARY TO DETERMINE WHETHER SAID DELIVERY WAS ACCOMPLISHED IN ACCORDANCE WITH SECTIONS 1321 TO 1326 AND SECTION 1360, WHICH GOVERN THE DELIVERY OF REGISTERED MAIL AND WHICH ARE MADE APPLICABLE TO INSURED AND COLLECT-ON-DELIVERY MAIL BY SAID PARAGRAPH 10 OF SECTION 1385 SUPRA.

OF THE CITED SECTIONS GOVERNING DELIVERY OF REGISTERED MAIL, SECTION 1323 (D), SUPRA, OUTLINES THE PERMISSIBLE CONDITIONS OF DELIVERY MOST NEARLY APPLICABLE TO A DELIVERY MADE UNDER THE FACTS HERE OBTAINING. THIS SECTION ADMITS OF DELIVERY TO ANY "RESPONSIBLE" PERSON "TO WHOM THE ADDRESSEE'S ORDINARY MAIL IS CUSTOMARILY DELIVERED.' HOWEVER, THE FACTS IN THE INSTANT CASE SHOW THAT THE ADDRESSEE'S ORDINARY MAIL WAS NOT RECEIVED BY THE PARTY TO WHOM DELIVERY WAS MADE. THIS CONCLUSION IS SUPPORTED BY THE FINDING OF FACT MADE BY THE POSTAL INSPECTOR THAT, "SUMMERS DID NOT CUSTOMARILY RECEIVE THE ADDRESSEE'S ORDINARY MAIL IN THE MANNER CONTEMPLATED BY THE REGULATIONS. MOST OF THE ADDRESSEE'S MAIL WAS ADDRESSED TO HIM AT THE VETERINARY HOSPITAL.' IT IS READILY APPARENT, THEREFORE, THAT THE DELIVERY AS MADE DID NOT CONSTITUTE A DELIVERY AS PERMITTED UNDER SAID SECTION 1323 (D). UNDER PARAGRAPH 13 OF SAID SECTION NO EXCEPTION AS RESULT OF "RELATIONSHIP OF ANY NATURE" WAS PERMITTED TO THE RULES THEREIN PRESCRIBED. FURTHERMORE, PARAGRAPH 15 OF SAID SECTION REQUIRES OF THE POSTMASTER THAT WHERE THERE EXISTS ANY ROOM FOR DOUBT THAT THE PERSON TO WHOM DELIVERY IS CONTEMPLATED IS NOT SUCH A RESPONSIBLE PERSON "AS WOULD CARE FOR AND PROPERLY DISPOSE OF IT," DELIVERY IS FORBIDDEN, EXCEPT TO THE ADDRESSEE, TO THE PERSON IN WHOSE CARE IT IS ADDRESSED, OR, TO A REPRESENTATIVE AUTHORIZED IN WRITING BY EITHER THE ADDRESSEE OR THE CARE, OR, PURSUANT TO A VERIFIED WRITTEN ORDER FROM THE SENDER. OBVIOUSLY, A DELIVERY OF THE INSURED PACKAGE TO A PERSON WHOM THE CARRIER HAD EVERY REASON TO KNOW WOULD FORTHWITH DEPOSIT IT ON A TABLE, READILY ACCESSIBLE TO ALL WHO ENTERED THE FRATERNITY HOUSE, WHERE IT WOULD REMAIN UNTIL SUCH TIME AS THE ADDRESSEE MIGHT HAPPEN ALONG TO FIND IT, WAS A CLEAR VIOLATION OF THE INSTRUCTIONS CONTAINED IN THE AFOREMENTIONED SECTION. ACCORDINGLY, SINCE THE EVIDENCE ESTABLISHES THAT THE DELIVERY WAS NOT MADE IN ACCORDANCE WITH THE REQUIREMENTS OF THE APPLICABLE REGULATIONS, YOU ARE ADVISED THAT INSTRUCTIONS HAVE BEEN ISSUED THIS DATE FOR PAYMENT OF THE IDEMNITY IN THE SUM OF $25 AS ADMINISTRATIVELY PROPOSED. THERE WOULD SEEM TO BE FOR ADMINISTRATIVE CONSIDERATION, HOWEVER, THE MATTER OF COLLECTING THE AMOUNT OF INDEMNITY FROM THE CARRIER RESPONSIBLE FOR THE LOSS, PURSUANT TO SECTION 816, POSTAL LAWS AND REGULATIONS, 1932.