A-11383, OCTOBER 12, 1925, 5 COMP. GEN. 253

A-11383: Oct 12, 1925

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GRATUITOUS BAILMENTS - DAMAGES TO PRIVATE PROPERTY WHERE A FARM TRUCK GRATUITOUSLY LOANED TO THE INDIAN SERVICE WAS DESTROYED BY FIRE OF UNKNOWN ORIGIN WHILE IN ITS CUSTODY. THERE IS NO LIABILITY ON THE GOVERNMENT FOR DAMAGE TO OR LOSS OF THE PROPERTY IN THE ABSENCE OF A SHOWING OF NEGLIGENCE. 1925: I HAVE YOUR LETTER OF SEPTEMBER 29. THE BARNS AT THE SHAWNEE AGENCY WERE DESTROYED BY FIRE OF UNKNOWN ORIGIN. THIS TRUCK WAS DESTROYED IN THE FIRE. THE ORIGINAL COST OF THE TRUCK WAS $70. AS IT WAS NOT NEW THE OWNER ESTIMATES ITS VALUE AT THE TIME OF DESTRUCTION AT $50. THE TRUCK WAS BORROWED FOR USE IN PUTTING UP ENSILAGE AND SHOULD BE PAID FOR. IT IS THEREFORE REQUESTED THAT YOU RENDER AN ADVANCE DECISION AS TO THE LEGALITY OF THE VOUCHER.

A-11383, OCTOBER 12, 1925, 5 COMP. GEN. 253

GRATUITOUS BAILMENTS - DAMAGES TO PRIVATE PROPERTY WHERE A FARM TRUCK GRATUITOUSLY LOANED TO THE INDIAN SERVICE WAS DESTROYED BY FIRE OF UNKNOWN ORIGIN WHILE IN ITS CUSTODY, THERE IS NO LIABILITY ON THE GOVERNMENT FOR DAMAGE TO OR LOSS OF THE PROPERTY IN THE ABSENCE OF A SHOWING OF NEGLIGENCE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, OCTOBER 12, 1925:

I HAVE YOUR LETTER OF SEPTEMBER 29, 1925, AS FOLLOWS:

ON JULY 13, 1925, THE BARNS AT THE SHAWNEE AGENCY WERE DESTROYED BY FIRE OF UNKNOWN ORIGIN. THE SUPERINTENDENT OF THE AGENCY HAD BORROWED AN IRON WHEEL FARM TRUCK FROM ONE W. M. KNABE, OF SHAWNEE, OKLAHOMA. THIS TRUCK WAS DESTROYED IN THE FIRE. THE ORIGINAL COST OF THE TRUCK WAS $70, BUT AS IT WAS NOT NEW THE OWNER ESTIMATES ITS VALUE AT THE TIME OF DESTRUCTION AT $50, AND PRESENTS A CLAIM IN THAT AMOUNT. THE SUPERINTENDENT RECOMMENDS THE PAYMENT OF THIS CLAIM, AS MR. KNABE HAD LET HIM USE THE TRUCK WITHOUT CHARGE AS A MATTER OF ACCOMMODATION. THE TRUCK WAS BORROWED FOR USE IN PUTTING UP ENSILAGE AND SHOULD BE PAID FOR.

IT IS THEREFORE REQUESTED THAT YOU RENDER AN ADVANCE DECISION AS TO THE LEGALITY OF THE VOUCHER, AND RETURN IT TO THIS DEPARTMENT FOR PAYMENT BY THE SUPERINTENDENT, IF APPROVED.

IT IS UNDERSTOOD THAT THE APPROPRIATION SOUGHT TO BE USED IN THIS INSTANCE IS THAT MADE IN THE ACT OF MARCH 3, 1925, 43 STAT. 1158, AS FOLLOWS:

FOR THE RELIEF AND CARE OF DESTITUTE INDIANS NOT OTHERWISE PROVIDED FOR, AND FOR THE PREVENTION AND TREATMENT OF TUBERCULOSIS, TRACHOMA, SMALLPOX, AND OTHER CONTAGIOUS AND INFECTIOUS DISEASES, INCLUDING TRANSPORTATION OF PATIENTS TO AND FROM HOSPITALS AND SANATORIA, $700,000: PROVIDED, THAT THIS APPROPRIATION MAY BE USED ALSO FOR GENERAL MEDICAL AND SURGICAL TREATMENT OF INDIANS, INCLUDING THE MAINTENANCE AND OPERATION OF GENERAL HOSPITALS, WHERE NO OTHER FUNDS ARE APPLICABLE OR AVAILABLE FOR THAT PURPOSE: PROVIDED FURTHER, THAT OUT OF THE APPROPRIATION HEREIN AUTHORIZED THERE SHALL BE AVAILABLE FOR THE MAINTENANCE OF THE SANATORIA AND HOSPITALS HEREINAFTER NAMED, AND FOR INCIDENTAL AND ALL OTHER EXPENSES FOR THEIR PROPER CONDUCT AND MANAGEMENT, INCLUDING PAY OF EMPLOYEES, REPAIRS, EQUIPMENT, AND IMPROVEMENTS, NOT TO EXCEED THE FOLLOWING AMOUNTS: * * * SHAWNEE SANATORIUM, $40,000: * * *.

SAID APPROPRIATION DOES NOT PROVIDE IN SPECIFIC TERMS FOR THE PAYMENT OF DAMAGES OR COST OF REPAIRS IN SUCH A CASE AS HERE INVOLVED. THEREFORE, IN ACCORDANCE WITH THE ESTABLISHED RULE RELATIVE TO PRIVATE PROPERTY DAMAGED OR DESTROYED WHILE IN THE POSSESSION OR CUSTODY OF THE GOVERNMENT WHERE NO NEGLIGENCE ON THE PART OF THE GOVERNMENT IS SHOWN, IT MUST BE HELD THAT THE PROPOSED PAYMENT IN THIS CASE IS NOT AUTHORIZED. 3 COMP. DEC. 180; ID. 457; 11 ID. 767; 18 ID. 252; 23 ID. 437. ACCORDINGLY YOUR QUESTION IS ANSWERED IN THE NEGATIVE.

CLAIMS BASED SOLELY ON MORAL OBLIGATION CAN NOT BE ALLOWED AND PAID IN THE ABSENCE OF SPECIFIC APPROPRIATION THEREFOR. SEE 9 COMP. DEC. 663. NOTWITHSTANDING THE WORTHY PURPOSE OF THE CLAIMANT IN LOANING THIS TRUCK TO THE GOVERNMENT OFFICIALS, AND THE EQUITIES INVOLVED, THERE IS NO AUTHORITY OF LAW FOR THE ALLOWANCE OF THE CLAIM.