A-14251, JUNE 15, 1926, 5 COMP. GEN. 984

A-14251: Jun 15, 1926

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WHILE SO BEING USED THE STOVE WAS DAMAGED BY EXPLOSION. THE EXPENSE OF REPAIRING THE STOVE IS NOT PROPERLY PAYABLE FROM PUBLIC FUNDS. NOTWITHSTANDING THE FACT THAT THE DAMAGE MAY OR MAY NOT HAVE BEEN CAUSED BY THE NEGLIGENCE OF EMPLOYEES OF THE IMMIGRATION SERVICE. THE LEASE AGREEMENT STIPULATED ALSO THAT AS PART OF THE RENTAL CONSIDERATION THE LESSOR IS TO FURNISH "BUILDING AND PREMISES. THIS OFFICE IS INFORMED THAT FOR ABOUT EIGHT MONTHS PRIOR TO JULY 1. IT ALSO APPEARS THAT IN THE BUILDING THERE WAS A STOVE WITH HOT WATER ATTACHMENT WHICH HAD NOT BEEN IN USE FOR SOME TIME. WHEN A FIRE WAS STARTED THEREIN. WHILE THE STOVE IN QUESTION IS NOT THE PROPERTY OF THE UNITED STATES GOVERNMENT.

A-14251, JUNE 15, 1926, 5 COMP. GEN. 984

GRATUITOUS BAILMENTS - DAMAGES TO PRIVATE PROPERTY WHERE FOR USE OF PREMISES LEASED TO THE IMMIGRATION SERVICE THE LESSOR GRATUITOUSLY LOANED A STOVE, AND WHILE SO BEING USED THE STOVE WAS DAMAGED BY EXPLOSION, THE EXPENSE OF REPAIRING THE STOVE IS NOT PROPERLY PAYABLE FROM PUBLIC FUNDS, IN THE ABSENCE OF AN APPROPRIATION SPECIFICALLY PROVIDING FOR PAYMENT OF DAMAGES OR COST OF REPAIRS IN SUCH A CASE, NOTWITHSTANDING THE FACT THAT THE DAMAGE MAY OR MAY NOT HAVE BEEN CAUSED BY THE NEGLIGENCE OF EMPLOYEES OF THE IMMIGRATION SERVICE.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 15, 1926:

ELMER BARNES REQUESTED, APRIL 2, 1926, REVIEW OF SETTLEMENT NO. 0107677, DATED JANUARY 14, 1926, DISALLOWING HIS CLAIM FOR $15.65 FOR PARTS AND LABOR FURNISHED IN REPAIRING A STOVE (JUNE 8 TO 19, 1925) USED BY THE UNITED STATES IMMIGRATION OFFICE AT CHATEAUGAY, N.Y., AS PER VOUCHER TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE BY THE ACTING SECRETARY OF LABOR.

THE FACTS APPEAR TO BE AS FOLLOWS:

BY FORMAL LEASE AGREEMENT ENTERED INTO AUGUST 6, 1925, THE COMMISSIONER OF IMMIGRATION LEASED FROM MARGARET K. FAYHEE FOR THE PERIOD JULY 1, 1925, TO JUNE 30, 1926, AT A RENTAL OF $15 PER MONTH, THE FOLLOWING DESCRIBED PREMISES:

ONE ROOM BACK OF THE FRONT ROOM AND CONNECTED BY ARCHWAY, DIMENSIONS BEING 8 FT. BY 15 FT., TO BE USED AS AN OFFICE BY THE U.S. IMMIGRATION SERVICE, SITUATED ON THE WEST SIDE OF RIVER STREET, IN THE VILLAGE OF CHATEAUGAY, N.Y., * * * SAID ROOM BEING IN A BUILDING NOW LEASED BY THE UNITED STATES CUSTOMS SERVICE. ALSO THE JOINT USE, WITH THE UNITED STATES CUSTOMS SERVICE, OF THE ROOM IN THE ELL PART OF SAID BUILDING AND THE ROOMS UPSTAIRS, INCLUDING THE BATHROOM, * * *. TO BE USED AS AN IMMIGRATION OFFICE AND CUSTOMS OFFICE (THE CUSTOMS DEPARTMENT PAYING A RENTAL EQUAL TO THAT PAID BY THE IMMIGRATION DEPARTMENT).

THE LEASE AGREEMENT STIPULATED ALSO THAT AS PART OF THE RENTAL CONSIDERATION THE LESSOR IS TO FURNISH "BUILDING AND PREMISES, TOGETHER WITH FREE WATER.'

THIS OFFICE IS INFORMED THAT FOR ABOUT EIGHT MONTHS PRIOR TO JULY 1,1925, THE IMMIGRATION SERVICE HAD OCCUPIED THE SAID PREMISES UNDER A VERBAL LEASE AT A RENTAL OF $10 PER MONTH, BUT OTHERWISE WITH TERMS AS SET FORTH IN THE WRITTEN LEASE AGREEMENT OF AUGUST 6, 1925.

IT ALSO APPEARS THAT IN THE BUILDING THERE WAS A STOVE WITH HOT WATER ATTACHMENT WHICH HAD NOT BEEN IN USE FOR SOME TIME. THE UNITED STATES COMMISSIONER OF IMMIGRATION, DISTRICT NO. 1, STATED UNDER DATE OF AUGUST 24, 1925:

IN ORDER TO SAVE OUR GOVERNMENT EXPENSE, MRS. FAYHEE OFFERED THE LOAN OF THIS STOVE. WHEN A FIRE WAS STARTED THEREIN, HOWEVER, AN EXPLOSION OCCURRED WHICH NECESSITATED THE EXPENSE REPRESENTED BY THE ENCLOSED VOUCHER. WHILE THE STOVE IN QUESTION IS NOT THE PROPERTY OF THE UNITED STATES GOVERNMENT, AT THE SAME TIME THESE REPAIRS ARE MADE NECESSARY BY REASON OF ITS USE * * *.

UNDER DATE OF NOVEMBER 3, 1925, THE COMMISSIONER REPORTED:

* * * I HAVE TO ADVISE THAT FROM THE REPORTS FURNISHED ME IT DOES NOT APPEAR THAT THE EXACT CAUSE OF THE EXPLOSION WAS KNOWN. IT IS PROBABLE, HOWEVER, THAT THERE MAY HAVE BEEN POOR CIRCULATION IN THE HOT-WATER FRONT, OR SOME PIPES CONNECTING WITH THE HOT-WATER TANK, AND WHEN A FIRE WAS STARTED IN THE STOVE, THE STEAM GENERATED CAUSED THE EXPLOSION.

HOWEVER, AUTHENTIC INFORMATION ON THIS POINT WOULD, APPARENTLY, BE IMPOSSIBLE TO OBTAIN, BUT IT IS BELIEVED THAT OUR SERVICE IS RESPONSIBLE FOR DAMAGE TO PROPERTY CAUSED BY THIS EXPLOSION, AS THE HOT-WATER FRONT WAS APPARENTLY IN GOOD CONDITION, SO FAR AS COULD BE DETERMINED, WHEN THE FIRE WAS STARTED.

BUT UNDER DATE OF MARCH 9, 1926, THE COMMISSIONER, WITH REFERENCE TO THE DISALLOWANCE, STATES IN PART:

* * * AFTER FURTHER CONSIDERING THE MATTER IT WOULD SEEM THAT THE OFFICER WHO STARTED THE FIRE IN THE STOVE SHOULD HAVE ASCERTAINED WHETHER OR NOT THE HOT-WATER ATTACHMENT WAS IN WORKING ORDER. THIS STOVE HAD NOT BEEN IN USE FOR SOME TIME, AND IT IS A WELL-KNOWN FACT THAT IF ANY OBSTRUCTION TAKES PLACE IN THE CIRCULATING SYSTEM IT REQUIRES VERY LITTLE HEAT TO GENERATE STEAM IN THE HOT-WATER ATTACHMENT IN THE FIRE BOX AND AN EXPLOSION IS CERTAIN TO OCCUR.

THE CLAIMANT REPAIRED THE STOVE UNDER THE DIRECTION OF THE INSPECTOR IN CHARGE, AND THE VOUCHER FOR THE EXPENSE THEREOF, AS PAYABLE FROM THE APPROPRIATION "EXPENSES OF REGULATING IMMIGRATION, 1925," ACT OF MAY 28, 1924, 43 STAT. 240, BEARS THE APPROVAL OF THE COMMISSIONER GENERAL.

THE APPROPRIATION PROPOSED TO BE CHARGED DOES NOT PROVIDE IN SPECIFIC TERMS FOR THE PAYMENT OF DAMAGES OR COST OF REPAIRS IN SUCH A CASE AS HERE INVOLVED. NOR IS THERE ANY SHOWING OF TERMS OF THE VERBAL AGREEMENT UNDER WHICH THE LEASED PREMISES WERE OCCUPIED AT THE TIME OF THE EXPLOSION THAT COULD BE CONSTRUED TO OBLIGATE THE GOVERNMENT TO PAY THE EXPENSE IN QUESTION. THE OWNER OF THE LEASED PREMISES LOANED THE STOVE TO THE LESSEE, THE GOVERNMENT, WITHOUT ANY AGREEMENT TO COMPENSATE THE OWNER FOR THE USE THEREOF OR TO ASSUME SPECIAL LIABILITY FOR DAMAGES THERETO.

THE LAW IS WELL SETTLED THAT WHERE A PERSON BORROWS AN ARTICLE OF PERSONAL PROPERTY WITHOUT ANY AGREEMENT TO COMPENSATE THE OWNER FOR THE USE THEREOF HE WILL NOT BE LIABLE FOR THE LOSS OF SUCH ARTICLE OR ANY DAMAGE THERETO UNLESS SUCH DAMAGE OR LOSS WAS CAUSED BY HIS NEGLIGENCE. HE MUST, HOWEVER, EXERCISE A GREATER DEGREE OF CARE OVER THE PROPERTY THAN WOULD BE REQUIRED IN A CASE OF A BAILEE FOR HIRE, AND WILL BE HELD LIABLE FOR LOSS OR DAMAGE CAUSED BY BUT SLIGHT NEGLIGENCE ON HIS PART. BUT EVEN IF IN THE INSTANT CASE IT WERE ESTABLISHED THAT THE STOVE WAS DAMAGED THROUGH THE NEGLIGENCE OF THE GOVERNMENT'S OFFICERS, THERE WOULD THEREBY BE CREATED NO LEGAL LIABILITY AGAINST THE UNITED STATES, AS IT IS WELL SETTLED THAT THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENCE OF ITS OFFICERS AND EMPLOYEES. SEE 11 COMP. DEC. 767; 18 ID. 252. THE EXPENSES HERE IN QUESTION, THEREFORE, ARE NOT PROPERLY PAYABLE FROM PUBLIC FUNDS IN THE ABSENCE OF AN APPROPRIATION SPECIFICALLY PROVIDING FOR PAYMENT OF DAMAGES OR COST OF REPAIRS IN SUCH A CASE.

THE RECORD IS NOT CLEAR THAT THE DAMAGE TO THE STOVE WAS WITHOUT NEGLIGENCE ON THE PART OF THE GOVERNMENT'S OFFICERS OR EMPLOYEES. IF IT CAN BE ESTABLISHED THAT THE DAMAGE WAS THROUGH THE NEGLIGENCE OF SUCH OFFICERS OR EMPLOYEES ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, THE CLAIM WOULD BE FOR CONSIDERATION AND ACTION BY THE SECRETARY OF LABOR UNDER THE PROVISIONS OF THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066.