A-17851, MAY 26, 1927, 6 COMP. GEN. 770

A-17851: May 26, 1927

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THE FACTS AND CIRCUMSTANCES UNDER WHICH THE CLAIM AROSE ARE SET FORTH IN YOUR LETTER AS OLLOWS: * * * WHEN THE FLEET WAS AT MELBOURNE. ENLISTED MEN ON LIBERTY WERE ENTERTAINED BY RESIDENTS OF THE NEIGHBORING TOWN OF HEALESVILLE. AUTOMOBILES WITH DRIVERS WERE PLACED AT THEIR DISPOSAL AND THEY WERE CONVEYED TO POINTS OF INTEREST. WAS SO EMPLOYED. WHILE THE DRIVER WAS ABSENT THE AUTOMOBILE WAS DRIVEN UP AND DOWN THE HIGHWAY BY SOME MAN IN THE UNIFORM OF AN ENLISTED MAN IN THE UNITED STATES NAVY. - WHETHER OR NOT THE PASSENGER LEFT BEHIND IS NOT CLEAR. - AND IT RAN OVER A BANK AND WAS BADLY DAMAGED. THE CAR WAS INSURED BY THE AUTOMOBILE INSURANCE COMPANY OF AUSTRALIA. THIS CLAIM IS FOR SEVENTY-FIVE POUNDS STERLING.

A-17851, MAY 26, 1927, 6 COMP. GEN. 770

PROPERTY, PRIVATE - DAMAGES - SUBROGATION OF INSURER THE CLAIM OF AN INSURER OF A PRIVATELY OWNED AUTOMOBILE FOR THE AMOUNT OF DAMAGES PAID THE OWNER, NOT IN EXCESS OF $500, TO COVER DAMAGES FOR WHICH AN ENLISTED MAN OF THE NAVY HAD BEEN FOUND RESPONSIBLE OTHER THAN THROUGH NEGLIGENCE WITHIN THE SCOPE OF HIS EMPLOYMENT, MAY NOT BE PAID FROM THE APPROPRIATION "PAY, MISCELLANEOUS" AS MADE IN THE ACT OF MAY 21, 1926, 44 STAT. 593, PROVIDING FOR PAYMENT OF CLAIMS FOR DAMAGES UNDER NAVAL ACT APPROVED JULY 11, 1919," 41 STAT. 132.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 26, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MARCH 21, 1927, REQUESTING DECISION WHETHER THE CLAIM OF THE AUTOMOBILE INSURANCE CO. OF AUSTRALIA (LTD.), FOR 75 POUNDS STERLING, REPRESENTING DAMAGES TO A PRIVATELY OWNED AUTOMOBILE, MAY BE PAID UNDER THE APPROPRIATION "PAY, MISCELLANEOUS" AS MADE IN THE ACT OF MAY 21, 1926, 44 STAT. 593, PROVIDING "FOR PAYMENT OF CLAIMS FOR DAMAGES UNDER NAVAL ACT APPROVED JULY 11, 1919.'

THE FACTS AND CIRCUMSTANCES UNDER WHICH THE CLAIM AROSE ARE SET FORTH IN YOUR LETTER AS OLLOWS:

* * * WHEN THE FLEET WAS AT MELBOURNE, AUSTRALIA, IN AUGUST, 1925, ENLISTED MEN ON LIBERTY WERE ENTERTAINED BY RESIDENTS OF THE NEIGHBORING TOWN OF HEALESVILLE. AUTOMOBILES WITH DRIVERS WERE PLACED AT THEIR DISPOSAL AND THEY WERE CONVEYED TO POINTS OF INTEREST. ONE AUTOMOBILE, OWNED BY THE HEALESVILLE MOTOR COMPANY, WAS SO EMPLOYED. THE DRIVER LEFT THE AUTOMOBILE ON THE MAIN ROAD AND TOOK ALL BUT ONE OF HIS PASSENGERS DOWN A SIDE ROAD TO SEE A DAM. WHILE THE DRIVER WAS ABSENT THE AUTOMOBILE WAS DRIVEN UP AND DOWN THE HIGHWAY BY SOME MAN IN THE UNIFORM OF AN ENLISTED MAN IN THE UNITED STATES NAVY--- WHETHER OR NOT THE PASSENGER LEFT BEHIND IS NOT CLEAR--- AND IT RAN OVER A BANK AND WAS BADLY DAMAGED. THE CAR WAS INSURED BY THE AUTOMOBILE INSURANCE COMPANY OF AUSTRALIA, LIMITED, AND THIS INSURER, HAVING PAID THE DAMAGE TO THE OWNER, SUBMITS ITS CLAIM FOR REIMBURSEMENT TO THE SECRETARY OF THE NAVY. THIS CLAIM IS FOR SEVENTY-FIVE POUNDS STERLING.

REPORT OF INVESTIGATIONS BY OFFICERS OF THE FLEET LEAVE NO ROOM TO DOUBT THAT A MAN IN THE NAVAL SERVICE WAS RESPONSIBLE FOR THE DAMAGE TO THE AUTOMOBILE IN QUESTION. TO WHATEVER ENLISTED MAN THE DAMAGE MAY BE ASCRIBED, HE WAS NOT ACTING, AT THE TIME, WITHIN THE SCOPE OF HIS EMPLOYMENT, BUT WAS BEING ENTERTAINED BY PRIVATE PERSONS AS AN ACT OF HOSPITALITY. THE CLAIM IS, THEREFORE, NOT COGNIZABLE UNDER THE ACT OF DECEMBER 28, 1922.

THE ACT OF JULY 11, 1919, 41 STAT. 132, PROVIDES AS FOLLOWS:

* * * THAT THE SECRETARY OF THE NAVY IS AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY THE AMOUNTS DUE IN ALL CLAIMS FOR DAMAGES (OTHER THAN SUCH AS ARE OCCASIONED BY VESSELS OF THE NAVY), TO AND LOSS OF PRIVATELY OWNED PROPERTY, OCCURRING SUBSEQUENT TO APRIL 6, 1917, WHERE THE AMOUNT OF THE CLAIM DOES NOT EXCEED $500, FOR WHICH DAMAGE OR LOSS MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE FOUND TO BE RESPONSIBLE, ALL PAYMENTS IN SETTLEMENT OF SAID CLAIMS TO BE MADE OUT OF THE APPROPRIATION PAY, MISCELLANEOUS. * * *

IN DECISION OF APRIL 20, 1925, 4 COMP. GEN. 876, THERE WAS DISCUSSED THE RESPECTIVE SCOPE OF THE QUOTED STATUTE, AND OF THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, AUTHORIZING THE HEADS OF THE DEPARTMENTS TO CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE DAMAGE CLAIMS IN AMOUNTS NOT TO EXCEED $1,000 CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING, WITHIN THE SCOPE OF HIS EMPLOYMENT, AND WITH RESPECT TO THE EARLIER LAW IT WAS HELD:

* * * THE ONLY CLAIMS NOW FOR SETTLEMENT AND PAYMENT BY THE NAVY DEPARTMENT UNDER THE ACT OF JULY 11, 1919, ARE THOSE PRIVATE PROPERTY DAMAGE CLAIMS NOT IN EXCESS OF $500 FOR WHICH MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE DETERMINED TO BE RESPONSIBLE OTHER THAN THROUGH NEGLIGENCE IN THE SCOPE OF THEIR EMPLOYMENT.

THE IMMEDIATE MATTER FOR DETERMINATION IS WHETHER AN INSURANCE COMPANY HAVING PAID THE CLAIM OF ONE WHOSE PROPERTY WAS INJURED THROUGH THE ACT OF ONE IN THE NAVAL SERVICE MAY MAKE CLAIM UNDER THE TERMS OF THE ACT OF 1919 CITED. THE BENEFITS OF THE STATUTE CONSTITUTE AN EXCEPTION TO THE COMMON LAW RULE THAT THE GOVERNMENT IS NOT RESPONSIBLE FOR THE TORTS OF ITS AGENTS. IT DISCLOSES NO INTENT TO REIMBURSE THOSE WHO BY REASON OF THEIR CONTRACTUAL LIABILITY HAVE MADE GOOD A DAMAGE SUSTAINED FOR WHICH THERE MIGHT BE A CLAIM UNDER THE STATUTE BY THE INJURED PARTY.

YOU ARE ACCORDINGLY ADVISED THAT THE CLAIM IS NOT ONE PAYABLE UNDER THE APPROPRIATION IN QUESTION.