A-18173, SEPTEMBER 27, 1927, 7 COMP. GEN. 236

A-18173: Sep 27, 1927

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PRIVATE - DAMAGED IN THE MILITARY SERVICE - CIVILIAN EMPLOYEE A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT IS NOT ENTITLED. FOR DECISION AS TO WHETHER PAYMENT IS AUTHORIZED OF A DAMAGE CLAIM PRESENTED BY MIGUEL B. CLAIM IS HEREBY SUBMITTED BY THE UNDERSIGNED FOR DAMAGE TO AND LOSS OF HIS PRIVATE PROPERTY. IN CONNECTION THEREWITH THE FOLLOWING FACTS AND CIRCUMSTANCES ARE GIVEN. 2. WAS SO EMPLOYED ON TUESDAY. I WAS STANDING ON THE GROUND AT THE SIDE OF A DOUGLAS 0 2 AIRPLANE. WAS HOLDING THE BOTTOM OF THE BAG. THE ESTIMATED COST OF REPLACEMENT OF THE ABOVE DESCRIBED SPECTACLES IS FIFTEEN DOLLARS ($15.00). FOR WHICH AMOUNT THIS CLAIM IS SUBMITTED. THIS CLAIM WAS PRESENTED TO THE COMMANDING OFFICER.

A-18173, SEPTEMBER 27, 1927, 7 COMP. GEN. 236

PROPERTY, PRIVATE - DAMAGED IN THE MILITARY SERVICE - CIVILIAN EMPLOYEE A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT IS NOT ENTITLED, UNDER THE PROVISIONS OF THE ACT OF APRIL 15, 1926, 44 STAT. 259, TO REIMBURSEMENT FOR DAMAGE TO HIS PRIVATE PROPERTY SUSTAINED IN THE COURSE OF AND AS AN INCIDENT TO HIS EMPLOYMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 27, 1927:

MAJOR W. D. DABNEY, ARMY FINANCE OFFICER AT FORT SAM HOUSTON, TEX., APPLIED APRIL 14, 1927, FOR DECISION AS TO WHETHER PAYMENT IS AUTHORIZED OF A DAMAGE CLAIM PRESENTED BY MIGUEL B. CASTANOS, A CIVIL SERVICE EMPLOYEE OF THE SAN ANTONIO AIR INTERMEDIATE DEPOT, DUNCAN FIELD, SAN ANTONIO, TEX., AS FOLLOWS:

1. CLAIM IS HEREBY SUBMITTED BY THE UNDERSIGNED FOR DAMAGE TO AND LOSS OF HIS PRIVATE PROPERTY, BEING ONE (1) PAIR OF SPECTACLES, SHELL RIM, WITH EAR BOWS, SUCH DAMAGE AND LOSS HAVING BEEN INCIDENT TO THE OPERATION OF THE ARMY, AND IN CONNECTION THEREWITH THE FOLLOWING FACTS AND CIRCUMSTANCES ARE GIVEN.

2. I AM EMPLOYED AS AIRPLANE MECHANIC, GRADE 2, AIR CORPS, AT LARGE, AT THE SAN ANTONIO AIR INTERMEDIATE DEPOT, DUNCAN FIELD, SAN ANTONIO, TEXAS, AT THE TEST HANGAR, FLYING DEPARTMENT, OF THAT DEPOT, AND WAS SO EMPLOYED ON TUESDAY, JANUARY 11, 1927.

3. ON TUESDAY, JANUARY 11, 1927, BETWEEN 10 A.M. AND 11 A.M., WHILE IN THE PROPER PERFORMANCE AT THE SAID DEPOT OF MY OFFICIAL DUTIES ABOVE STATED, I WAS STANDING ON THE GROUND AT THE SIDE OF A DOUGLAS 0 2 AIRPLANE, IN FRONT OF THE ABOVE-MENTIONED TEST HANGAR, ATTEMPTING TO LIFT A BAG OF SAND, WEIGHING APPROXIMATELY SEVENTY-FIVE (75) POUNDS, FOR USE AS BALLAST, INTO THE REAR COCKPIT OF THE SAID AIRPLANE, BEING OBLIGED TO LIFT THE SAID BAG TO A HEIGHT OF ABOUT SIX (6) FEET FOR THAT PURPOSE, SUCH WORK BEING A PART OF ANY OFFICIAL DUTIES. I HAD SUCCEEDED IN PLACING ABOUT ONE -THIRD ( 1/3 ( OF THE BAG ON THE EDGE OF THE REAR COCKPIT, AND WAS HOLDING THE BOTTOM OF THE BAG, WHEN THE BAG SLIPPED BACKWARD OUT OF MY HANDS AND FELL, STRIKING A GLANCING BLOW ON THE RIGHT SIDE OF MY HEAD, BREAKING THE EAR BOW OF THE ABOVE-MENTIONED SPECTACLES BY THE IMPACT AND KNOCKING THE SPECTACLES TO THE GROUND, WHICH COMPLETELY SHATTERED THE LENS AND BROKE THE FRAME THEREOF, RENDERING SUCH SPECTACLES COMPLETELY UNFIT FOR FURTHER USE.

5. THE ESTIMATED COST OF REPLACEMENT OF THE ABOVE DESCRIBED SPECTACLES IS FIFTEEN DOLLARS ($15.00), FOR WHICH AMOUNT THIS CLAIM IS SUBMITTED.

THIS CLAIM WAS PRESENTED TO THE COMMANDING OFFICER, SAN ANTONIO AIR INTERMEDIATE DEPOT, JANUARY 18, 1927, FOR APPROPRIATE ADMINISTRATIVE ACTION IN ACCORDANCE WITH ARMY REGULATIONS 35-7020 AND 35-7040 AND WITH THE REQUIREMENTS OF LAW AND BEING CLAIMED AS INCIDENT TO THE OPERATION OF THE ARMY, IT WAS THEN PROPERLY A MATTER FOR SUBMISSION TO THIS OFFICE FOR DIRECT SETTLEMENT AS PRESCRIBED IN THE WAR DEPARTMENT APPROPRIATION ACT OF APRIL 15, 1926, 44 STAT. 259:

CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY

FOR PAYMENT OF CLAIMS NOT EXCEEDING $500 EACH IN AMOUNT FOR DAMAGES TO OR LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY THAT HAVE ACCRUED, OR MAY HEREAFTER ACCRUE, FROM TIME TO TIME, $25,000: PROVIDED, THAT SETTLEMENT OF SUCH CLAIMS SHALL BE MADE BY THE GENERAL ACCOUNTING OFFICE, UPON THE APPROVAL AND RECOMMENDATION OF THE SECRETARY OF WAR, WHERE THE AMOUNT OF THE DAMAGES HAS BEEN ASCERTAINED BY THE WAR DEPARTMENT, AND PAYMENT THEREOF WILL BE ACCEPTED BY THE OWNERS OF THE PROPERTY IN FULL SATISFACTION OF SUCH DAMAGES.

SUBSTANTIALLY SIMILAR PROVISIONS HAVE BEEN CONTAINED IN EACH OF THE ANNUAL WAR DEPARTMENT APPROPRIATION ACTS BEGINNING WITH THAT FOR THE FISCAL YEAR 1917, ACT OF AUGUST 29, 1916, 39 STAT. 639, AND THE DECISION A -13779 ADDRESSED TO THE SECRETARY OF WAR JULY 20, 1926, 6 COMP. GEN. 52, CONTAINS A COMPLETE EXPOSITION OF THIS LEGISLATION, AND OF THE LEADING DECISIONS WHEREIN APPLICATION THEREOF HAS BEEN MADE TO SPECIFIC CASES. THE UNIFORM RULING HAS BEEN THAT THE PROPERTY WHOSE LOSS OR INJURY WAS DIRECTLY IN CONTEMPLATION IS UNQUESTIONABLY PROPERTY IN THE POSSESSION OF PERSONS NOT CONNECTED WITH THE WAR DEPARTMENT, WITH WHICH THE ARMY ACTIVITIES ENUMERATED WOULD COME IN CONTACT ONLY EXTERNALLY, AND WHERE THE LOSS OR INJURY ARISES FROM CAUSES ENTIRELY OUTSIDE OF AND FOREIGN TO THE OWNER'S ORDINARY AND USUAL OCCUPATION. THAT A CIVIL SERVICE EMPLOYEE OF THE WAR DEPARTMENT IS NOT ENTITLED TO THE BENEFIT OF THIS LEGISLATION WHERE THE LOSS OR INJURY IS AN INCIDENT OF THE SERVICE IN WHICH THE EMPLOYEE IS ENGAGED IS SETTLED. 27 COMP. DEC. 669, 672.

ALTHOUGH A SURVEY WAS HAD, BY ONE OFFICER, ON ACCOUNT OF THIS CLAIM, AND APPROVAL WAS GIVEN ON FEBRUARY 14, 1927, BY THE CHIEF OF THE AIR CORPS AND ON MARCH 3, 1927, BY THE SECRETARY OF WAR, AS CLAIM FOR DAMAGES TO PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY, WHEN THE MATTER WAS REFERRED TO THE OFFICE OF THE CHIEF OF FINANCE IN THE REGULAR COURSE OF PROCEDURE UNDER A.R. 35-7040, PARAGRAPH 3, IT WAS RECOGNIZED SUCH A CLAIM WAS NOT ALLOWABLE UPON THAT BASIS, AND INSTEAD OF SO INFORMING THE CLAIMANT OR OF SUBMITTING THE CLAIM TO THIS OFFICE FOR DIRECT SETTLEMENT AND DISALLOWANCE, WHICH WOULD HAVE BEEN THE CORRECT PROCEDURE, THE MATTER WAS REFERRED TO THE FINANCE OFFICER AT FORT SAM HOUSTON, TEX., AS A MATTER COGNIZABLE AND FOR PAYMENT BY HIM UNDER THE PROCEDURE SET UP IN A.R. 35-7060 AND THE PROVISION IN THE WAR DEPARTMENT APPROPRIATION ACT OF APRIL 15, 1926, 44 STAT. 269, AS FOLLOWS:

* * * NOT MORE THAN $6,000 MAY BE EXPENDED FOR SETTLEMENT OF CLAIMS (NOT EXCEEDING $250 EACH) FOR DAMAGES TO PERSONS AND PRIVATE PROPERTY RESULTING FROM THE OPERATION OF AIRCRAFT AT HOME AND ABROAD WHEN EACH CLAIM IS SUBSTANTIATED BY A SURVEY REPORT OF A BOARD OF OFFICERS APPOINTED BY THE COMMANDING OFFICER OF THE NEAREST AVIATION POST AND APPROVED BY THE CHIEF OF AIR SERVICE AND THE SECRETARY OF WAR. * * *

THIS PROVISION, LIKE THE ONE FOR THE SETTLEMENT OF CLAIMS FOR DAMAGES TO OR LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY, HEREINBEFORE DISCUSSED, HAS BEEN CONTAINED IN SUBSTANTIALLY SIMILAR LANGUAGE IN EACH OF THE SEVERAL WAR DEPARTMENT APPROPRIATION ACTS: JULY 11, 1919, 41 STAT. 109; JUNE 5, 1920, 41 STAT. 953; JUNE 30, 1921, 42 STAT. 73; JUNE 30, 1922, 42 STAT. 737; MARCH 2, 1923, 42 STAT. 1398; JUNE 7, 1924, 43 STAT. 492; FEBRUARY 12, 1925, 43 STAT. 907; APRIL 15, 1926, 44 STAT. 269; AND FEBRUARY 23, 1927, 44 STAT. 1120. IN ORDER TO SECURE FROM CONGRESS THE ENACTMENT OF THIS LEGISLATION IN THE ANNUAL APPROPRIATION ACTS MAKING IMMEDIATELY AVAILABLE A SMALL SUM FOR THE SETTLEMENT OF SMALL CLAIMS ARISING FROM THE OPERATION OF AIRCRAFT, IT HAS BEEN NECESSARY TO EXPLAIN IN DETAIL THE CHARACTER, APPROXIMATE NUMBER, AND THE COST OF SUCH CLAIMS, AND THE FOLLOWING EXTRACTS FROM THE HEARINGS ON THE SEVERAL APPROPRIATION ACTS LEAVE NO DOUBT IN REFERENCE TO THE TYPE OF CLAIMS WHICH ARE PROPERLY FOR SETTLEMENT:

HEARINGS, 1921, APPROPRIATIONS, PAGES 434-435:

COLONEL FULLER. * * * THE ADVANTAGE TO THE GOVERNMENT IN HAVING SUCH A PROVISION IS TO PERMIT A CLAIM TO BE SETTLED RIGHT THERE, INSTEAD OF HAVING IT RUN ON AND HAVING THEM PUT IN A WHOLE LOT OF OTHER THINGS, WHICH INCREASES THE TOTAL AMOUNT OF THE CLAIM. IF IT CAN BE SETTLED RIGHT ON THE SPOT WE CAN SAVE MONEY FOR THE GOVERNMENT.

THE CHAIRMAN. AND THE INDIGNATION ON THE PART OF THE PERSON WHOSE PROPERTY IS DESTROYED?

GENERAL MENOHER. WHO CAN NOT SEE DAMAGES FORTHCOMING.

MR. GREENE. WHAT IS THE NATURE OF THE DAMAGE AND THE EXTENT OF THE COST OF THE DAMAGE?

COLONEL FULLER. UNFORTUNATELY, WHEN A MAN'S ENGINE STOPS HE MUST PICK OUT A GOOD FIELD IN WHICH TO MAKE A LANDING, AND THE BEST ONES ARE GENERALLY THE CULTIVATED ONES.

MR. GREENE. HOW MUCH DAMAGE DOES IT ORDINARILY DO BY ALIGHTING IN SUCH A PLACE?

COLONEL FULLER. THOSE DAMAGES ARE ALL SMALL.

COLONEL FICKEL. I HANDLE THOSE CASES IN THE OFFICE, AND THE LARGEST PROPERTY DAMAGED HAS NOT EXCEEDED $250. * * *

HEARINGS, 1923 APPROPRIATION, PAGE 864:

MR. STAFFORD. HAVE THERE BEEN ANY INSTANCES OF CLAIMS WHERE THE AMOUNT ASKED WAS GREATER THAN $250?

GENERAL PATRICK. YES, SIR.

MR. STAFFORD. WHERE YOU THOUGH THE MERITS OF THE CASE REQUIRED AN AWARD OF A LARGER AMOUNT?

GENERAL PATRICK. YES, SIR. THIS ACCIDENT WHICH HAPPENED AT MOUNDSVILLE, WHERE AN AIRPLANE ACTUALLY DASHED INTO A CROWD AND DESTROYED A NUMBER OF MOTORS.

HEARINGS, 1924, APPROPRIATION, PAGE 509:

MR. ANTHONY. AND FOR CLAIMS FOR DAMAGES YOU ARE ASKING $4,000.

GENERAL PATRICK. YES, SIR. THAT IS IN CASE AN AIRPLANE HAS A FORCED LANDING AND DESTROYS A MAN'S CROP OR SOMETHING OF THAT SORT.

HEARINGS, 1925 APPROPRIATION, PAGE 945:

MR. ANTHONY. YOU HAVE AN ITEM FOR CLAIMS FOR DAMAGES, AMOUNTING TO $4,000. WHAT DO YOU PAY OUT OF THAT?

GENERAL PATRICK. IF AN AIRPLANE MAKES A FORCED LANDING AND DAMAGES ANY PROPERTY, WE ARE AUTHORIZED TO PAY THOSE CLAIMS, PROVIDED NO ONE CLAIM IS IN EXCESS OF $250.

HEARINGS, 1928 APPROPRIATION, PAGE 535:

MR. BARBOUR. * * * WHAT IS THE NATURE OF THOSE CLAIMS?

GENERAL PATRICK. IF AN AIRPLANE IS FORCED DOWN FOR ANY REASON AND LANDS IN A FIELD, AND THE CROP IS DAMAGED, THIS AMOUNT TAKES CARE OF THOSE DAMAGES. * * * LAST YEAR IT AMOUNTED TO ABOUT $4,000. GENERALLY, THEY ARE MINOR THINGS, SUCH AS CROP DAMAGE, AND WITH NO ONE EXCEEDING $250.

IN VIEW OF THE FACT THAT THE SURVEY REPORT IN CONNECTION WITH MR. CASTANOS' CLAIM WAS MADE BY A SINGLE OFFICER, FIRST LIEUT. H. A. HALVERSON, A.C., INSTEAD OF BY A "BOARD OF OFFICERS" AS PRESCRIBED IN THE STATUTE, THE FACT THAT THE LOSS OR INJURY CLEARLY DID NOT RESULT "FROM THE OPERATION OF AIRCRAFT," AND THE FACT THAT THE CLAIM HAS NOT BEEN APPROVED EITHER BY THE SECRETARY OF WAR OR THE CHIEF OF AIR SERVICE FOR PAYMENT UNDER THE ACT OF APRIL 15, 1926, 44 STAT. 269, IT IS NOT UNDERSTOOD WHY THE OFFICE OF THE CHIEF OF FINANCE REFERRED THE CLAIM TO THE DISBURSING OFFICER AT SAN ANTONIO FOR PAYMENT; ESPECIALLY SO WHEN IT IS FURTHER CONSIDERED THAT BOTH THE CHIEF OF AIR SERVICE AND THE SECRETARY OF WAR REFUSED TO APPROVE FOR PAYMENT, UNDER A SIMILAR STATUTORY PROVISION IN THE ACT OF MARCH 2, 1923, 42 STAT. 1398, A CLAIM AGGREGATING $186.50 PRESENTED BY MAX E. CORNWELL, CIVILIAN AVIATION MECHANICIAN, FOR THE VALUE OF PRIVATE PROPERTY LOST BY HIM IN THE CRASHING AT MOUNDSVILLE, W.VA. (SEE HEARINGS ON 1923 APPROPRIATION, PAGE 864, ABOVE QUOTED), OF THE AIRPLANE IN WHICH HE WAS PROCEEDING, AS AN INCIDENT OF HIS EMPLOYMENT, FROM DAYTON, OHIO, TO HAMPTON, VA., AND THAT THE DECISION OF THIS OFFICE DATED SEPTEMBER 25, 1923, 3 COMP. GEN. 160, REVIEWING THE SETTLEMENT WHICH DISALLOWED THAT CLAIM, IS CONCLUSIVE AGAINST THE PAYMENT OF SUCH CLAIMS, THE LANGUAGE BEING AS FOLLOWS:

* * * THE CONCLUSION THAT CLAIMANT AS A CIVILIAN EMPLOYEE OF THE ARMY IS NOT ENTITLED TO REIMBURSEMENT FROM FUNDS APPROPRIATED FOR PAYMENT OF DAMAGE TO AND LOSS OF PRIVATE PROPERTY GENERALLY INCIDENT TO ACTIVITIES IN THE ARMY IS IN LINE WITH UNIFORM DECISIONS OF THE ACCOUNTING OFFICERS THAT SUCH PROVISIONS CONTEMPLATED PROPERTY IN THE POSSESSION OF PERSONS UNCONNECTED WITH THE ARMY ITSELF AND WITH WHICH THE ARMY ACTIVITIES ENUMERATED WOULD COME IN CONTACT ONLY EXTERNALLY. IN THE INSTANT CASE THE LOSS WAS AN INCIDENT OF THE SERVICE OF CLAIMANT AS AN AVIATION MECHANICIAN. IN ACCEPTING SUCH SERVICE HE VOLUNTARILY PLACED HIMSELF AND PERSONAL BAGGAGE UNDER THE CONTROL AND DIRECTION FOR THE JOURNEY OF THE PILOT OF THE AIRPLANE AND ASSUMED THE RISK OF ALL LOSS RESULTING FROM THE EMPLOYMENT NOT EXPRESSLY PROVIDED AGAINST BY LAW. 27 COMP. DEC. 672. SEE ALSO 26 ID., 826; 3 COMP. GEN. 22. THE FACT THAT SPECIFIC PROVISION IS NOT MADE FOR REIMBURSEMENT OF CIVILIAN EMPLOYEES OF THE ARMY OF THE VALUE OF PRIVATE PROPERTY LOST INCIDENT TO THEIR EMPLOYMENT IN A MANNER SIMILAR TO THAT MADE FOR REIMBURSEMENT OF COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY OF THE VALUE OF PRIVATE PROPERTY LOST BY THEM UNDER CERTAIN CONDITIONS DOES NOT JUSTIFY CONSTRUCTION OF STATUTES INTENDED TO OPERATE IN FAVOR OF OWNERS OF PRIVATE PROPERTY IN NO MANNER CONNECTED WITH THE ARMY, TO INCLUDE SUCH CIVILIAN EMPLOYEES.