A-20350, NOVEMBER 1, 1927, 7 COMP. GEN. 304

A-20350: Nov 1, 1927

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WHILE BEING USED BY FOREST SERVICE THERE IS NO AUTHORITY UNDER THE ACT OF MARCH 4. WHICH WAS USED OCCASIONALLY IN THE MOVEMENT OF HIS CAMP FROM PLACE TO PLACE. FOR DECISION WHETHER PAYMENT IS AUTHORIZED UNDER THE ACT OF MARCH 4. P. HALEY AS REIMBURSEMENT OF THE VALUE OF A HORSE WHICH WAS BEING USED BY HIM AS TRAIL FOREMAN OF THE FOREST SERVICE IN MOVING HIS CAMP FROM PLACE TO PLACE AND WHICH WAS FOUND DEAD. THE HORSE WAS HIRED UNDER CONTRACT DATED MAY 1. WHICH IS IN TERMS IDENTICAL TO THE CONTRACT OF MARCH 17. PROVIDED: THAT HEREAFTER THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO REIMBURSE OWNERS OF HORSES. SUCH REIMBURSEMENT TO BE MADE FROM ANY AVAILABLE FUNDS IN THE APPROPRIATION TO WHICH THE HIRE OF SUCH EQUIPMENT IS PROPERLY CHARGEABLE.

A-20350, NOVEMBER 1, 1927, 7 COMP. GEN. 304

PROPERTY, PRIVATE - LOSS OF, WHILE BEING USED BY FOREST SERVICE THERE IS NO AUTHORITY UNDER THE ACT OF MARCH 4, 1913, 37 STAT. 843, TO REIMBURSE AN EMPLOYEE OF THE FOREST SERVICE FOR THE VALUE OF HIS HORSE, WHICH WAS USED OCCASIONALLY IN THE MOVEMENT OF HIS CAMP FROM PLACE TO PLACE, WHERE THE HORSE HAD BEEN TURNED OUT TO GRAZE AND HAD BEEN FOUND DEAD LYING ON ITS BACK IN A HOLE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, NOVEMBER 1, 1927:

THERE HAS BEEN RECEIVED YOUR REQUEST OF OCTOBER 22, 1927, FOR DECISION WHETHER PAYMENT IS AUTHORIZED UNDER THE ACT OF MARCH 4, 1913, 37 STAT. 843, OF $50 TO J. P. HALEY AS REIMBURSEMENT OF THE VALUE OF A HORSE WHICH WAS BEING USED BY HIM AS TRAIL FOREMAN OF THE FOREST SERVICE IN MOVING HIS CAMP FROM PLACE TO PLACE AND WHICH WAS FOUND DEAD, LYING ON ITS BACK IN A HOLE, THE NEXT DAY AFTER HAVING BEEN TURNED LOOSE TO GRAZE ON THE OPEN RANGE IN THE VICINITY OF THE CAMP.

THE HORSE WAS HIRED UNDER CONTRACT DATED MAY 1, 1926, WHICH IS IN TERMS IDENTICAL TO THE CONTRACT OF MARCH 17, 1924, QUOTED IN 5 COMP. GEN. 326, AND WHICH NEED NOT BE REPEATED HERE. THE ACT OF MARCH 4, 1913, 37 STAT. 843, PROVIDED:

THAT HEREAFTER THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO REIMBURSE OWNERS OF HORSES, VEHICLES, AND OTHER EQUIPMENT LOST, DAMAGED, OR DESTROYED WHILE BEING USED FOR NECESSARY FIRE FIGHTING, TRAIL, OR OFFICIAL BUSINESS, SUCH REIMBURSEMENT TO BE MADE FROM ANY AVAILABLE FUNDS IN THE APPROPRIATION TO WHICH THE HIRE OF SUCH EQUIPMENT IS PROPERLY CHARGEABLE.

IT APPEARS THAT SUBORDINATE OFFICIALS OF THE DEPARTMENT OF AGRICULTURE IN MEMORANDA DATED JULY 25 AND JUNE 30, 1927, HAVE ATTEMPTED TO DISTINGUISH THE FACTS OF THE LOSS IN THIS CASE FROM THE FACTS CONSIDERED IN THE DECISION IN 5 COMP. GEN. 326, WHERE IT WAS HELD THAT TO AUTHORIZE REIMBURSEMENT, THE LOSS MUST "HAVE BEEN CAUSED BY, AND AS A DIRECT RESULT OF, THE ACTUAL USE IN CONNECTION WITH THE WORK FOR WHICH HIRED.' IT MAY BE CONCEDED, AS ARGUED IN SAID MEMORANDA, THAT IT WAS MORE ECONOMICAL TO THE GOVERNMENT TO KEEP THIS HORSE UNDER CONTINUOUS HIRE IN THE VICINITY OF THE CAMP FOR USE EITHER IN MOVING THE CAMP OR IN GOING TO POSSIBLE FIRES THAN IT WOULD BE TO SECURE HORSES FROM THE VALLEY FOR EACH SEPARATE MOVE, WITH CONSEQUENT LOSS OF TWO DAYS' TIME IN SECURING AND RETURNING THE HORSES AND AT A GREATER HIRE FOR SHORT PERIODS OF TIME; ALSO THAT THE HORSE WAS IN THE USE OF THE FOREST SERVICE WHILE GRAZING ON THE RANGE. THESE RESPECTS THE FACTS OF THIS CASE DIFFER FROM THE FACTS CONSIDERED IN 5 COMP. GEN. 326, BUT SAID DIFFERENCE IS NOT SUFFICIENT TO BRING THE CASE WITHIN THE REQUIREMENTS OF THE ACT OF MARCH 4, 1913, BECAUSE IN ORDER TO JUSTIFY REIMBURSEMENT UNDER THE SAID STATUTE, THE HORSE MUST HAVE BEEN LOST, DAMAGED, OR DESTROYED "WHILE BEING USED FOR NECESSARY FIRE FIGHTING, TRAIL, OR OFFICIAL BUSINESS.' IT WOULD APPEAR TO BE OBVIOUS THAT THE "NECESSARY FIRE FIGHTING, TRAIL, OR OFFICIAL BUSINESS" USE OF THE HORSE MUST BE THE PROXIMATE CAUSE OF THE LOSS BEFORE REIMBURSEMENT THEREFOR IS AUTHORIZED. HERE, AT BEST, THE FACT THAT THE HORSE WAS USED TO OCCASIONALLY MOVE THE CAMP AND TO GO TO OCCASIONAL FIRES WAS BUT A REMOTE CAUSE OF THE LOSS. THE LYING DOWN OF THE HORSE TO ROLL AND THE FALLING INTO THE HOLE FROM WHICH IT COULD NOT EXTRICATE ITSELF WAS NOT A PROXIMATE RESULT OF USE OF THE HORSE IN "FIRE FIGHTING, TRAIL OR OFFICIAL BUSINESS.' SUCH A LOSS MIGHT HAVE HAPPENED AT ANY TIME AND IS DAMNUM ABSQUE INJURIA. THE GOVERNMENT CAN NOT UNDER THE STATUTE HERE INVOLVED BECOME AN INSURER AGAINST ANY AND ALL LOSS OF OR DAMAGE TO THE ANIMALS OR PROPERTY WHILE IN ITS CUSTODY.

IN VIEW OF THE FOREGOING, YOUR QUESTION MUST BE, AND IS, ANSWERED IN THE NEGATIVE.