A-25050, NOVEMBER 26, 1928, 8 COMP. GEN. 273

A-25050: Nov 26, 1928

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" IS NOT AUTHORIZED. 1928: I HAVE YOUR LETTER OF NOVEMBER 3. THERE APPEARS TO BE NO STATUTE GIVING SUCH RIGHT WITH RESPECT TO DEATHS CAUSED BY THE ALASKA RAILROAD WHERE THE DECEASED WAS NOT AN EMPLOYEE OF THE RAILROAD. WITH RESPECT TO THE GENERAL RULE THAT THE UNITED STATES IS NOT RESPONSIBLE IN TORT LIABILITY UNLESS SPECIFICALLY MADE SO BY STATUTE. IT IS NOTED THE CLAIM AS PRESENTED IS NOT STATED AS FOR DAMAGES ON ACCOUNT OF INJURIES. WITH THE EXCEPTION OF THE TIME SHE WAS IN THE GOVERNMENT HOSPITAL FOR SIX DAYS FROM DATE OF INJURY TO DATE OF DEATH. NO ITEMIZED STATEMENT OF THE EXPENSES ALLEGED TO HAVE BEEN THUS INCURRED IS GIVEN. WHICH HE CLAIMS SHOULD BE PAID HIM BY THE ALASKA RAILROAD FOR THE REASON THAT HIS WIFE'S DEATH IS DIRECTLY ATTRIBUTABLE TO THE NEGLIGENCE.

A-25050, NOVEMBER 26, 1928, 8 COMP. GEN. 273

ALASKA RAILROAD - CLAIMS FOR DAMAGES ON ACCOUNT OF DEATH NO SPECIFIC PROVISION HAVING BEEN MADE BY STATUTE FOR THE PAYMENT OF CLAIMS FOR DAMAGES ON ACCOUNT OF DEATH RESULTING FROM INJURY RECEIVED IN A COLLISION WITH A CAR OF THE ALASKA RAILROAD, THE PAYMENT OF SUCH CLAIMS UNDER THE APPROPRIATION MADE FOR THE MAINTENANCE AND OPERATION OF THE RAILROAD, PROVIDING GENERALLY FOR THE "PAYMENT OF CLAIMS FOR LOSSES AND DAMAGES ARISING FROM OPERATION," IS NOT AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, NOVEMBER 26, 1928:

I HAVE YOUR LETTER OF NOVEMBER 3, 1928, REQUESTING TO BE ADVISED AS TO WHAT ACTION SHOULD BE TAKEN BY THE ALASKA RAILROAD WITH RESPECT TO A CLAIM FOR $5,000 FILED AGAINST IT BY GUST HALLER ON ACCOUNT OF THE DEATH OF HIS WIFE, MARIE HALLER, OCCASIONED BY BEING STRUCK OCTOBER 27, 1926, BY A BRILL CAR ON THE RAILROAD.

IN THE ABSENCE OF STATUTORY PROVISION THEREFOR A HUSBAND HAS NO RIGHT OF ACTION FOR DAMAGES FOR THE WRONGFUL DEATH OF HIS WIFE. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY V. CRAFT, 237 U.S. 648; MICHIGAN CENTRAL RAILROAD CO. V. VREELAND, 227 U.S. 59; STEWART V. BALTIMORE AND OHIO RAILROAD CO., 168 U.S. 445; MOBILE LIFE INSURANCE COMPANY V. BRAME, 95 U.S. 754; PULEM V. JACOB DOLD PACKING CO., 182 FED.REP. 356; FLORIDA CENTRAL AND PENINSULAR RAILROAD CO. V. SULLIVAN, 120 FED.REP. 799. THERE APPEARS TO BE NO STATUTE GIVING SUCH RIGHT WITH RESPECT TO DEATHS CAUSED BY THE ALASKA RAILROAD WHERE THE DECEASED WAS NOT AN EMPLOYEE OF THE RAILROAD. SEE IN THIS CONNECTION THE ACT OF APRIL 22, 1908, 35 STAT. 65, AS AMENDED, AND THE ACT OF SEPTEMBER 7, 1916, 39 STAT. 742.

IT HAS BEEN HELD, ALSO, THAT THE ALASKA RAILROAD CAN NOT BE SUED IN TORT WITHOUT THE CONSENT OF THE UNITED STATES. BALLAINE V. ALASKA NORTHERN RAILWAY COMPANY, 259 FED.REP. 183. SEE, ALSO, WITH RESPECT TO THE GENERAL RULE THAT THE UNITED STATES IS NOT RESPONSIBLE IN TORT LIABILITY UNLESS SPECIFICALLY MADE SO BY STATUTE, BIGBY V. UNITED STATES, 188 U.S. 400, AND THE WESTERN MAID, 257 U.S. 419.

IT IS NOTED THE CLAIM AS PRESENTED IS NOT STATED AS FOR DAMAGES ON ACCOUNT OF INJURIES, ETC., RECEIVED BY THE DECEASED, BUT FOR DAMAGES TO THE CLAIMANT AS A RESULT OF THE DEATH OF HIS WIFE. IN HIS AFFIDAVIT OF FEBRUARY 17, 1928, HE STATES THAT HE HAS PAID ALL EXPENSES INCURRED BY REASON OF THE INJURY, DEATH, AND BURIAL OF HIS WIFE, WITH THE EXCEPTION OF THE TIME SHE WAS IN THE GOVERNMENT HOSPITAL FOR SIX DAYS FROM DATE OF INJURY TO DATE OF DEATH. HOWEVER, NO ITEMIZED STATEMENT OF THE EXPENSES ALLEGED TO HAVE BEEN THUS INCURRED IS GIVEN. CLAIMANT STATES, ALSO, THAT, WITH HIS WIFE, HE HAD SPENT 10 YEARS HEWING OUT A HOME FROM THE WILDERNESS, WHICH HOME, BY REASON OF HER DEATH, MUST BE ABANDONED BECAUSE CLAIMANT CAN NOT LONGER LIVE THEREIN; THAT THE PERSONAL PROPERTY ACCUMULATED BY THEM HAS BEEN SACRIFICED AS A RESULT; AND THAT THE BREAKING UP OF CLAIMANT'S HOME, THE LOSS OF HIS WIFE AND HER COMPANIONSHIP ENTITLES HIM TO REASONABLE COMPENSATION IN THE SUM OF $5,000, WHICH HE CLAIMS SHOULD BE PAID HIM BY THE ALASKA RAILROAD FOR THE REASON THAT HIS WIFE'S DEATH IS DIRECTLY ATTRIBUTABLE TO THE NEGLIGENCE, INEFFICIENCY, AND INCOMPETENCY OF THE OFFICIALS AND EMPLOYEES IN THE OPERATION OF THE RAILROAD.

THERE ARE ALLEGATIONS IN THE AFFIDAVIT OF THE CLAIMANT PURPORTING TO ESTABLISH THE RESPONSIBILITY OF THE RAILROAD FOR THE INJURY AND DEATH OF MRS. HALLER, BUT OTHER DATA AND EVIDENCE IN THE CASE WOULD APPEAR TO SHOW THAT THE DECEASED WAS AT LEAST CHARGEABLE WITH CONTRIBUTORY NEGLIGENCE, IF NOT ENTIRELY TO BLAME FOR THE ACCIDENT. HOWEVER THAT MAY BE, THE PRIMARY QUESTION IS WHETHER OR NOT THE CLAIM MAY BE PAID FROM FUNDS APPROPRIATED FOR THE MAINTENANCE AND OPERATION OF THE ALASKA RAILROAD, OR FROM OTHER FUNDS, IF AND WHEN ITS LIABILITY FOR THE INJURY AND DEATH OF THE DECEASED SHALL HAVE BEEN ESTABLISHED.

SINCE THE COMPLETION OF THE ALASKA RAILROAD, AND BEGINNING WITH THE FISCAL YEAR 1926, THE APPROPRIATIONS MADE FOR THE MAINTENANCE AND OPERATION OF THE RAILROAD HAVE CONTAINED A CLAUSE TO THE EFFECT THAT FUNDS THEREIN APPROPRIATED WERE AVAILABLE FOR THE "PAYMENT OF CLAIMS FOR LOSSES AND DAMAGES ARISING FROM OPERATIONS.' SEE ACT OF MARCH 3, 1925, 43 STAT. 1182, AND SUBSEQUENT ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF THE INTERIOR. THE CLAUSE IN SUCH APPROPRIATIONS HAS BEEN CONSTRUED AS MAKING FUNDS AVAILABLE FOR THE PAYMENT OF CLAIMS FOR DAMAGES TO PROPERTY AND PERSONAL INJURIES ARISING FROM THE OPERATION OF THE RAILROAD AND EVEN TO PAY FOR LOSS OF WAGES ON ACCOUNT OF INJURIES SUSTAINED BY A PASSENGER ON ONE OF THE CARS OF THE RAILROAD. DECISION OCTOBER 10, 1927, A-19928. CASE OF DEATH, HOWEVER, A DIFFERENT SITUATION IS PRESENTED. THE RIGHT TO RECOVER DAMAGES FOR THE INJURIES RECEIVED BY THE DECEDENT DOES NOT SURVIVE (SEE CASES CITED IN SECOND PARAGRAPH HEREOF) AND THE DAMAGES COVERED BY THE PRESENT CLAIM, SUCH AS THE BREAKING UP OF CLAIMANT'S HOME AND THE LOSS OF A WIFE'S COMPANIONSHIP, ARE TOO CONJECTURAL AND REMOTE FROM THE CAUSE OF INJURY RESULTING IN THE DEATH TO BE CONSIDERED AS COVERED BY THE LOSSES AND DAMAGES CLAUSE IN THE APPROPRIATION. THERE BEING NO SPECIFIC LAW FOR THE PAYMENT OF DAMAGES SUCH AS HERE INVOLVED, NOR ANY APPROPRIATION MADE AVAILABLE THEREFOR, THE INESCAPABLE CONCLUSION IS THAT SUCH PAYMENT FROM PUBLIC FUNDS IS NOT AUTHORIZED.