A-25418, FEBRUARY 9, 1929, 8 COMP. GEN. 420

A-25418: Feb 9, 1929

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LOST - ALASKA RAILROAD EMPLOYEES AS EMPLOYEES OF THE ALASKA RAILROAD ARE EMPLOYEES OF THE UNITED STATES THEY ARE NOT ENTITLED TO BE REIMBURSED FROM THE APPROPRIATION "ALASKA RAILROAD FUND. 1929: THERE HAVE BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT SEVEN CLAIMS FOR LOSS OF CLOTHING AND OTHER PERSONAL EFFECTS CARRIED BY THE CLAIMANTS AS EMPLOYEES OF THE ALASKA RAILROAD IN CABOOSES 1008 AND 1016 AND DESTROYED BY FIRE IN A TRAIN WRECK AT MILE 58.6 ON FEBRUARY 13. DAXON - - - 63.25 TOTAL- - - - - - - - - - - - - - - - - - - - - - - - - - 674.25 EACH CLAIM IS SUPPORTED BY A SWORN STATEMENT BY THE CLAIMANT SETTING FORTH THE ARTICLES DESTROYED. THAT THE ENUMERATED ARTICLES ARE THE PERSONAL PROPERTY OF THE CLAIMANT AND THAT THE ARTICLES WERE DESTROYED BY FIRE IN SAID TRAIN WRECK.

A-25418, FEBRUARY 9, 1929, 8 COMP. GEN. 420

PROPERTY, PRIVATE, LOST - ALASKA RAILROAD EMPLOYEES AS EMPLOYEES OF THE ALASKA RAILROAD ARE EMPLOYEES OF THE UNITED STATES THEY ARE NOT ENTITLED TO BE REIMBURSED FROM THE APPROPRIATION "ALASKA RAILROAD FUND," WHICH PROVIDES IN PART FOR "PAYMENT OF CLAIMS FOR LOSSES AND DAMAGES ARISING FROM OPERATION," FOR THEIR PERSONAL PROPERTY LOST OR DAMAGED IN CONNECTION WITH THE OPERATION OF THE RAILROAD, IN THE ABSENCE OF SPECIFIC PROVISION IN THE APPROPRIATION ACT OR OTHER LAW THEREFOR.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 9, 1929:

THERE HAVE BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT SEVEN CLAIMS FOR LOSS OF CLOTHING AND OTHER PERSONAL EFFECTS CARRIED BY THE CLAIMANTS AS EMPLOYEES OF THE ALASKA RAILROAD IN CABOOSES 1008 AND 1016 AND DESTROYED BY FIRE IN A TRAIN WRECK AT MILE 58.6 ON FEBRUARY 13, 1928, AS FOLLOWS: CHART

INTERIOR CLAIM NO. VOUCHER NO. CLAIMANT AMOUNT 2978- - - - - - - - - -

A-4035 J. J. COURTNEY- - - - $122.50 2979- - - - - - - - - A-4036 FRANK B. CURRAN - - - 71.00 2980- - - - - - - - - A-4037 M. DEEGAN- - - - - - 67.00 2981- - - - - - - - - - A-4038 W. A. SMITH- - - - -- 101.50 2982- - - - - - - - - - A-4039 PETER MCMAHON- - - -- 136.50 2984---------- A-4041 F. W. BRAYFORD ------ 112.50 2985- - - --- - - - - - A-4042 DANIEL S. DAXON - - - 63.25

TOTAL- - - - - - - - - - - - - - - - - - - - - - - - - - 674.25

EACH CLAIM IS SUPPORTED BY A SWORN STATEMENT BY THE CLAIMANT SETTING FORTH THE ARTICLES DESTROYED, THEIR ACTUAL COST, LENGTH OF TIME IN USE, CONDITION AT TIME OF LOSS, VALUE AT TIME OF LOSS, THAT THE ENUMERATED ARTICLES ARE THE PERSONAL PROPERTY OF THE CLAIMANT AND THAT THE ARTICLES WERE DESTROYED BY FIRE IN SAID TRAIN WRECK. THERE IS ATTACHED, ALSO, TO EACH CLAIM A CERTIFICATE BY THE SUPERINTENDENT OF TRANSPORTATION, APPROVED BY THE GENERAL MANAGER, SETTING FORTH THE CAPACITY IN WHICH THE CLAIMANT WAS EMPLOYED; THE FACT THAT THE ITEMS AS SHOWN IN THE CLAIM WERE A PART OF THE PERSONAL OUTFIT WHICH IT IS USUAL AND NECESSARY FOR SUCH EMPLOYEE TO HAVE WITH HIM WHILE ENGAGED IN SUCH WORK; THAT THE VALUES STATED ARE REASONABLE AND NOT IN EXCESS OF THE COST OF REPLACEMENT; THAT THE LOSS OF ARTICLES WAS A DIRECT RESULT OF THE WRECK; THAT THE WRECK WAS CAUSED BY EXTRA 701 NORTH (FREIGHT) RUNNING INTO THE REAR OF EXTRA 31 NORTH (SNOWPLOW WORK TRAIN) DEMOLISHING A CABOOSE FURNISHED BY THE RAILROAD FOR USE BY THE CLAIMANT AND OTHER EMPLOYEES AS SLEEPING AND LIVING QUARTERS WHILE ENGAGED IN SNOW-PLOW WORK; THAT THE CABOOSE IMMEDIATELY CAUGHT FIRE AND WAS COMPLETELY DESTROYED; THAT THE INVESTIGATION OF THE CAUSES OF THE ACCIDENT RESULTED IN THE CONCLUSION THAT IT WAS DUE TO NEGLIGENCE ON THE PART OF THE CONDUCTOR OF EXTRA 31 NORTH AND THE ENGINEER OF EXTRA 701 NORTH; AND THAT THE CLAIMANT WAS IN NO WAY RESPONSIBLE FOR THE WRECK.

THE CONCLUSION AS TO THE NEGLIGENCE OF THE CONDUCTOR AND THE ENGINEER APPEARS TO BE SUPPORTED BY THE TRANSCRIPT OF THE RECORD OF INQUIRY ACCOMPANYING THE CLAIMS.

SINCE THE COMPLETION OF THE ALASKA RAILROAD AND THE BEGINNING OF 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 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 OF OCTOBER 10, 1927, A-19928. SEE, ALSO, 8 COMP. GEN. 273. HOWEVER, THE CLAUSE REFERRED TO HAS NEVER BEEN HELD TO AUTHORIZE PAYMENT FOR LOSSES OF OR DAMAGES TO PRIVATE PROPERTY OF EMPLOYEES OF THE RAILROAD.

IT HAS BEEN HELD IN CONNECTION WITH CLAIMS FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY, THAT THE APPROPRIATION ACTS ARE LIMITED IN THEIR APPLICATION TO CLAIMS OF PERSONS NOT IN OR SERVING UNDER THE CONTROL OF THE ARMY. UNDER THESE RULINGS ARMY OFFICERS AND CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT WERE DENIED THE RIGHT TO REIMBURSEMENT FOR THEIR PERSONAL PROPERTY WHICH WAS LOST OR DAMAGED DURING ARMY OPERATIONS. 26 COMP. DEC. 826; 27 ID. 669; 6 COMP. GEN. 52; 7 ID. 236; ID. 480.

IN 6 COMP. GEN. 52, AT PAGE 58, IN COMMENTING ON A DECISION OF THE COMPTROLLER OF THE TREASURY, 26 COMP. DEC. 826, IT WAS STATED:

CONCERNING THE EQUITIES INVOLVED IT WAS POINTED OUT THAT WHEN CONSIDERING THE GENERAL SUBJECT OF RELIEF TO MEMBERS OF THE MILITARY FORCES CONGRESS WOULD NATURALLY OMIT TO PROVIDE RELIEF IN SUCH SITUATIONS AS IN ITS JUDGMENT DID NOT MERIT RELIEF, WHICH BY REASON OF THE ASSUMPTION OF THE MILITARY RISK BY A MEMBER OF THE MILITARY FORCES MIGHT VERY WELL INCLUDE MANY SITUATIONS IN WHICH UNDER EXACTLY SIMILAR CIRCUMSTANCES RELIEF MIGHT PROPERLY BE AFFORDED CIVILIANS, FOR, IN THE CASE OF THE CIVILIAN OWNER THE LOSS ARISES FROM CAUSES ENTIRELY OUTSIDE OF AND FOREIGN TO HIS ORDINARY AND USUAL OCCUPATION, WHEREAS IN THE CASE OF THE MILITARY OWNER IT ARISES THROUGH CAUSES DIRECTLY AND INTIMATELY CONNECTED WITH HIS OCCUPATION, USUALLY THROUGH AGENCIES WITH WHICH HIS RELATION IS ANALOGOUS TO THAT OF A FELLOW SERVANT. THE CONCLUSION WAS REACHED FROM THIS REASONING THAT THE TWO SITUATIONS BEING SO WIDELY DIFFERENT BOTH IN EFFECT AND PRINCIPLE, THE INTENTION OF CONGRESS TO APPLY THE SAME PROVISION TO THEM BOTH SHOULD NOT BE PRESUMED IF IT IS NOT DIRECTLY EXPRESSED OR CLEARLY IMPLIED.

IN 4 COMP. GEN. 441 IT WAS HELD THAT IN THE ABSENCE OF AN APPROPRIATION SPECIFICALLY PROVIDING THEREFOR PROHIBITION AGENTS ARE NOT AUTHORIZED TO BE REIMBURSED FOR THE ESTIMATED VALUE OF ARTICLES OF PERSONAL WEARING APPAREL DESTROYED BY EXPLOSION AND FIRE WHILE ON A PATROL BOAT IN THE DISCHARGE OF THEIR OFFICIAL DUTIES.

THE GENERAL RULE FOLLOWED IN THE DECISIONS ABOVE CITED IS THAT EMPLOYEES OF THE GOVERNMENT MAY NOT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR EITHER IN THE APPROPRIATION WHICH PROVIDES FOR PAYMENT OF CLAIMS FOR LOSSES AND DAMAGES ARISING IN THE OPERATION OF THE GOVERNMENTAL AGENCY IN WHICH THEY ARE EMPLOYED WHEN THEIR PROPERTY IS LOST, DAMAGED, OR DESTROYED THROUGH ANY ACTIVITY OF SUCH AGENCY. THIS RULE HAS ITS BASIS IN THE APPARENT INTENT OF THE CONGRESS TO PROVIDE FOR SUCH RELIEF TO PERSONS WHO SUSTAIN LOSS FROM CAUSES OUTSIDE OF AND FOREIGN TO THEIR ORDINARY AND USUAL OCCUPATION SUCH AS PERSONS DEALING WITH THE AGENCY IN A BUSINESS WAYOR PERSONS WHO HAVE ACCIDENTAL CONTACT, RATHER THAN TO EXTEND THE RELIEF TO PERSONS WHOSE LOSSES OCCUR IN CONNECTION WITH THE DISCHARGE OF THEIR OFFICIAL DUTIES, OR IN CASES WHERE THE LOSS IS OCCASIONED THROUGH CAUSES DIRECTLY CONNECTED WITH THEIR OCCUPATION THROUGH AGENCIES WITH WHICH THE PERSONS SUSTAINING THE LOSS HAVE RELATIONSHIP ANALOGOUS TO THAT OF A FELLOW SERVANT.

THE ACT MAKING APPROPRIATION FOR THE "ALASKA RAILROAD FUND" FOR THE FISCAL YEAR 1929, ACT OF MARCH 7, 1928, 45 STAT. 240, IN PROVIDING FOR "PAYMENT OF CLAIMS FOR LOSSES AND DAMAGES ARISING FROM OPERATIONS," MAKES NO SPECIFIC PROVISION FOR PAYMENT OF SUCH CLAIMS TO EMPLOYEES OF THE RAILROAD. NEITHER DOES THERE APPEAR TO BE ANY OTHER LAW AUTHORIZING SUCH PAYMENTS TO EMPLOYEES OF THE RAILROAD OR TO GOVERNMENT EMPLOYEES GENERALLY. THE ENGINEER AND THE CONDUCTOR THROUGH WHOSE NEGLIGENCE THE LOSS OCCURRED ARE FELLOW SERVANTS OF THE CLAIMANTS. THE ALASKA RAILROAD HAS BEEN HELD IN BALLAINE V. ALASKA NORTHERN RAILWAY COMPANY, 259 FED.REP. 183, TO BE A GOVERNMENTAL AGENCY. THE CLAIMANTS ARE EMPLOYEES OF THE RAILROAD AND, THEREFORE,EMPLOYEES OF THE UNITED STATES, AND, UNDER THE ABOVE RULE, ARE NOT ENTITLED TO BE PAID UNDER THE APPROPRIATION FOR THE SUPPORT OF THE ALASKA RAILROAD FOR THEIR PERSONAL PROPERTY LOST IN CONNECTION WITH THE OPERATION OF THE RAILROAD, SUCH EMPLOYEES BEING PRESUMED TO HAVE ASSUMED SUCH RISKS AS INCIDENTAL TO THEIR EMPLOYMENT.