A-25662, FEBRUARY 21, 1929, 8 COMP. GEN. 460

A-25662: Feb 21, 1929

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THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT. TO REIMBURSE THE OWNER FOR THE LOSS OF A HORSE THAT STRAYED AWAY OR FOR THE LOSS OF ONE-HALF SET OF HARNESS THAT WAS DESTROYED BY FIRE WHILE IN STORAGE. REIMBURSEMENT IS NOT AUTHORIZED. OF THE APPRAISED VALUE OF A HORSE AND ONE HALF SET OF HARNESS WHICH WERE LOST WHILE IN THE POSSESSION OF THE FOREST SERVICE UNDER A CONTRACT OF HIRE. FOR THE REASON THAT THE HORSE AND HARNESS WERE NOT LOST OR DESTROYED "WHILE BEING USED FOR NECESSARY FIRE FIGHTING. T. BEACH FOR $56.50 REPRESENTING THE APPRAISED VALUE OF A HORSE AND ONE-HALF SET OF HARNESS WHICH WERE LOST WHILE IN THE POSSESSION OF THE FOREST SERVICE UNDER CONTRACT OF HIRE DATED JULY 1.

A-25662, FEBRUARY 21, 1929, 8 COMP. GEN. 460

PROPERTY, PRIVATE - LOST OR DESTROYED IN THE FOREST SERVICE UNDER A CONTRACT PROVIDING FOR REIMBURSEMENT FOR LOSS OF ANIMALS INJURED OR KILLED DURING THE PERIOD OF HIRE TO THE FOREST SERVICE, BUT NOT SPECIFICALLY PROVIDING FOR THEIR LOSS DUE TO STRAYING OR THEFT, OR FOR THE LOSS OF EQUIPMENT DUE TO FIRE, THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT, IN THE ABSENCE OF A SHOWING OF FAULT OR NEGLIGENCE, TO REIMBURSE THE OWNER FOR THE LOSS OF A HORSE THAT STRAYED AWAY OR FOR THE LOSS OF ONE-HALF SET OF HARNESS THAT WAS DESTROYED BY FIRE WHILE IN STORAGE. REIMBURSEMENT IS NOT AUTHORIZED, UNDER THE PROVISIONS OF THE ACT OF MARCH 4, 1913, 37 STAT. 843, OF THE APPRAISED VALUE OF A HORSE AND ONE HALF SET OF HARNESS WHICH WERE LOST WHILE IN THE POSSESSION OF THE FOREST SERVICE UNDER A CONTRACT OF HIRE, FOR THE REASON THAT THE HORSE AND HARNESS WERE NOT LOST OR DESTROYED "WHILE BEING USED FOR NECESSARY FIRE FIGHTING, TRAIL, OR OFFICIAL BUSINESS," AS SPECIFIED BY THE STATUTE.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 21, 1929:

REVIEW HAS BEEN REQUESTED OF SETTLEMENT NO. 0219932, DATED MAY 26, 1928, DISALLOWING THE CLAIM OF C. T. BEACH FOR $56.50 REPRESENTING THE APPRAISED VALUE OF A HORSE AND ONE-HALF SET OF HARNESS WHICH WERE LOST WHILE IN THE POSSESSION OF THE FOREST SERVICE UNDER CONTRACT OF HIRE DATED JULY 1, 1927.

THE FACTS WITH RESPECT TO THE LOSS OF THE HORSE, AS REPORTED BY THE SENIOR FOREST RANGER ON NOVEMBER 8, 1927, APPEAR TO BE AS FOLLOWS:

THE HORSE WAS LED FROM FLAT CREEK RANGER STATION OVER THE BROOK TRAIL TO BOX CANYON RANGER STATION (A DISTANCE OF 32 MILES) BY PACKER, DELBERT BROWN, IN COMPANY WITH ELMER B. WILLIAMS, PATROLMAN, AND FRANK CRABTREE, FIREMAN, WHO WERE TO BE ENGAGED PRIMARILY ON FIRE-PROTECTION WORK. THEY WERE TO USE TIME NOT NEEDED ON ACTUAL PROTECTION WORK IN REBUILDING THE FENCE SURROUNDING BOX CANYON RANGER STATION.

IT WAS IMPOSSIBLE TO USE THIS HORSE CONTINUOUSLY. TO RETURN THE HORSE TO ITS OWNER (32 MILES) BETWEEN PERIODS OF NONUSE COULD NOT BE DONE. IT WAS HIRED ON A MONTHLY BASIS; THE GOVERNMENT HAD THE PRIVILEGE OF USING IT EVERY DAY OR COULD HAVE RETURNED IT AFTER ANY LENGTH OF PERIOD OF HIRE.

THE FENCE SURROUNDING THE BOX CANYON RANGER STATION WAS BROKEN DOWN BY HEAVY SNOW. MANY OF THE WIRES WERE BROKEN BETWEEN POSTS, AND POSTS SETTLED SO THEY PROJECTED TEN INCHES TO THREE FEET ABOVE THE EARTH. THE ONLY WAY THE HORSE COULD BE CONFINED WAS TO BLOCK PASSAGES OF INGRESS AND EGRESS TO BOX CANYON RANGER STATION. THIS WAS DONE ACROSS BROOK CABIN TRAIL OVER WHICH THE HORSE ENTERED. THE SUPPOSITION WAS THAT SINCE THE HORSE HAD NEVER BEEN OVER THE TRAIL LEADING FROM BOX CANYON TO TAYLOR BURN, IT WOULD NOT ATTEMPT TO LEAVE BY THIS ROUTE. NO EFFORT WAS MADE TO BLOCK THIS TRAIL. THIS WAS THE TRAIL OVER WHICH THE HORSE PASSED WHEN IT STRAYED.

THE HORSE WOULD HAVE BEEN USED JULY 4TH HAD IT NOT BEEN A HOLIDAY WHEN NO WORK WAS PERFORMED BY EMPLOYEES OF THE SERVICE, AND WOULD HAVE BEEN USED JULY 5TH HAD IT NOT STRAYED. THE OFFICIAL USE OF THE HORSE ON JULY 3 WAS THE CAUSE OF THE HORSE BEING IN THIS LOCALITY ON JULY 4TH AND STRAYING ON THE NIGHT OF JULY 4TH.

DUE TO AN OVERSIGHT IN NOT PLACING AN OBSTRUCTION ACROSS THE TRAIL LEADING FROM BOX CANYON TO TAYLOR BURN, THE HORSE STRAYED. HOWEVER, IN THE HILLS, IT IS THE CUSTOM TO BLOCK A TRAIL ONLY IN THE DIRECTION FROM WHICH THE HORSE CAME, AND THAT USUALLY IS SUFFICIENT. CONSEQUENTLY, IT IS FELT NO BLAME SHOULD BE ATTACHED TO THE EMPLOYEES, AS THEY OBSERVED ALL USUAL PRECAUTIONS FOLLOWED BY ANYONE.

ON NOVEMBER 18, 1927, THE SENIOR FOREST RANGER REPORTED WITH RESPECT TO THE LOSS OF THE HARNESS AS FOLLOWS:

THE HARNESS WAS HIRED BECAUSE, AT THE TIME OF HIRE (JULY 1, 1927) THERE WAS NO GOVERNMENT HARNESS AVAILABLE. IT WOULD HAVE BEEN NECESSARY TO HAVE BOUGHT A COLLAR TO FIT THE HORSE; HENCE, THE HARNESS AND COLLAR WERE HIRED. THE HARNESS WAS USED JULY 2ND AND 3RD ON C. T. BEACH'S HORSE WHILE HAULING FENCE POSTS AND MATERIAL TO BE USED IN THE CONSTRUCTION OF A FENCE ENCLOSING BOX CANYON RANGER STATION.

BOX CANYON IS LOCATED 32 MILES FROM FLAT CREEK RANGER STATION. TRIPS BETWEEN THE TWO POINTS ARE INFREQUENT. AFTER THE HORSE WAS LOST, DURING THE EVENING OF JULY 4, 1927, WE HAD NO FURTHER USE FOR THE HARNESS. THE FIRST TRIP THE PACKER MADE, WHICH WAS AUGUST 15TH, AFTER THE HORSE WAS LOST, HE BROUGHT THE HARNESS TO FLAT CREEK RANGER STATION AUGUST 16, AND STORED IT IN THE BARN, ARRIVING AT FLAT CREEK AT 6 P.M.

AS STATED ABOVE, BOX CANYON IS 32 MILES FROM FLAT CREEK, AND BETWEEN JULY 5 AND AUGUST 15, NO ONE MADE A TRIP IN THERE, AND THERE WAS NO OPPORTUNITY TO RETURN THE HARNESS TO FLAT CREEK PRIOR TO THAT TIME.

BOX CANYON IS OCCUPIED DURING THE FIRE SEASON BY A FIREMAN AND PATROLMAN, WHO WERE TO REBUILD THE FENCE AS THEY HAD OPPORTUNITY. IT IS A TWO-DAY TRIP FROM BOX CANYON TO OAKRIDGE AND RETURN, AND THESE MEN WOULD HAVE HAD NO OPPORTUNITY TO GET AWAY FOR THAT LENGTH OF TIME TO RETURN THE HARNESS AFTER THE HORSE WAS LOST; NEITHER WOULD THEY HAVE HAD ANY WAY OF RETURNING IT EXCEPT BY PACKING IT ON THEIR BACKS 32 MILES.

THE HARNESS WOULD HAVE BEEN RETURNED TO THE OWNER AUGUST 17TH, HAD IT NOT BEEN DESTROYED BY FIRE ON THE NIGHT OF AUGUST 16TH.

THE CONTRACT OF HIRE DATED JULY 1, 1927, PROVIDES:

THE FOREGOING ANIMALS ARE FURNISHED BY THE UNDERSIGNED IN ACCORDANCE WITH REGULATION A-4 OF THE NATIONAL FOREST MANUAL.

LIABILITY FOR ANIMALS INJURED OR KILLED DURING THE PERIOD OF HIRE IS ASSUMED BY THE FOREST SERVICE. THE FOREST SERVICE WILL NOT COMPENSATE THE OWNER FOR DEATH OCCURRING THROUGH DISEASE OR OLD AGE, OR INJURY OR DEATH DUE TO NEGLIGENCE BY HIM.

REIMBURSEMENT FOR ANIMALS INJURED OR KILLED WILL BE BASED UPON CONSIDERATION OF THE APPRAISED VALUE AND ANY OTHER FACTORS WHICH MAY BE GERMANE.

DECISIONS AS TO REIMBURSEMENT UNDER THIS CONTRACT AND THE AMOUNT THEREOF WILL BE MADE BY THE DISTRICT FORESTER.

ANIMALS FURNISHED UNDER THIS CONTRACT MUST BE SERVICEABLE AND IN HEALTHY CONDITION.

THIS CONTRACT MAY BE TERMINATED AT ANY TIME BY THE FORESTER OR HIS AUTHORIZED REPRESENTATIVE.

THE ACT OF MARCH 4, 1913, 37 STAT. 843, PROVIDES:

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.

THE INVOLVED CONTRACT PROVIDES FOR REIMBURSEMENT OF ANIMALS INJURED OR KILLED DURING THE PERIOD OF HIRE BUT DOES NOT SPECIFICALLY PROVIDE FOR LOSS OF ANIMALS DUE TO STRAYING OR THEFT, OR FOR LOSS OF EQUIPMENT DUE TO FIRE WHILE IN STORAGE. FURTHERMORE, THE HORSE AND HARNESS WERE HIRED FOR A VALUABLE CONSIDERATION, THUS CREATING A BAILMENT FOR MUTUAL BENEFIT, AND THE LOSS WAS WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE GOVERNMENT; THAT IS TO SAY THE GOVERNMENT EXERCISED THE SAME CARE AND DILIGENCE IN THE PROTECTION OF THE PROPERTY THAT A REASONABLY PRUDENT PERSON WOULD EXERCISE IN THE PROTECTION OF HIS OWN UNDER LIKE CIRCUMSTANCES. THEREFORE, CONSIDERING THE MATTER ON THE BASIS OF THE CONTRACT OF HIRE, THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT TO REIMBURSE THE OWNER FOR THE LOSS.

REIMBURSEMENT IS NOT AUTHORIZED UNDER THE PROVISION IN THE ACT OF MARCH 4, 1913, SUPRA, FOR THE REASON THAT THE HORSE AND HARNESS WERE NOT LOST OR DESTROYED "WHILE BEING USED FOR NECESSARY FIRE FIGHTING, TRAIL, OR OFFICIAL BUSINESS" AS SPECIFIED BY THE STATUTE. 5 COMP. GEN. 326; 7 ID. 304. THEREFORE, THERE IS NO AUTHORITY OF LAW FOR REIMBURSEMENT OF THE VALUE OF EITHER THE HORSE OR THE HARNESS.