A-33454, OCTOBER 16, 1930, 10 COMP. GEN. 175

A-33454: Oct 16, 1930

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IT MUST BE PRESUMED THAT THERE WAS NO INTENTION TO AFFORD ADDITIONAL RELIEF UNDER THE ACT OF APRIL 10. ALLEGED TO HAVE BEEN DUE TO INJURIES RECEIVED IN AN AUTOMOBILE COLLISION BETWEEN AN AUTOMOBILE OWNED BY PUSCARCZYK AND DRIVEN BY GERALT. WHICH CLAIM WAS CONSIDERED UNDER THE ACT OF DECEMBER 28. HE FOUND THAT THE DAMAGE WAS NOT DUE SOLELY TO THE NEGLIGENCE OF GOVERNMENT OFFICERS OR EMPLOYEES BUT THAT THERE WAS CONTRIBUTORY NEGLIGENCE ON THE PART OF THE DRIVER OF THE CLAIMANT'S CAR. WHICH FINDING WAS APPROVED BY G. THE TWO CLAIMANTS FURNISHED AFFIDAVITS TO THE EFFECT THAT THEIR CAR WAS GOING AT A SPEED OF FROM 15 TO 20 MILES PER HOUR ON THE EXTREME RIGHT-HAND SIDE OF THE ROAD. " THAT THE GOVERNMENT CAR WAS GOING "AT A TERRIFIC RATE OF SPEED.

A-33454, OCTOBER 16, 1930, 10 COMP. GEN. 175

DAMAGES - PERSONAL INJURIES THE CONGRESS HAVING PROVIDED BY THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, CERTAIN AFFIRMATIVE RELIEF IN THE CASE OF DAMAGES TO PRIVATE PROPERTY DUE TO NEGLIGENCE OF GOVERNMENT OFFICERS AND EMPLOYEES, IT MUST BE PRESUMED THAT THERE WAS NO INTENTION TO AFFORD ADDITIONAL RELIEF UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, ON ACCOUNT OF DAMAGES TO PERSONS RESULTING FROM SUCH CAUSES.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 16, 1930:

THERE HAS BEEN SUBMITTED FOR CONSIDERATION BY THIS OFFICE, UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, THE CLAIMS OF STANLEY GERALT AND MICHAEL PUSCARCZYK FOR REIMBURSEMENT OF AMOUNTS SPENT FOR MEDICAL TREATMENT AND FOR WAGES LOST, ALLEGED TO HAVE BEEN DUE TO INJURIES RECEIVED IN AN AUTOMOBILE COLLISION BETWEEN AN AUTOMOBILE OWNED BY PUSCARCZYK AND DRIVEN BY GERALT, AND AN AUTOMOBILE OF A PROHIBITION AGENT WHILE IN USE UPON OFFICIAL BUSINESS.

STANLEY GERALT CLAIMS $103, CONSISTING OF $13 MEDICAL TREATMENT AND $90 LOSS OF WAGES, AND MICHAEL PUSCARCZYK CLAIMS $11 MEDICAL TREATMENT AND SIX WEEKS' WAGES AT $8 PER DAY. MICHAEL PUSCARCZYK HAD PREVIOUSLY FILED IN THE TREASURY DEPARTMENT A CLAIM FOR $412.60 AS DAMAGES TO HIS AUTOMOBILE RESULTING FROM THE SAME COLLISION, WHICH CLAIM WAS CONSIDERED UNDER THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, BY THE ACTING DIRECTOR OF PROHIBITION, AFTER THE TRANSFER OF THE PROHIBITION BUREAU TO THE DEPARTMENT OF JUSTICE, AND UNDER DATE OF AUGUST 14, 1930, HE FOUND THAT THE DAMAGE WAS NOT DUE SOLELY TO THE NEGLIGENCE OF GOVERNMENT OFFICERS OR EMPLOYEES BUT THAT THERE WAS CONTRIBUTORY NEGLIGENCE ON THE PART OF THE DRIVER OF THE CLAIMANT'S CAR, AND THAT THE CLAIM SHOULD, ACCORDINGLY, BE REJECTED, WHICH FINDING WAS APPROVED BY G. A. YOUNGQUIST, ASSISTANT ATTORNEY GENERAL.

THE TWO CLAIMANTS FURNISHED AFFIDAVITS TO THE EFFECT THAT THEIR CAR WAS GOING AT A SPEED OF FROM 15 TO 20 MILES PER HOUR ON THE EXTREME RIGHT-HAND SIDE OF THE ROAD, GERALT STATING THAT "I DROVE OFF MY RIGHT HAND TRAVEL PORTION OF THE ROAD IN ORDER TO AVOID THE GOVERNMENT CAR, BUT COULD NOT AVOID IT; " THAT THE GOVERNMENT CAR WAS GOING "AT A TERRIFIC RATE OF SPEED, ZIGZAGGING ACROSS THE ROAD AND STRUCK HEAD ON; " THAT THE NIGHT WAS DARK, BUT TRAFFIC COULD BE EASILY OBSERVED WITH GOOD LIGHTS.

THE TWO PROHIBITION AGENTS TESTIFIED THAT THEY WERE GOING AT A CAUTIOUS RATE OF SPEED ON ACCOUNT OF POOR VISIBILITY DUE TO FOGGY WEATHER CONDITIONS; THAT THE GOVERNMENT CAR WAS ON THE EXTREME RIGHT SIDE OF THE ROAD AND, WHEN STRUCK, TURNED OVER ON ITS RIGHT SIDE; AND THAT THE OTHER CAR WAS WELL OUT IN THE MIDDLE OF THE ROAD. THE TWO STATE POLICE OFFICERS, WHO ARRIVED UPON THE SCENE SHORTLY AFTER THE ACCIDENT, STATED THAT THE ACCIDENT TOOK PLACE IN THE CENTER OF THE ROAD; THAT THE ROAD MARKINGS INDICATED THAT BOTH DRIVERS WERE TRAVELING TOO CLOSE TO THE CENTER OF THE ROAD; THAT THE WEATHER WAS FOGGY; AND THAT GERALT TOLD ONE OF THE OFFICERS THAT HE WAS BLINDED BY THE CAR LIGHTS COMING FROM THE OPPOSITE DIRECTION, WHICH CAUSED HIM TO MISJUDGE HIS POSITION ON THE ROAD.

AS THE MATTER NOW STANDS THE CLAIMANTS HAVE NOT AFFIRMATIVELY ESTABLISHED BY PROPER EVIDENCE THAT THE COLLISION WAS OTHER THAN AVOIDABLE ON THE PART OF THE DRIVER OF THE CLAIMANT'S CAR, OR THAT THE GOVERNMENT AGENTS WERE MORE AT FAULT THAN WAS THE DRIVER OF THE CLAIMANT'S CAR, NOR WHEREIN EQUITY WOULD BE DONE BY PAYMENT BY THE GOVERNMENT TO THE CLAIMANTS OF DAMAGES FOR PERSONAL INJURIES AS THE RESULT OF SUCH AN ACCIDENT. FURTHERMORE, EVEN IF IT COULD BE ESTABLISHED THAT THE DAMAGE WAS THE RESULT OF NEGLIGENCE ON THE PART OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, THE CLAIM WOULD NOT APPEAR TO BE COGNIZABLE UNDER THE ACT OF APRIL 10, 1928, BECAUSE THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, AUTHORIZES THE HEAD OF EACH DEPARTMENT---

TO CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE ANY CLAIM ACCRUING AFTER APRIL 6, 1917, ON ACCOUNT OF DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY WHERE THE AMOUNT OF THE CLAIM DOES NOT EXCEED $1,000, CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT. * * *

AND SECTION 3 OF THE ACT FURTHER PROVIDES "THAT ACCEPTANCE BY ANY CLAIMANT OF THE AMOUNT DETERMINED UNDER THE PROVISIONS OF THIS ACT SHALL BE DETERMINED TO BE IN FULL SETTLEMENT OF SUCH CLAIM AGAINST THE GOVERNMENT OF THE UNITED STATES.' IN THE ABSENCE OF A STATUTE PROVIDING SPECIFICALLY THEREFOR, THE UNITED STATES IS NOT LIABLE FOR INJURIES OR DAMAGES TO THE PERSON OR PROPERTY OF AN INDIVIDUAL CAUSED BY NEGLIGENCE OF ITS OFFICERS OR EMPLOYEES. THE ACT OF DECEMBER 28, 1922, SUPRA, PROVIDES FOR THE ADJUSTMENT OF CERTAIN CLAIMS FOR DAMAGES TO PRIVATE PROPERTY DUE TO SUCH NEGLIGENCE.

THE CONGRESS HAVING PROVIDED CERTAIN AFFIRMATIVE RELIEF IN THE CASE OF DAMAGES DUE TO NEGLIGENCE OF GOVERNMENT OFFICERS AND EMPLOYEES, IT MUST BE PRESUMED THAT THERE WAS NO INTENTION TO AFFORD ADDITIONAL RELIEF UNDER THE ACT OF APRIL 10, 1928, ON ACCOUNT OF DAMAGES RESULTING FROM SUCH CAUSES. A-32303, JULY 10, 1930.

ACCORDINGLY, THE REQUEST THAT THESE CLAIMS BE REPORTED TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, MUST BE AND IS DENIED.