A-34141, NOVEMBER 19, 1930, 10 COMP. GEN. 229

A-34141: Nov 19, 1930

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PRIVATE PROPERTY FOR WHICH MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE FOUND TO BE RESPONSIBLE. AUTHORIZES THE SECRETARY OF THE NAVY TO MAKE SETTLEMENT WITH THE OWNER OF SUCH PROPERTY WHERE THE LOSS OR DAMAGE WAS OCCASIONED BY MEN IN THE NAVAL SERVICE OR THE MARINE CORPS NOT ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT. THE MARINE CORPS CAR WAS OCCUPIED AT THE TIME OF THE COLLISION BY OGDEN R. BOTH OF THE MEN WERE ABSENT FROM THEIR STATIONS AND DUTIES WITHOUT PROPER AUTHORITY. WERE UNDER THE INFLUENCE OF INTOXICATING LIQUOR. PRIVATE STOOP WHILE SO ABSENT WAS A PRISONER-AT-LARGE AWAITING RESULTS OF A SUMMARY COURT- MARTIAL. THE CIRCUMSTANCES OF THE COLLISION WERE INVESTIGATED BY A BOARD OF INVESTIGATION.

A-34141, NOVEMBER 19, 1930, 10 COMP. GEN. 229

PROPERTY, PRIVATE - LOSS OR DAMAGE - NAVAL SERVICE - MARINE CORPS THE ACT OF JULY 11, 1919, 41 STAT. 132, PROVIDING FOR SETTLEMENT BY THE SECRETARY OF THE NAVY OF CLAIMS FOR DAMAGE TO, OR LOSS OF, PRIVATE PROPERTY FOR WHICH MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE FOUND TO BE RESPONSIBLE, WHEN NOT IN EXCESS OF $500, AUTHORIZES THE SECRETARY OF THE NAVY TO MAKE SETTLEMENT WITH THE OWNER OF SUCH PROPERTY WHERE THE LOSS OR DAMAGE WAS OCCASIONED BY MEN IN THE NAVAL SERVICE OR THE MARINE CORPS NOT ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, REGARDLESS OF THE ELEMENT OF PERSONAL RESPONSIBILITY OF SUCH MEN.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, NOVEMBER 19, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 7, 1930, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

ON DECEMBER 17, 1929, A COLLISION OCCURRED IN MANAGUA, NICARAGUA, BETWEEN MARINE CORPS CAR NO. 45 AND NASH CAR NO. 258, OWNED AND OPERATED BY CARLOS SANTA MARIA OF MANAGUA, NICARAGUA.

THE MARINE CORPS CAR WAS OCCUPIED AT THE TIME OF THE COLLISION BY OGDEN R. HOWELL AND MARVIN STOOP, PRIVATES, U.S. MARINE CORPS, WITHOUT PROPER AUTHORITY AND IN VIOLATION OF AN ORDER PROVIDING THAT CARS SHOULD "NOT BE USED WITHOUT THE AUTHORITY OF THE OFFICER OF THE DAY.' BOTH OF THE MEN WERE ABSENT FROM THEIR STATIONS AND DUTIES WITHOUT PROPER AUTHORITY, WERE UNDER THE INFLUENCE OF INTOXICATING LIQUOR, AND PRIVATE STOOP WHILE SO ABSENT WAS A PRISONER-AT-LARGE AWAITING RESULTS OF A SUMMARY COURT- MARTIAL.

THE CIRCUMSTANCES OF THE COLLISION WERE INVESTIGATED BY A BOARD OF INVESTIGATION, WHICH BOARD FOUND THAT THE MARINE CORPS CAR WAS BEING DRIVEN ON THE WRONG SIDE OF THE STREET AND OPERATED IN A CARELESS AND DANGEROUS MANNER; THAT NASH CAR NO. 258 WAS BEING DRIVEN BY THE OWNER ON THE PROPER SIDE OF THE STREET AND THAT HE DID EVERYTHING WITHIN REASON TO AVOID THE COLLISION.

THE MARINE CORPS CAR FURTHER CRASHED INTO A TELEGRAPH POLE BREAKING SEVERAL WIRES AND DAMAGING THE POLE TO SUCH AN EXTENT AS TO REQUIRE REPLACEMENT.

THE INVESTIGATING BOARD EXPRESSED THE OPINION "THAT THE DAMAGES SUSTAINED BY CARLOS SANTA MARIA, INCLUDING COST OF REPAIRS, LOSS OF SERVICES AND DEPRECIATION IN VALUE OF THE AUTOMOBILE DUE TO THE ACCIDENT AMOUNTS TO A SUM NOT LESS THAN $200.00," AND RECOMMENDED THAT HE BE REIMBURSED TO THE EXTENT OF NOT LESS THAN $200.00 AND ALSO THAT THE OWNERS OF THE TELEGRAPH POLE BE REIMBURSED FOR THE DAMAGES TO THE POLE.

THE OWNER OF THE CAR WAS INFORMED THAT ONLY THE ACTUAL COST OF REPAIRS WOULD BE CONSIDERED, AND HE SUBMITTED A RECEIPTED BILL IN THE AMOUNT OF $113.41 COVERING SUCH REPAIRS AND EXECUTED A RELEASE OF CLAIMS IN THAT AMOUNT.

THE CENTRAL AMERICA POWER CORPORATION, THE OWNER OF THE DAMAGED POLE, SUBMITTED A BILL OF $50.00 FOR THE VALUE OF THE POLE AND LIKEWISE EXECUTED A RELEASE IN SAID AMOUNT.

AS THE PRIVATES CAUSING THE DAMAGE WERE NOT AT THE TIME ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, A SETTLEMENT OF THE CLAIMS CAN NOT BE EFFECTED UNDER THE ACT OF DECEMBER 28, 1922 (42 STAT. 1066, TITLE 31, U.S.C., SECS. 215-217).

THE ONLY OTHER AUTHORITY UNDER WHICH THE SECRETARY OF THE NAVY MAY CONSIDER CLAIMS FOR DAMAGES OF THIS CHARACTER CAUSED BY MEN IN THE NAVAL SERVICE OR IN THE MARINE CORPS IS THAT FOUND IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1920, APPROVED JULY 11, 1919 (41 STAT. 132, TITLE 34, U.S.C., SEC. 600, WHICH PROVIDES---

"THAT THE SECRETARY OF THE NAVY IS AUTHORIZED TO CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND PAY THE AMOUNTS DUE IN ALL CLAIMS FOR DAMAGES (OTHER THAN SUCH AS ARE OCCASIONED BY VESSELS OF THE NAVY) TO AND LOSS OF PRIVATELY OWNED PROPERTY, OCCURRING SUBSEQUENT TO APRIL 6, 1917, WHERE THE AMOUNT OF THE CLAIM DOES NOT EXCEED $500, FOR WHICH DAMAGE OR LOSS MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE FOUND TO BE RESPONSIBLE, ALL PAYMENTS IN SETTLEMENT OF SAID CLAIMS TO BE MADE OUT OF THE APPROPRIATION "PAY, MISCELLANEOUS": PROVIDED FURTHER, THAT ALL CLAIMS ADJUSTED UNDER THIS AUTHORITY DURING ANY FISCAL YEAR SHALL BE REPORTED IN DETAIL TO THE CONGRESS BY THE SECRETARY OF THE NAVY.'

THE CURRENT NAVAL ACT FOR THE FISCAL YEAR 1931 CONTAINS AN APPROPRIATION UNDER THE TITLE "PAY, MISCELLANEOUS" FOR "PAYMENT OF CLAIMS FOR DAMAGES AS PROVIDED IN THE ACT MAKING APPROPRIATIONS FOR THE FISCAL YEAR 1920, APPROVED JULY 11, 1919, * * *.'

THE PROPERTY DAMAGED WAS OWNED BY A NATIVE OF NICARAGUA, A FOREIGN COUNTRY, AND BY A CORPORATION OF NICARAGUA, AND MEN IN THE MARINE CORPS HAVE BEEN FOUND TO BE RESPONSIBLE FOR SUCH DAMAGE. IN VIEW OF THE CIRCUMSTANCES EXISTING IN THIS CASE, YOUR DECISION IS REQUESTED AS TO WHETHER PAYMENT OF THE CLAIMS ABOVE MENTIONED MAY BE MADE FROM THE APPROPRIATION "PAY MISCELLANEOUS, 1931" UNDER THE AUTHORITY CONTAINED IN THE 1919 ACT.

THE LANGUAGE OF THE ACT OF JULY 11, 1919, 41 STAT. 132, QUOTED IN YOUR SUBMISSION, IS VERY SIMILAR TO THAT OF THE ACT OF JULY 1, 1918, 40 STAT. 705, PROVIDING FOR THE SETTLEMENT OF CLAIMS FOR LOSS OF OR DAMAGE TO PRIVATE PROPERTY OF INHABITANTS OF EUROPEAN COUNTRIES CAUSED BY MEN IN THE NAVAL SERVICE. SEE 26 COMP. DEC. 147. THE SAID ACT OF JULY 1, 1918, WAS HELD TO AUTHORIZE THE SECRETARY OF THE NAVY TO MAKE SETTLEMENT IN ALL CASES REGARDLESS OF THE ELEMENT OF PERSONAL RESPONSIBILITY WHERE THE LOSS OR DAMAGE WAS OCCASIONED BY MEN IN THE NAVAL SERVICE WHETHER IN THE PERFORMANCE OF DUTY OR OTHERWISE. 25 COMP. DEC. 896. SEE, ALSO, 27 COMP. DEC. 365 AT PAGE 367.

IN 4 COMP. GEN. 876, AT PAGE 879, IT WAS SAID:

THE ACT OF JULY 11, 1919, SPECIFIED THAT MEN IN THE NAVAL SERVICE MUST BE "RESPONSIBLE" FOR THE DAMAGE OR LOSS TO THE PRIVATE PROPERTY. THE ACT OF DECEMBER 28, 1922, SPECIFIED THAT THE DAMAGE OR LOSS MUST HAVE BEEN CAUSED BY THE "NEGLIGENCE" OF THE EMPLOYEE. THE EARLIER LAW WAS BROAD ENOUGH TO INCLUDE NEGLIGENCE CLAIMS BUT THE ENACTMENT OF THE SUBSEQUENT LAW, SPECIFICALLY APPLICABLE TO NEGLIGENCE CLAIMS, HAD THE EFFECT OF SUPERSEDING THE EARLIER LAW WITH RESPECT TO THAT CLASS OF CLAIMS. THAT IS TO SAY, WHERE THERE IS BOTH A GENERAL AND SPECIAL STATUTE COVERING DISPOSITION OF PRIVATE PROPERTY DAMAGE CLAIMS AGAINST THE UNITED STATES, THE SPECIAL STATUTE IS EXCLUSIVELY APPLICABLE TO THE CLASS OF CLAIMS COMING THEREUNDER. IF THE CLAIM IS ON ACCOUNT OF DAMAGES TO OR LOSS OF PRIVATELY OWNED PROPERTY CAUSED BY THE NEGLIGENCE OF AN ENLISTED MAN IN THE NAVY THERE IS NO AUTHORITY FOR ITS CONSIDERATION AND SETTLEMENT UNDER THE ACT OF JULY 11, 1919, AND PAYMENT IS NOT AUTHORIZED BY A DISBURSING OFFICER OF THE NAVY FROM THE ANNUAL APPROPRIATIONS PROVIDED FOR PAYMENT OF CLAIMS UNDER THAT STATUTE, BUT IS FOR CONSIDERATION, ADJUSTMENT, AND DETERMINATION UNDER THE ACT OF DECEMBER 28, 1922, AND FOR CERTIFICATION OF THE AMOUNT FOUND DUE TO CONGRESS FOR A SPECIFIC APPROPRIATION. THE ONLY CLAIMS NOW FOR SETTLEMENT AND PAYMENT BY THE NAVY DEPARTMENT UNDER THE ACT OF JULY 11, 1919, ARE THOSE PRIVATE PROPERTY DAMAGE CLAIMS NOT IN EXCESS OF $500 FOR WHICH MEN IN THE NAVAL SERVICE OR MARINE CORPS ARE DETERMINED TO BE RESPONSIBLE OTHER THAN THROUGH NEGLIGENCE IN THE SCOPE OF THEIR EMPLOYMENT.

THE CASE UNDER CONSIDERATION IN THAT DECISION INVOLVED A DAMAGE CLAIM ARISING FROM NEGLIGENCE OF AN ENLISTED MAN OF THE NAVY ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT, AND SAID DECISION IS NOT TO BE UNDERSTOOD AS HOLDING THAT THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, SUPERSEDES THE ACT OF JULY 11, 1919, EXCEPT AS TO CASES OF THE CLASS TO WHICH THE ACT OF DECEMBER 28, 1922, IS APPLICABLE, THAT IS TO SAY, CASES IN WHICH THE DAMAGE IS "CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT.' CLAIMS ARISING FROM NEGLIGENCE OF MEN IN THE NAVAL SERVICE OR MARINE CORPS NOT ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT STILL ARE FOR SETTLEMENT UNDER THE ACT OF JULY 11, 1919, AS THEY WERE PRIOR TO THE ENACTMENT OF THE ACT OF DECEMBER 28, 1922.

WHILE THE ENLISTED MEN INVOLVED IN THE INSTANT MATTER WERE ABSENT FROM THEIR STATIONS WITHOUT PROPER AUTHORITY, WERE UNDER THE INFLUENCE OF INTOXICATING LIQUOR, ONE OF THEM HAVING THE STATUS OF A PRISONER AT LARGE AWAITING THE RESULTS OF A COURT-MARTIAL, AND WERE OCCUPYING, AT THE TIME OF THE DAMAGE, A MARINE CORPS CAR WITHOUT PROPER AUTHORITY AND IN VIOLATION OF AN ORDER THAT CARS SHOULD "NOT BE USED WITHOUT THE AUTHORITY OF THE OFFICER OF THE DAY," SUCH CIRCUMSTANCES DID NO CHANGE THEIR STATUS AS ENLISTED MEN OF THE MARINE CORPS AS THEY CONTINUED IN THE SERVICE AND WERE SUBJECT TO DISCIPLINE. THE MEN HAVE BEEN FOUND "RESPONSIBLE" FOR THE DAMAGE. THE DAMAGE WAS, ACCORDINGLY, DAMAGE FOR WHICH MEN IN THE MARINE CORPS WERE RESPONSIBLE.

THE ACT OF JUNE 11, 1930, 46 STAT. 557, MAKING APPROPRIATIONS FOR THE NAVAL SERVICE FOR THE FISCAL YEAR 1931, UNDER THE TITLE "PAY, MISCELLANEOUS," PROVIDES FOR "PAYMENT OF CLAIMS FOR DAMAGES AS PROVIDED IN THE ACT MAKING APPROPRIATIONS FOR THE NAVAL SERVICE FOR THE FISCAL YEAR 1920, APPROVED JULY 11, 1919, * * *.'

ACCORDINGLY, THE CLAIMS HERE INVOLVED ARE FOR DETERMINATION AND PAYMENT UNDER THE CITED APPROPRIATION IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JULY 11, 1919.