A-37824, AUGUST 10, 1931, 11 COMP. GEN. 62

A-37824: Aug 10, 1931

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CLAIM FOR DAMAGE TO THE AIRPLANES NOT RESULTING FROM THE NEGLIGENCE OF OFFICERS OR EMPLOYEES OF THE UNITED STATES IS NOT PAYABLE UNDER THE APPROPRIATION FOR PAYMENT OF CLAIMS FOR DAMAGES INCIDENT TO THE TRAINING. FOR WHICH RENTAL OF $10 PER MONTH WAS PAID. IT IS APPARENTLY CONTENDED THAT THE DAMAGE RESULTED FROM TRAINING. REVOCABLE AT WILL BY THE SECRETARY OF WAR. A BOARD OF OFFICERS APPOINTED TO INVESTIGATE THE MATTER FOUND THAT A MASTER SERGEANT OF MARCH FIELD WAS SENT TO ROSS FIELD ON JULY 2. THIS MASTER SERGEANT AND MEN WERE WORKING INSIDE OF A BALLOON HANGAR REMOVING A WINCH FROM A TRUCK CHASSIS. ONE OF THESE TRUCKS WHICH HAD BEEN PARKED BEHIND ANOTHER STARTED ROLLING ACROSS THE HANGAR FLOOR AND THE REAR TRUCK PUSHED THE TRUCK IN FRONT AGAINST THE TACKLE ROPES WHICH WERE IN USE TO REMOVE WINCHES AND INTO AN AIRPLANE OF MR.

A-37824, AUGUST 10, 1931, 11 COMP. GEN. 62

PROPERTY, PRIVATE - DAMAGES - MILITARY RESERVATIONS WHERE A PERSON STORES UNDER A LICENSE AIRPLANES IN A PART OF A MILITARY HANGAR, CLAIM FOR DAMAGE TO THE AIRPLANES NOT RESULTING FROM THE NEGLIGENCE OF OFFICERS OR EMPLOYEES OF THE UNITED STATES IS NOT PAYABLE UNDER THE APPROPRIATION FOR PAYMENT OF CLAIMS FOR DAMAGES INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 10, 1931:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF D. E. MCDANELD FOR $250 AS DAMAGE ON OR ABOUT JULY 9, 1930, SUSTAINED BY AN AIRPLANE WHICH HE HAD STORED IN A GOVERNMENT HANGAR AT ROSS FIELD, ARCADIA, CALIF., UNDER A LEASE DATED FEBRUARY 6, 1928, AND FOR WHICH RENTAL OF $10 PER MONTH WAS PAID. IT IS APPARENTLY CONTENDED THAT THE DAMAGE RESULTED FROM TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY.

UNDER THE TERMS OF THE LEASE OF FEBRUARY 16, 1928, THE UNITED STATES GRANTED D. C. MCDANELD (INC.) A LICENSE, REVOCABLE AT WILL BY THE SECRETARY OF WAR, TO STORE THREE AIRPLANES IN SUCH PART OF THE NORTH HANGAR AND TO USE SUCH PORTION OF THE LANDING AND TAKE-OFF RUNWAY LOCATED ON THE ROSS FIELD MILITARY RESERVATION AS MIGHT BE DESIGNATED BY THE COMMANDING OFFICER OF SAID POST, SUBJECT TO THE CONDITIONS, AMONG OTHERS, THAT THERE SHOULD BE PAID THE SUM OF $10 PER MONTH FOR THE USE OF A PART OF THE HANGAR AND THE RUNWAY FIELD, AND:

THAT THE UNITED STATES SHALL NOT BE RESPONSIBLE FOR ANY INJURIES TO PERSONS OR DAMAGES TO OR LOSS OF PROPERTY ARISING OUT OF THE USE OF THE PREMISES BY THE LICENSEE, AND THE LICENSEE SHALL HOLD THE GOVERNMENT HARMLESS FROM ANY AND ALL SUCH CLAIMS.

A BOARD OF OFFICERS APPOINTED TO INVESTIGATE THE MATTER FOUND THAT A MASTER SERGEANT OF MARCH FIELD WAS SENT TO ROSS FIELD ON JULY 2, 1930, IN CHARGE OF A DETAIL OF NINE MEN FOR THE PURPOSE OF DISMANTLING BALLOON WINCHES FROM TRUCKS AND TO PLACE THE WINCHES IN STORAGE. THIS MASTER SERGEANT AND MEN WERE WORKING INSIDE OF A BALLOON HANGAR REMOVING A WINCH FROM A TRUCK CHASSIS, AND AT THE TIME SEVERAL WINCHES HAD BEEN REMOVED WITH THE TRUCKS PARKED ON THE SOUTH SIDE OF THE HANGAR. ONE OF THESE TRUCKS WHICH HAD BEEN PARKED BEHIND ANOTHER STARTED ROLLING ACROSS THE HANGAR FLOOR AND THE REAR TRUCK PUSHED THE TRUCK IN FRONT AGAINST THE TACKLE ROPES WHICH WERE IN USE TO REMOVE WINCHES AND INTO AN AIRPLANE OF MR. MCDANELD STORED IN THE HANGAR, DAMAGING THE PLANE AND HITTING THE CORNER OF A PARTITIONIN THE HANGAR WHICH STOPPED THE TRUCKS. THERE WAS NO ONE IN THE DRIVER'S SEAT OF EITHER TRUCK AT ANY TIME WHILE THE TRUCKS WERE RUNNING ACROSS THE HANGAR. IT DOES NOT SATISFACTORILY APPEAR WHAT STARTED THE ENGINE OF THE PARKED TRUCK, THOUGH IT HAS BEEN SUGGESTED THAT IN SOME MANNER THE IMPULSE MAGNETO STARTED THE ENGINE AND THE TRUCK TO MOVING, WITH A POSSIBILITY THAT WHEN THE TRUCK WAS PARKED IT WAS LEFT IN GEAR.

THE WINGS OF THE AIRPLANE WERE DAMAGED, AND MR. MCDANELD AGREED AUGUST 5, 1930, TO ACCEPT $250 AS SETTLEMENT IN FULL FOR ALL OF THE DAMAGE, AND, APPARENTLY, IT IS PROPOSED TO PAY THE AMOUNT UNDER THE APPROPRIATION CONTAINED FOR A NUMBER OF YEARS IN THE ANNUAL APPROPRIATION ACTS FOR THE WAR DEPARTMENT, AS FOLLOWS:

FOR PAYMENT OF CLAIMS NOT TO EXCEED $500 IN AMOUNT FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY THAT HAVE ACCRUED, OR MAY HEREAFTER ACCRUE, FROM TIME TO TIME, * * *: PROVIDED, THAT SETTLEMENT OF SUCH CLAIM SHALL BE MADE BY THE GENERAL ACCOUNTING OFFICE UPON THE APPROVAL AND RECOMMENDATION OF THE SECRETARY OF WAR, WHERE THE AMOUNT OF THE DAMAGES HAS BEEN ASCERTAINED BY THE WAR DEPARTMENT AND PAYMENT THEREOF WILL BE ACCEPTED BY THE OWNERS OF THE PROPERTY IN FULL SATISFACTION OF SUCH DAMAGES.

THE BOARD OF OFFICERS FOUND THAT THE DAMAGE WAS NOT DUE WHOLLY OR IN PART TO THE FAULT OR NEGLIGENCE OF OFFICERS OR EMPLOYEES OF THE GOVERNMENT, WHICH APPARENTLY PRECLUDES ANY RELIEF UNDER THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, WHICH, UNDER CERTAIN CIRCUMSTANCES, AUTHORIZES PAYMENT OF CLAIMS RESULTING FROM NEGLIGENT ACTS OF OFFICERS OR EMPLOYEES OF THE GOVERNMENT. HOWEVER, THE FACT THAT THE CLAIM MAY NOT BE FOR CONSIDERATION UNDER THE ACT OF DECEMBER 28, 1922, AFFORDS NO AUTHORITY FOR CONSIDERING THE CLAIM UNDER THE ABOVE-QUOTED EXTRACT FROM THE CURRENT ARMY APPROPRIATION ACT UNLESS THE CLAIM OTHERWISE COMES WITHIN THE TERMS OF SAID PROVISION.

WHEN THE LICENSE OR LEASE WAS ENTERED INTO, IT WAS KNOWN BY ALL CONCERNED THAT A PART, AT LEAST, OF THE HANGAR AND AIRPLANE FIELD WOULD CONTINUE TO BE USED BY THE MILITARY ACTIVITIES OF THE UNITED STATES, AND IN VIEW OF THE LIMITATIONS ON THE USE OF APPROPRIATIONS TO PAY DAMAGE CLAIMS, THERE WAS NO STIPULATION ATTEMPTED IN THE LICENSE TO MAKE THE UNITED STATES RESPONSIBLE IN DAMAGES TO THE AIRPLANES STORED UNDER THE LICENSE AGREEMENT WHEN SUCH DAMAGE RESULTED FROM ACCIDENTS, AS IN THE PRESENT CASE. THERE IS A PRINCIPLE OF LAW KNOWN AS "ASSUMPTION OF RISK," AND IT WAS STATED IN SCHUPENIES V. OREGON SHORT LINE RAILWAY CO., 225 PAC. 501, THAT THE DOCTRINE OF ASSUMPTION OF RISK WAS PREDICATED UPON A CONTRACT, EXPRESS OR IMPLIED, AND FOUNDED UPON THE KNOWLEDGE OF THE INJURED PARTY EITHER ACTUAL OR CONSTRUCTIVE, AS TO THE HAZARDS TO BE ENCOUNTERED AND HIS CONSENT TO TAKE THE CHANCE OF DANGER. IT WAS STATED IN HUX V. REFLECTOR CO., 91 S.E. 591, THAT THE PRINCIPLE OF ASSUMPTION OF RISK INCLUDES THE ASSUMPTION OF THE RISK OF AN EMPLOYMENT PROPERLY MANAGED AND WITH MACHINERY IN GOOD CONDITION, AND IN ALKO-NAK COAL CO. V. BARTON, 212 PAC. 591, IT WAS SAID THAT ASSUMPTION OF RISK IS BASED UPON THE INTELLIGENT ACQUIESCENCE IN A KNOWN DANGER AND THE APPRECIATION OF SUCH RISK USUALLY INCIDENT TO THE EMPLOYMENT. IT WAS SAID IN SCHUH V. R. H. HERRON CO., 169 PAC. 682, THAT THE DOCTRINE OF ASSUMPTION OF RISK MEANS THAT THE LAW IMPLIES, AS A PART OF THE CONTRACT, THAT THE SERVANT AGREES TO AND ASSUMES ALL THE ORDINARY RISKS OF PERSONS INJURED INCIDENT TO THE BUSINESS AND NOT CAUSED BY THE DIRECT NEGLIGENCE OF HIS EMPLOYER.

THIS DOCTRINE OF ASSUMPTION OF RISK HAS WIDE APPLICATION IN PERSONAL EMPLOYMENT, BUT IT WOULD SEEM TO BE EQUALLY APPLICABLE TO THE SITUATION HERE PRESENTED WHERE AN INDIVIDUAL LEASES FROM THE GOVERNMENT SPACE ON A MILITARY RESERVATION FOR THE STORAGE OF AIRPLANES AND WHEN IT IS KNOWN THAT A CONSIDERABLE PART OF THE SPACE WOULD CONTINUE TO BE USED BY THE MILITARY AUTHORITIES FOR MILITARY PURPOSES. UNDER SUCH CIRCUMSTANCES, THE LICENSEE MUST BE HELD TO HAVE VOLUNTARILY ASSUMED SUCH RISKS AS ARE INCIDENT TO THE CONTINUED USE BY THE MILITARY AUTHORITIES OF A PART OF THE RENTED SPACE, ESPECIALLY WHERE THERE IS NO NEGLIGENCE, AS WAS FOUND BY THE BOARD OF OFFICERS TO BE LACKING IN THIS CASE.

THE UNIFORM RULING WITH RESPECT TO CLAIMS FOR DAMAGES UNDER THE PROVISION HERE IN QUESTION HAS BEEN THAT IT RELATES ONLY TO PROPERTY OF PERSONS NOT CONNECTED WITH THE WAR DEPARTMENT AND WITH WHICH THE ARMY ACTIVITIES WOULD COME IN CONTACT ONLY EXTERNALLY. 6 COMP. GEN. 52; 7 ID. 236; ID. 480. THE PRESENT CASE THE CLAIMANT, VOLUNTARILY AND UNDER A CONTRACT, HAD PLACED HIS PROPERTY ON THE MILITARY RESERVATION WHERE IT NECESSARILY CAME IN CONTACT WITH THE MILITARY ACTIVITIES; THE SITUATION IN THIS RESPECT BEING NOT ESSENTIALLY DIFFERENT FROM ONE WHERE THE PRIVATE PROPERTY OF A CIVILIAN IS ON A MILITARY RESERVATION OR COMES IN CONTACT WITH MILITARY ACTIVITIES AS A RESULT OF HIS EMPLOYMENT BY THE WAR DEPARTMENT OR THE ARMY. SEE IN THIS CONNECTION DECISION OF APRIL 4, 1928, A-20724, SUSTAINING DISALLOWANCE OF CLAIM OF GEORGE E. VAN TRIES, A CIVILIAN EMPLOYEE OF THE ARMY, FOR DAMAGE TO PERSONAL EFFECTS IN A LEASED STRUCTURE NEAR AN ARMY CAMP.

AS THE DAMAGE IN THIS CASE WOULD NOT HAVE OCCURRED IF THE CLAIMANT HAD NOT VOLUNTARILY ENTERED INTO A CONTRACT PLACING HIS PROPERTY ON THE RESERVATION, THE CLAIM FOR $250 ON ACCOUNT OF DAMAGE TO THE AIRPLANE MUST BE, AND IS, DISALLOWED.