A-41749, JUNE 30, 1932, 11 COMP. GEN. 502

A-41749: Jun 30, 1932

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHILE ENGAGED IN WHAT WAS ADMINISTRATIVELY CERTIFIED TO BE AN ASSIGNMENT TO OFFICIAL DUTY. IS A CLAIM FOR DAMAGES RESULTING FROM THE NEGLIGENCE OF AN OFFICER OR EMPLOYEE OF THE UNITED STATES AND IS FOR ADMINISTRATIVE CONSIDERATION WHETHER TO REPORT THE SAME TO CONGRESS UNDER THE ACT OF DECEMBER 28. 1932: THERE IS BEFORE THIS OFFICE FOR PREAUDIT VOUCHER NO. 2523. WAS DRIVING MARINE CORPS CAR BUICK SEDAN NO. 272. THAT CORPORAL LYNCH WAS UNDER ORDERS TO BE AT A CERTAIN DESIGNATED PLACE BY A SPECIFIED TIME AND AFTER THAT PERIOD HAD ELAPSED. WAS PROCEEDING IN A DIRECTION AWAY FROM HIS DESIGNATED DESTINATION OFF OF THE MOST DIRECT ROUTE THERETO AND ALREADY LATE IN CARRYING OUT HIS ORDERS WHILE APPROXIMATELY 7 MILES FROM HIS DESTINATION.

A-41749, JUNE 30, 1932, 11 COMP. GEN. 502

PRIVATE PROPERTY DAMAGED BY NEGLIGENCE OF ENLISTED MAN OF MARINE CORPS A CLAIM FOR REIMBURSEMENT FOR DAMAGES TO PRIVATE PROPERTY CAUSED BY A GOVERNMENT-OWNED AUTOMOBILE DRIVEN BY AN ENLISTED MAN OF THE MARINE CORPS WHILE INTOXICATED, BUT WHILE ENGAGED IN WHAT WAS ADMINISTRATIVELY CERTIFIED TO BE AN ASSIGNMENT TO OFFICIAL DUTY, IS A CLAIM FOR DAMAGES RESULTING FROM THE NEGLIGENCE OF AN OFFICER OR EMPLOYEE OF THE UNITED STATES AND IS FOR ADMINISTRATIVE CONSIDERATION WHETHER TO REPORT THE SAME TO CONGRESS UNDER THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066. IT MAY NOT BE PAID UNDER THE ACT OF JULY 11, 1919, 41 STAT. 132.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JUNE 30, 1932:

THERE IS BEFORE THIS OFFICE FOR PREAUDIT VOUCHER NO. 2523, ORIGINALLY SUBMITTED BY THE BUREAU OF SUPPLIES AND ACCOUNTS ON PREAUDIT SCHEDULE AA- 13041, MARCH 28, 1932, IN FAVOR OF BONLEY CAFETERIA (INC.), FOR $202 AS REIMBURSEMENT OF DAMAGES TO PROPERTY FOR WHICH AN ENLISTED MAN OF THE UNITED STATES MARINE CORPS HAS BEEN HELD RESPONSIBLE. FROM A REPORT BY THE JUDGE ADVOCATE GENERAL ATTACHED TO THE VOUCHER, IT APPEARS THAT ON JANUARY 1, 1932, PAUL J. LYNCH, CORPORAL, UNITED STATES MARINE CORPS, WHILE ACTING AS CHAUFFEUR FOR THE COMMANDING OFFICER OF THE MARINE BARRACKS, NAVY YARD, NEW YORK, WAS DRIVING MARINE CORPS CAR BUICK SEDAN NO. 272; THAT CORPORAL LYNCH WAS UNDER ORDERS TO BE AT A CERTAIN DESIGNATED PLACE BY A SPECIFIED TIME AND AFTER THAT PERIOD HAD ELAPSED, WAS PROCEEDING IN A DIRECTION AWAY FROM HIS DESIGNATED DESTINATION OFF OF THE MOST DIRECT ROUTE THERETO AND ALREADY LATE IN CARRYING OUT HIS ORDERS WHILE APPROXIMATELY 7 MILES FROM HIS DESTINATION; THAT HE DROVE THE CAR RECKLESSLY AND WHILE BELIEVED TO BE UNDER THE INFLUENCE OF LIQUOR DRIVING IT INTO A RESTAURANT AT THE SOUTHWEST CORNER OF WASHINGTON AND JOHNSTON STREETS, BROOKLYN, N.Y., THE RESTAURANT THEN BEING OPERATED BY THE BONLEY CAFETERIA (INC.). A NAVAL BOARD OF INVESTIGATION EXPRESSED THE BELIEF THAT LYNCH'S CONDITION FROM INDULGENCE IN INTOXICATING LIQUOR WAS SUCH THAT HE WAS INCAPABLE OF PROPER OPERATION OF THE VEHICLE, AND THAT THE GOVERNMENT WAS PROBABLY LIABLE FOR ALL DAMAGES RESULTING FROM THE ACCIDENT.

THE VOUCHER WAS RETURNED WITH A PREAUDIT DIFFERENCE STATEMENT REQUESTING ADDITIONAL INFORMATION AND WAS RESUBMITTED MAY 16, 1932, WITH THE FOLLOWING INFORMATION:

1. THE NAME OF THE COMMANDING OFFICER OF THE MARINE BARRACKS, NAVY YARD, NEW YORK, FOR WHOM CORPORAL LYNCH ACTED AS CHAUFFEUR IS COLONEL GERARD M. KINCADE, U.S. MARINE CORPS.

2. THE DESIGNATED PLACE TO WHICH CORPORAL LYNCH WAS ORDERED TO GO WAS E. 82ND STREET, NEW YORK CITY, AND LEXINGTON AVENUE.

3. THE SPECIFIED TIME HE WAS REQUIRED TO BE THERE WAS 1:30 A.M., JANUARY 1, 1932.

4. THE ASSIGNMENT WAS ON OFFICIAL DUTY.

IT IS UNDERSTOOD FROM THE HOUR AND THE PLACE THAT THE DUTY ORDERS OF THE CHAUFFEUR RELATED IN FACT TO THE PERSONAL ACCOMMODATION OF THE COMMANDING OFFICER, AND AS TO HIM IT WAS NOT OFFICIAL DUTY, IRRESPECTIVE OF WHETHER THE ASSIGNMENT OF THE CHAUFFEUR WAS ON "OFFICIAL DUTY" AS STATED IN PARAGRAPH 4 ABOVE, IN THE SENSE THAT THE ORDERS TO THE CHAUFFEUR WERE THOSE OF A MILITARY SUPERIOR WHICH THE CHAUFFEUR COULD QUESTION ONLY AT HIS PERIL, EVEN THOUGH THE DUTY WAS OF A PRIVATE CHARACTER.

THE ACT OF JULY 11, 1919, 41 STAT. 132, 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.

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.

IN 10 COMP. GEN. 229, IT WAS HELD THAT THE ACT OF JULY 11, 1919, SUPRA, AUTHORIZED THE SECRETARY OF THE NAVY TO MAKE SETTLEMENT WITH THE OWNER OF THE DAMAGED PROPERTY WHEN THE LOSS OR DAMAGE WAS OCCASIONED BY MEN IN THE NAVAL SERVICE NOT ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT. THE ENLISTED MEN CAUSING THE DAMAGE IN THAT CASE WERE ABSENT FROM THEIR STATION 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. THE PRESENT CASE IS NOT FOR SETTLEMENT UNDER THE ACT OF JULY 11, 1919, CITED, BUT IT IS FOR ADMINISTRATIVE CONSIDERATION WHETHER TO REPORT THE CLAIM TO THE CONGRESS UNDER THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066.

PAYMENT UPON THE PRESENT VOUCHER IS NOT AUTHORIZED AND IT WILL ACCORDINGLY BE RETAINED IN THE FILES OF THIS OFFICE.