A-63804, JANUARY 28, 1936, 15 COMP. GEN. 671

A-63804: Jan 28, 1936

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LEASES - DAMAGES BY FIRE OF UNKNOWN ORIGIN - LIABILITY OF THE UNITED STATES THE UNITED STATES IS NOT LIABLE FOR THE COST OF REPAIRS MADE BY A LESSOR TO A BUILDING DAMAGED BY EXPLOSION AND FIRE WHILE BEING USED BY THE GOVERNMENT FOR PURPOSES AUTHORIZED BY THE LEASE WHERE THE CAUSE OF THE DAMAGE IS UNKNOWN AND CANNOT BE DETERMINED. PARTICULARLY WHERE THE LEASE PROVIDES THAT NO RENTAL SHALL BE PAID IN ANY CASE OF DAMAGE BY FIRE OR OTHERWISE TO SUCH AN EXTENT AS TO RENDER THE BUILDING UNFIT FOR THE USE INTENDED UNTIL THE BUILDING SHALL HAVE BEEN REPAIRED. 1936: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 16. WERE RECENTLY DAMAGED BY THE EXPLOSION OF AN OVEN OWNED AND OPERATED BY THE GOVERNMENT IN THESE LEASED PREMISES.

A-63804, JANUARY 28, 1936, 15 COMP. GEN. 671

LEASES - DAMAGES BY FIRE OF UNKNOWN ORIGIN - LIABILITY OF THE UNITED STATES THE UNITED STATES IS NOT LIABLE FOR THE COST OF REPAIRS MADE BY A LESSOR TO A BUILDING DAMAGED BY EXPLOSION AND FIRE WHILE BEING USED BY THE GOVERNMENT FOR PURPOSES AUTHORIZED BY THE LEASE WHERE THE CAUSE OF THE DAMAGE IS UNKNOWN AND CANNOT BE DETERMINED, PARTICULARLY WHERE THE LEASE PROVIDES THAT NO RENTAL SHALL BE PAID IN ANY CASE OF DAMAGE BY FIRE OR OTHERWISE TO SUCH AN EXTENT AS TO RENDER THE BUILDING UNFIT FOR THE USE INTENDED UNTIL THE BUILDING SHALL HAVE BEEN REPAIRED, AND THAT THE LESSOR SHALL KEEP THE BUILDING IN REPAIR DURING THE CONTINUANCE OF THE LEASE EXCEPT IN CASE OF DAMAGE ARISING FROM THE ACT OR NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, JANUARY 28, 1936:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 16, 1935, AS FOLLOWS:

THE QUARTERS OCCUPIED BY THE CENTRAL GARAGE, AT CHICAGO, ILLINOIS, WERE RECENTLY DAMAGED BY THE EXPLOSION OF AN OVEN OWNED AND OPERATED BY THE GOVERNMENT IN THESE LEASED PREMISES. ALTHOUGH THE LEASE WITH THE CHICAGO POST OFFICE SERVICE BUILDING CORPORATION SPECIFICALLY EXEMPTED THE LESSOR FROM LIABILITY FOR DAMAGE "ARISING FROM THE ACT OR THE NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES," THERE WAS ALSO CONTAINED IN THE LEASE (PARAGRAPH 14) A REQUIREMENT THAT THE LESSOR SHOULD RESTORE THE GARAGE TO A SATISFACTORY CONDITION IN THE EVENT OF DAMAGE BY FIRE OR OTHERWISE.

THE DEPARTMENT REACHED THE CONCLUSION THAT THE CHICAGO POST OFFICE SERVICE BUILDING CORPORATION WAS REQUIRED TO REPAIR THE DAMAGE CAUSED BY THE EXPLOSION, WHICH IT DID AT A COST OF $2,190.52; BUT THAT SINCE THE LEASE SPECIFICALLY EXEMPTED THE LESSOR FROM LIABILITY FOR DAMAGE ARISING IN THIS MANNER, THE DEPARTMENT BECAME OBLIGATED TO REPAY THE COST OF RESTORING THE PREMISES TO A SATISFACTORY CONDITION.

REQUEST IS MADE THAT YOU ADVISE WHETHER THE APPROPRIATION FOR "VEHICLE SERVICE--- 1935" IS PROPERLY CHARGEABLE WITH THE EXPENSE INCIDENT TO THE RESTORATION OF THE GARAGE FOLLOWING THIS EXPLOSION.

IT APPEARS THAT THE CHICAGO POST OFFICE SERVICE BUILDING CORPORATION LEASED A BUILDING TO THE UNITED STATES FOR USE AS A GARAGE. THE LEASE DATED SEPTEMBER 12, 1927, WAS EXECUTED FOR A PERIOD OF 10 YEARS. THE BUILDING WAS TO BE USED EXCLUSIVELY AS AND FOR A GARAGE AND SHOPS. DURING THE TERM OF THE LEASE AND WHILE THE BUILDING WAS BEING USED FOR PURPOSES AUTHORIZED BY LEASE ON FEBRUARY 5, 1935, THERE WAS AN EXPLOSION IN THE WELDING SHOP OF THE GARAGE WHICH DAMAGED THE BUILDING. THE DAMAGE WAS REPAIRED BY THE LESSOR AT A COST REPORTED TO BE $2,190.52. THIS CLAIM IS FOR REIMBURSEMENT IN THAT AMOUNT.

PARAGRAPHS 7 AND 14 OF THE LEASE PROVIDE:

7. THE LESSOR SHALL, UNLESS HEREIN SPECIFIED TO THE CONTRARY, MAINTAIN THE SAID PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF THIS LEASE, EXCEPT IN CASE OF DAMAGE ARISING FROM THE ACT OR THE NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES. FOR THE PURPOSE OF SO MAINTAINING THE PREMISES, THE LESSOR RESERVES THE RIGHT AT REASONABLE TIMES TO ENTER AND INSPECT THE PREMISES AND TO MAKE ANY NECESSARY REPAIRS TO THE BUILDING.

14. IT IS MUTUALLY AGREED AND UNDERSTOOD THAT IN CASE THE SAID GARAGE OR ANY PART THEREOF SHALL BE DAMAGED BY FIRE OR OTHERWISE TO SUCH AN EXTENT AS TO RENDER THE GARAGE UNFIT FOR USE AS A GARAGE, NO RENTAL SHALL BE PAID UNTIL THE BUILDING SHALL BE PUT IN A SATISFACTORY CONDITION FOR OCCUPATION AND USE AS A GARAGE; PROVIDED, HOWEVER, IN THE EVENT OF SUCH CONTINGENCY THE PARTY OF THE FIRST PART MAY CAUSE TO BE FURNISHED TO THE PARTY OF THE SECOND PART REASONABLE ADEQUATE QUARTERS AND FACILITIES, FOR CARRYING ON THE WORK OF POST OFFICE GARAGE UNTIL THE DEMISED GARAGE OR A PORTION THEREOF THAT HAS BECOME UNFIT FOR USE AS A GARAGE SHALL HAVE BEEN MADE FIT FOR SUCH USE AS A GARAGE; THE POST OFFICE DEPARTMENT PAYING A REASONABLE RENTAL FOR SUCH TEMPORARY QUARTERS, SUCH RENTAL, HOWEVER, IN NO EVENT TO BE HIGHER THAN THE RATE AT WHICH THE PREMISES HEREIN LEASED AND RENTED. IN THE EVENT THE PARTY OF THE FIRST PART SHALL FAIL TO FURNISH SUCH QUARTERS AS AFORESAID WITHIN FIFTEEN DAYS AFTER A DEMAND THEREFOR BY THE POSTMASTER GENERAL, OR SHALL FAIL WITH DUE DILIGENCE AND DESPATCH TO COMMENCE AND PROSECUTE THE NECESSARY WORK TO MAKE THE PREMISES HEREIN LOCATED FIT FOR OCCUPANCY AS A POST OFFICE GARAGE, THE POSTMASTER GENERAL SHALL HAVE THE RIGHT, AFTER SUCH FIFTEEN DAYS SHALL HAVE EXPIRED, TO TERMINATE THE LEASE UPON GIVING THE PARTY OF THE FIRST PART FIFTEEN DAYS' NOTICE OF HIS INTENTION TO SO TERMINATE THE LEASE, AND UNLESS SUCH DEFAULT IS CURED DURING THE SAID PERIOD OF FIFTEEN DAYS LAST AFORESAID, THIS LEASE SHALL THEN BE TERMINATED.

YOU STATE THAT THE POST OFFICE DEPARTMENT REACHED THE CONCLUSION THAT THE LESSOR WAS REQUIRED TO REPAIR THE DAMAGE CAUSED BY THE EXPLOSION, WHICH IT DID.

PARAGRAPH 14 OF THE CONTRACT PROVIDES THAT IN CASE OF DAMAGE BY FIVE OR OTHERWISE TO SUCH AN EXTENT AS TO RENDER THE BUILDING UNFIT FOR USE AS A GARAGE, NO RENTAL SHALL BE PAID UNTIL THE BUILDING SHALL HAVE BEEN REPAIRED, AND PARAGRAPH 7 OF THE CONTRACT REQUIRES THE LESSOR TO KEEP THE BUILDING IN REPAIR DURING THE CONTINUANCE OF THE LEASE,"EXCEPT IN CASE OF DAMAGE ARISING FROM THE ACT OR THE NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES.' THE UNITED STATES DID NOT AGREE TO MAKE REPAIRS IN ANY CASE.

UPON THE RECORD IN THE CASE AS SUBMITTED TO THIS OFFICE, IT APPEARS THAT THE CAUSE OF THE EXPLOSION FROM WHICH THE DAMAGE TO THE BUILDING RESULTED, HAS NOT AND CANNOT BE DETERMINED. THE SUPERINTENDENT OF THE MOTOR VEHICLE SERVICE HAS ADVANCED A THEORY WHICH HE STATES IS BASED UPON THE STATEMENT OF THE MECHANIC IN CHARGE OF THE GARAGE AND SHOPS. THE MECHANIC IN CHARGE WAS NOT IN THE WELDING ROOM AT THE TIME OF THE EXPLOSION. AN EXPERT FROM THE PEOPLES GAS, LIGHT AND COKE CO. ADVANCED A DIFFERENT THEORY. IT IS POSSIBLE THAT OTHER AND DIFFERENT THEORIES COULD BE ADVANCED. APPARENTLY, NO DEFINITE CONCLUSION BASED UPON FACTS CAN BE REACHED. UNEXPLAINED INJURY TO PROPERTY ORDINARILY IS THE LOSS OF ITS OWNER. SUCH RESPONSIBILITY IS INCIDENT TO OWNERSHIP OF PROPERTY. WHERE THE CAUSE OF INJURY IS NOT ACCOUNTED FOR, IT MAY BE ATTRIBUTED TO MERE ACCIDENT FOR WHICH NO ONE IS RESPONSIBLE. SEE 45 C.J. 735: UNITED STATES V. BOSTWICK, SUPRA, PAGE 68.

THE BUILDING WAS LEASED TO THE GOVERNMENT FOR USE AS A GARAGE AND SHOPS. THE ROOM IN WHICH THE EXPLOSION OCCURRED WAS BEING USED AS A WELDING SHOP. IT IS NOT CLAIMED THAT SUCH USE WAS UNAUTHORIZED BY THE LEASE, OR WAS IMPROPER.

NOT ONLY DOES THE RECORD FAIL TO ESTABLISH RESPONSIBILITY ON THE GOVERNMENT BUT THERE EXISTS NO APPROPRIATION AVAILABLE FOR PAYING OF THE CLAIM OF THE CHICAGO POST OFFICE SERVICE BUILDING CORPORATION FOR $2,190.52, REPRESENTING THE ALLEGED COST OF REPAIRS MADE NECESSARY BY THE EXPLOSION WHICH OCCURRED ON FEBRUARY 5, 1935. THE CLAIM MUST BE AND IS DENIED.