A-9258, JUNE 10, 1925, 4 COMP. GEN. 1028

A-9258: Jun 10, 1925

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PRIVATE - LOSS OF WHILE HIRED BY THE GEOLOGICAL SURVEY THE UNITED STATES IS NOT LIABLE FOR THE LOSS OF HORSES WHILE UNDER HIRE TO THE GEOLOGICAL SURVEY BY A FORMAL AGREEMENT. WHEN NO CONVINCING EVIDENCE OF NEGLIGENCE OR LACK OF REASONABLE CARE ON THE PART OF THE UNITED STATES IS SUBMITTED. DISALLOWING HIS CLAIM OF $70 FOR TWO HORSES WHICH WERE LOST WHILE UNDER HIRE BY THE UNITED STATES GEOLOGICAL SURVEY. THE CONTRACT UNDER WHICH THE HORSES WERE HIRED PROVIDED: ARTICLE 1. WHEN NO LONGER NEEDED IN THE WORK OF SURVEYING FOR WHICH THE SAID SADDLE ANIMALS ARE TO BE USED. PARTY OF THE FIRST PART AGREES TO PAY TO PARTY OF THE SECOND PART FOR THE USE OF SAID SADDLE ANIMALS AT THE RATE OF TWELVE DOLLARS ($12) PER MONTH PER HEAD WHILE SAID ANIMALS ARE IN USE BY SAID PARTY OF THE FIRST PARTY.

A-9258, JUNE 10, 1925, 4 COMP. GEN. 1028

PROPERTY, PRIVATE - LOSS OF WHILE HIRED BY THE GEOLOGICAL SURVEY THE UNITED STATES IS NOT LIABLE FOR THE LOSS OF HORSES WHILE UNDER HIRE TO THE GEOLOGICAL SURVEY BY A FORMAL AGREEMENT, PROVIDING THAT THE UNITED STATES SHALL USE ALL REASONABLE CARE AND THAT NONE OF THE ANIMALS SHALL BECOME INJURED OR LOST, WHEN NO CONVINCING EVIDENCE OF NEGLIGENCE OR LACK OF REASONABLE CARE ON THE PART OF THE UNITED STATES IS SUBMITTED.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 10, 1925:

S. B. MCHENRY HAS APPLIED FOR REVIEW OF SETTLEMENT OF JANUARY 14, 1925, NO. 062194, DISALLOWING HIS CLAIM OF $70 FOR TWO HORSES WHICH WERE LOST WHILE UNDER HIRE BY THE UNITED STATES GEOLOGICAL SURVEY.

THE CONTRACT UNDER WHICH THE HORSES WERE HIRED PROVIDED:

ARTICLE 1.--- THE PARTY OF THE SECOND PART (S. B. MCHENRY) AGREES TO FURNISH TO THE PARTY OF THE FIRST PARTY SADDLE ANIMALS, WHICH SADDLE ANIMALS SHALL BE HEALTHY AND SOUND AND WHICH SHALL BE CAPABLE OF CLIMBING MOUNTAINS. PARTY OF THE FIRST PARTY AGREES TO FEED AND CARE FOR THE SAID SADDLE ANIMALS AND KEEP SAME SHOD AND TO RETURN SAME, WHEN NO LONGER NEEDED IN THE WORK OF SURVEYING FOR WHICH THE SAID SADDLE ANIMALS ARE TO BE USED, TO BE RETURNED TO SAID PARTY OF THE SECOND PARTY AT MURRAY, UTAH.

PARTY OF THE FIRST PART SHALL USE ALL REASONABLE CARE THAT NONE OF SAID SADDLE ANIMALS SHALL BECOME INJURED OR LOST, BUT IN CASE OF ANY DISPUTE, NONE OF SAID ANIMALS SHALL BE HELD TO BE WORTH MORE THAN FORTY DOLLARS.

PARTY OF THE FIRST PART AGREES TO PAY TO PARTY OF THE SECOND PART FOR THE USE OF SAID SADDLE ANIMALS AT THE RATE OF TWELVE DOLLARS ($12) PER MONTH PER HEAD WHILE SAID ANIMALS ARE IN USE BY SAID PARTY OF THE FIRST PARTY. VOUCHERS TO BE RENDERED AT THE END OF EACH CALENDAR MONTH.

J. H. WILKE, THE ASSOCIATE TOPOGRAPHIC ENGINEER, WHO SIGNED THE CONTRACT ON BEHALF OF THE GOVERNMENT, MAKES THE FOLLOWING REPORT CONCERNING THE CIRCUMSTANCES SURROUNDING THE LOSS OF THE TWO ANIMALS:

ON JULY 11 THE BLACK, WHICH HAD BEEN TIED AT CAMP THE NIGHT BEFORE, WAS FOUND MISSING, THE HALTER HAVING BEEN SLIPPED OFF, IT SEEMS. THE BAY WAS LAST SEEN THE SAME MORNING, HOBBLED IN A SMALL DRAW A MILE ABOVE CAMP. SOON AS THE TEAMSTER RETURNED FROM A TRIP TO TOWN (CAMP WAS IN LOWER PART OF LAMB'S CANYON) I HAD HIM RIDE IN EVERY DIRECTION TO LOOK AND INQUIRE FOR THE ANIMALS. HE NEVER FOUND ANY TRACKS NOR DID ANYONE SAY THAT EITHER OF THEM HAD BEEN SEEN BY ANYONE OF WHOM INQUIRY WAS MADE. I MYSELF FOLLOWED ON THE SECOND MORNING WHAT APPEARED TO BE THEIR TRACKS UNTIL THEY REACHED DENSE BRUSH AT THE HEAD OF THE CANYON WHERE THEY COULD NOT BE TRACKED FURTHER.

THE SECOND DAY AFTER THEIR DISAPPEARANCE THE TEAMSTER, MYSELF, AND RECORDER RODE TO FIND THEM ON SUNDAY. THE THIRD DAY AFTER THEIR DISAPPEARANCE THE TEAMSTER MADE A TRIP TO MURRAY, WHERE THE ANIMALS WERE HIRED, TO SEE IF THEY PERHAPS HAD GONE HOME, BUT MCHENRY SAID THEY HAD NOT COME THERE; ALSO SAID THAT THEY WOULD NOT BE LIKELY TO COME THERE, AS HE HAD ONLY SHORTLY BEFORE HIRING THEM OUT KEPT THEM THERE. BESIDES THE TEAMSTER RIDING ALMOST DAILY FOR OVER A WEEK, AND WHENEVER HE COULD AFTER THAT, I MYSELF RODE OVER MOUNTAINS AND DRAWS ON THE TWO FOLLOWING SUNDAYS. MANY TOURISTS FREQUENTED THE CANYON AND HOOF PRINTS DID NOT SHOW UP LONG; THE HORSES ALL WERE IN THE HABIT OF STAYING TOGETHER, AND ONLY THE PREVIOUS NIGHT THE BLACK HAD BROKEN ITS HALTER ROPE AND RAN OVER TO WHERE THE OTHER HORSES WERE. THE BAY WAS ALWAYS KNOWN TO RUN TO WHERE THE OTHER ANIMALS OF THE BUNCH WERE WHENEVER LEFT ALONE.

SO, AFTER BEING UNABLE TO FIND TRACE OF THEM, ALL IN CAMP PRETTY WELL AGREED THAT THEY WERE STOLEN; THIS WAS THE OPINION OF THE SHERIFF OF SUMMIT COUNTY. THE SHERIFF OF SALT LAKE COUNTY ALSO HAD HIS DEPUTIES, WHO RODE THE HILLS, TO BE ON THE LOOKOUT FOR THEM. THE SHERIFF OF SUMMIT COUNTY SAID THAT MOST LIKELY A "BOOTLEGGER" OR A SHEEPHERDER RODE THEM OFF.

I HAD PUT IN THE SALT LAKE TRIBUNE, AT MY EXPENSE, A FOUR-LINE ADVERTISEMENT ON SATURDAY AND SUNDAY, STATING THE LOSS AND OFFERING A REWARD FOR INFORMATION.

AT EVERY OPPORTUNITY I HAD OF SEEING ANYONE WHO RODE THE HILLS I INQUIRED IF ANYONE HAD SEEN THE LOST ANIMALS.

I FEEL THAT I PUT FORTH EVERY REASONABLE EFFORT TO LOCATE THE HORSES, AND AM VERY SORRY THAT SUCH A THING OCCURRED. I WORRIED OVER THE MATTER A GREAT DEAL. I FEEL, HOWEVER, THAT IT COULD NOT BE HELPED; I WAS A BIT CONSOLED BY THE THOUGHT THAT SEVERAL OTHERS TOLD ME OF SIMILAR LOSSES OF ANIMALS WITHOUT RECOVERING SAME.

THE CLAIMANT STATES THAT HE HAS SINCE BEEN NOTIFIED BY THE SHERIFF THAT ONE OF THE HORSES HAD BEEN LOCATED AT MIDVALE, UTAH,"WHICH HAD ACCRUED AGAINST IT A FEED BILL SINCE AWAY LAST FALL," AND THAT "IT IS VERY EVIDENT THAT THE ANIMALS WERE NOT STOLEN, BUT WERE PERMITTED TO STRAY AWAY.'

THE CONTRACT FOR HIRE DID NOT MAKE THE UNITED STATES THE ABSOLUTE INSURER OF THE ANIMALS, AND THE GOVERNMENT WAS ONLY REQUIRED TO USE REASONABLE CARE TO PREVENT THEIR INJURY OR LOSS. 16 COMP. DEC. 68; I COMP. GEN. 192. NO EVIDENCE IS SUBMITTED TENDING TO SHOW A FAILURE ON THE PART OF THE GOVERNMENT'S AGENTS TO EXERCISE REASONABLE CARE. THE FACT THAT ONE OF THE HORSES HAS SINCE BEEN FOUND IS NO EVIDENCE OF NEGLIGENCE OR LACK OF REASONABLE CARE ON THE PART OF THE GOVERNMENT AGENTS OR EMPLOYEES AT THE TIME OF LOSS OR DISAPPEARANCE.

FURTHERMORE, EVEN HAD NEGLIGENCE BEEN ESTABLISHED BY COMPETENT EVIDENCE, THE CONTRACT DOES NOT MAKE ANY AGREEMENT TO REIMBURSE THE OWNER FOR THE LOSS OF THE ANIMALS, AND THE ONLY RELIEF WHICH COULD BE AFFORDED THE OWNER IN THE CASE OF NEGLIGENCE WOULD BE UNDER THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, WHICH IS A MATTER OF ADMINISTRATIVE DETERMINATION AND CERTIFICATION TO CONGRESS AND NOT FOR PAYMENT BY OR THROUGH THE GENERAL ACCOUNTING OFFICE.