A-95719, JULY 6, 1938, 18 COMP. GEN. 17

A-95719: Jul 6, 1938

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OCCURRING AT NIGHT AND WHILE THE EQUIPMENT WAS NOT IN USE AND UNDER THE CARE OF A WATCHMAN. WHEREIN WAS DISALLOWED ITS CLAIM FOR THE SUM OF $458.79. THE CLAIM IS ON THE BASIS OF A STATEMENT BY THE CLAIMANT TO THE EFFECT THAT ON MAY 1. WAS BADLY DAMAGED BY FIRE CAUSED BY SOMEONE. THAT THE FIRE DEPARTMENT OF THE CITY OF FALL RIVER WAS CALLED OUT TO EXTINGUISH SAME. REPORTED THAT THE CAUSE OF THE FIRE WAS ATTRIBUTED TO SOME UNKNOWN PERSON OR PERSONS SIPHONING GASOLINE FROM THE COMPRESSOR. THAT A WATCHMAN HAD BEEN ASSIGNED TO THE PROJECT AND WAS ON DUTY AT THE TIME OF THE FIRE. THAT HE WAS AT THE OPPOSITE END OF THE SEWER PROJECT WHEN THE FIRE OCCURRED. THAT THE COMPRESSOR WAS PLACED AT ONE END OF THE OPENING IN THE ROAD AND WAS DIRECTLY ACCESSIBLE THROUGH TALL GRASS AND THAT "NO DOUBT THE THIEF WAS KEEPING TABS ON THE WATCHMAN BEFORE HE STARTED TO TAKE THE GASOLINE.'.

A-95719, JULY 6, 1938, 18 COMP. GEN. 17

PROPERTY - PRIVATE - DAMAGES - RENTED EQUIPMENT - GOVERNMENT LIABILITY WHERE THE CONTRACT FOR RENTAL OF EQUIPMENT CONTAINED NO PROVISION THAT WOULD INCREASE THE LIABILITY OF THE UNITED STATES AS BAILEE BEYOND THE USE OF THE ORDINARY CARE REQUIRED IN A BAILMENT FOR MUTUAL BENEFIT, THE BAILOR MAY NOT BE REIMBURSED THE EXPENSE OF REPAIRS TO THE BAILED EQUIPMENT MADE NECESSARY, NOT BECAUSE OF THE FAULT OR NEGLIGENCE OF THE BAILEE, BUT BECAUSE OF FIRE, ATTRIBUTED TO SOME UNKNOWN PERSON, OCCURRING AT NIGHT AND WHILE THE EQUIPMENT WAS NOT IN USE AND UNDER THE CARE OF A WATCHMAN, PARTICULARLY WHERE THE CONTRACT OF HIRE EXPRESSLY LIMITED THE GOVERNMENT'S LIABILITY TO CASES "OF DAMAGE ARISING FROM THE ACT OR THE NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES.'

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, JULY 6, 1938:

THE MONTAUP SAND AND GRAVEL CO., INC., HAS REQUESTED REVIEW OF SETTLEMENT NO. 0646423, DATED JUNE 11, 1937, WHEREIN WAS DISALLOWED ITS CLAIM FOR THE SUM OF $458.79, COVERING REIMBURSEMENT FOR PARTS AND LABOR USED IN REPAIRING AN AIR COMPRESSOR AS THE RESULT OF DAMAGES SUSTAINED BY FIRE WHILE IN USE BY THE GOVERNMENT ON OFFICIAL PROJECT NO. 65-14-4732.

PURSUANT TO THE TERMS OF THE CONTRACT NO. ER-TPS-14-2579, OF JANUARY 23, 1936, THE MONTAUP SAND AND GRAVEL CO., INC., AGREED TO RENT EQUIPMENT TO THE UNITED STATES FOR USE UNDER THE WORKS PROGRESS ADMINISTRATION PROGRAM IN THE STATE OF MASSACHUSETTS. THE CLAIM IS ON THE BASIS OF A STATEMENT BY THE CLAIMANT TO THE EFFECT THAT ON MAY 1, 1936, AN INGERSOLL-RAND AIR COMPRESSOR, OWNED BY IT AND RENTED TO THE GOVERNMENT ON PURCHASE ORDER NO. 14-24465, FOR USE ON THE ORSWELL STREET SEWER PROJECT NO. 65-14-4732, FALL RIVER, MASS., WAS BADLY DAMAGED BY FIRE CAUSED BY SOMEONE, UNKNOWN TO THE CLAIMANT, ATTEMPTING TO STEAL GASOLINE BY SIPHONING SAME FROM THE TANK AND IN SOME MANNER CAUSING IT TO BECOME IGNITED, THEREBY CREATING A FIRE WHICH NECESSITATED CALLING THE FIRE DEPARTMENT AND CAUSED DAMAGE TO THE COMPRESSOR FOR WHICH CLAIMANT NOW ASKS TO BE REIMBURSED IN THE AMOUNT OF $458.79.

THE RECORD NOW BEFORE THIS OFFICE SHOWS THAT AT ABOUT 11 O-CLOCK P.M. ON MAY 1, 1936, A COMPRESSOR BELONGING TO THE CLAIMANT AND WHILE ON THE PROJECT IN QUESTION, BUT NOT IN USE, CAUGHT ON FIRE, AND THAT THE FIRE DEPARTMENT OF THE CITY OF FALL RIVER WAS CALLED OUT TO EXTINGUISH SAME; THAT THE CHIEF, FIRE DEPARTMENT, REPORTED THAT THE CAUSE OF THE FIRE WAS ATTRIBUTED TO SOME UNKNOWN PERSON OR PERSONS SIPHONING GASOLINE FROM THE COMPRESSOR. IT APPEARS, ALSO, THAT A WATCHMAN HAD BEEN ASSIGNED TO THE PROJECT AND WAS ON DUTY AT THE TIME OF THE FIRE, BUT THAT HE WAS AT THE OPPOSITE END OF THE SEWER PROJECT WHEN THE FIRE OCCURRED. THE WORKS PROGRESS ADMINISTRATION REPRESENTATIVE AT FALL RIVER REPORTED, IN LETTER OF JUNE 23, 1936, THAT THE COMPRESSOR WAS PLACED AT ONE END OF THE OPENING IN THE ROAD AND WAS DIRECTLY ACCESSIBLE THROUGH TALL GRASS AND THAT "NO DOUBT THE THIEF WAS KEEPING TABS ON THE WATCHMAN BEFORE HE STARTED TO TAKE THE GASOLINE.'

PARAGRAPHS 7 AND 10 OF THE GENERAL CONDITIONS OF EQUIPMENT RENTAL CONTRACT IN QUESTION ARE AS FOLLOWS:

7. THE BIDDER SHALL BEAR ALL EXPENSES INCIDENT TO THE MAINTENANCE AND REPAIR OF ALL EQUIPMENT RENTED, AND FOR DEPRECIATION ON WEAR AND TEAR RESULTING FROM THE OPERATION THEREOF.

10. THE GOVERNMENT ASSUMES NO RESPONSIBILITY FOR EQUIPMENT, ACCESSORIES, OR TOOLS LEASED UNDER THIS CONTRACT, EXCEPT IN CASE OF DAMAGE ARISING FROM THE ACT OR THE NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES.

THE RENTAL OF THE EQUIPMENT IN THIS CASE IS TO BE REGARDED AS A BAILMENT FOR MUTUAL BENEFIT. THE GENERAL RULE IS THAT IN A BAILMENT FOR MUTUAL BENEFIT OF THE BAILOR AND BAILEE, THE BAILEE MUST EXERCISE ORDINARY CARE IN USING AND KEEPING THE HIRED CHATTEL. THE LEGAL DUTY OF THE BAILEE HAVING BEEN THUS FIXED, ANY BREACH OF THAT DUTY IS NEGLIGENCE WHICH RENDERS THE BAILEE LIABLE TO THE BAILOR FOR ANY DAMAGE THEREBY APPROXIMATELY OCCASIONED. ORDINARY CARE, HOWEVER, IN THE ABSENCE OF THE BAILEE'S ACTIVE WRONG DOING OR SPECIAL CONTRACT, IS THE FULL MEASURE OF THE BAILEE'S DUTY. WHEN THIS DUTY, THEREFORE, HAS BEEN FULFILLED THE BAILEE IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO THE BAILED CHATTEL REGARDLESS OF HOW IT HAPPENED. SEE DOBIE ON BAILMENTS AND CARRIERS, PAGE 118, AND CASES CITED THEREIN.

WHEN A BAILMENT IS RECIPROCALLY BENEFICIAL TO BOTH PARTIES, THE LAW REQUIRES ONLY ORDINARY DILIGENCE ON THE PART OF THE BAILEE. WILLIAMSON V. PHILLIPOFF, 52 L.R.A. (N.S.) 412.

THE ORDINARY CARE OF THE SUBJECT-MATTER OF A BAILMENT FOR MUTUAL BENEFIT MEANS SUCH CARE AS ORDINARILY PRUDENT MEN, AS A CLASS, WOULD EXERCISE IN CARING FOR THEIR OWN PROPERTY UNDER THE LIKE CIRCUMSTANCES; AND WHETHER IT IS EXERCISED OR NOT IS A QUESTION OF FACT FOR THE DETERMINATION OF THE JURY UNDER PROPER INSTRUCTIONS. FRAAM V. GRAND RAPIDS AND I.R. CO., 29 L.R.A. (N.S.) 834.

A BAILEE IS NOT LIABLE IF THE PROPERTY BAILED IS INJURED BY ACCIDENT OR BY SOME OTHER MEANS WHOLLY WITHOUT FAULT; AND, IN THE ABSENCE OF SOME SPECIAL STIPULATION, AN INJURY TO OR LOSS OF THE PROPERTY FALLS ON THE BAILOR. WILLIAMSON V. PHILLIPOFF, 52 L.R.A. (N.S.) 412.

THE CONTRACT IN THIS CASE AS NOTED, SUPRA, CONTAINED NO PROVISION THAT WOULD INCREASE THE LIABILITY OF THE UNITED STATES WITH RESPECT TO THE EQUIPMENT BEYOND THE USE OF ORDINARY CARE. ON THE CONTRARY, THE CONTRACT, AS NOTED, SUPRA, EXPRESSLY LIMITED THE LIABILITY OF THE GOVERNMENT TO CASES OF "DAMAGE ARISING FROM THE ACT OR THE NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES.' THERE IS NOTHING IN THE RECORD TO ESTABLISH THAT THE DAMAGE WAS CAUSED BY THE ACT OR THE NEGLIGENCE OF ANY AGENT OR EMPLOYEE OF THE GOVERNMENT WITH RESPECT TO THE EQUIPMENT.

IN VIEW OF THE FACTS AND CIRCUMSTANCES AND THE TERMS OF THE CONTRACT, IT MUST BE HELD THERE IS NO LIABILITY ON THE PART OF THE UNITED STATES TO PAY FOR THE REPAIRS TO THE COMPRESSOR MADE NECESSARY BY THE FIRE FOR WHICH THE GOVERNMENT WAS NOT RESPONSIBLE.

ACCORDINGLY, THE SETTLEMENT DISALLOWING THE CLAIM MUST BE AND IS SUSTAINED.