A-95938, JULY 29, 1938, 18 COMP. GEN. 109

A-95938: Jul 29, 1938

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PROPERTY - PRIVATE - DAMAGES - DEATH OF HORSE HIRED BY FOREST SERVICE IN CONNECTION WITH CIVILIAN CONSERVATION CORPS WORK THERE IS NO AUTHORITY FOR PAYMENT OF THE APPRAISED VALUE OF A HORSE WHICH DIED WHILE IN POSSESSION OF THE GOVERNMENT UNDER AN AGREEMENT OF THE FOREST SERVICE IN CONNECTION WITH WORK TO BE DONE BY THE CIVILIAN CONSERVATION CORPS. AS THE DEATH OF THE HORSE WAS WITHOUT THE FAULT OR NEGLIGENCE ON THE PART OF THE GOVERNMENT. THE CLAIM IS NOT ONE FOR CONSIDERATION BY THE ADMINISTRATIVE OFFICE UNCER THE ACT OF DECEMBER 28. THE RECORD SHOWS THAT THE MARE WAS HIRED FOR USE IN CONNECTION WITH REPAIRS BY THE CIVILIAN CONSERVATION CORPS TO STOCK TANKS IN COMANCHE CANYON. I WAS PUT IN CHARGE OF A DETAIL OF MEN AND RENTED TEAMS TO REPAIR STOCK TANKS IN COMANCHE CANYON.

A-95938, JULY 29, 1938, 18 COMP. GEN. 109

PROPERTY - PRIVATE - DAMAGES - DEATH OF HORSE HIRED BY FOREST SERVICE IN CONNECTION WITH CIVILIAN CONSERVATION CORPS WORK THERE IS NO AUTHORITY FOR PAYMENT OF THE APPRAISED VALUE OF A HORSE WHICH DIED WHILE IN POSSESSION OF THE GOVERNMENT UNDER AN AGREEMENT OF THE FOREST SERVICE IN CONNECTION WITH WORK TO BE DONE BY THE CIVILIAN CONSERVATION CORPS, NOTWITHSTANDING THE CONTRACTUAL PROVISION THEREFOR, THE ACT OF JANUARY 31, 1931, AUTHORIZING THE SECRETARY OF AGRICULTURE TO REIMBURSE OWNERS FOR SUCH LOSS NOT BEING APPLICABLE TO LOSS OR DAMAGE TO PRIVATE PROPERTY HIRED FOR USE ON EMERGENCY CONSERVATION WORK PROJECTS AND NEITHER THE APPROPRIATION FOR EMERGENCY CONSERVATION WORK FOR THE PERIOD INVOLVED, NOR ANY OTHER STATUTES, AUTHORIZING SUCH REIMBURSEMENTS OR INCLUSION OF SUCH DAMAGE PROVISIONS IN THE AGREEMENT, AND, AS THE DEATH OF THE HORSE WAS WITHOUT THE FAULT OR NEGLIGENCE ON THE PART OF THE GOVERNMENT, THE CLAIM IS NOT ONE FOR CONSIDERATION BY THE ADMINISTRATIVE OFFICE UNCER THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, NOR FOR REPORTING BY THE GENERAL ACCOUNTING OFFICE TO THE CONGRESS FOR RELIEF UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, JULY 29, 1938:

THE UNITED STATES DEPARTMENT OF AGRICULTURE HAS TRANSMITTED TO THIS OFFICE THROUGH THE OFFICE OF THE CHIEF OF FINANCE, WAR DEPARTMENT, FOR DIRECT SETTLEMENT THE CLAIM OF ARCHIE HERRERA, LA MADERA, NEW MEXICO, IN THE AMOUNT OF $30, THE APPRAISED VALUE OF ONE WHITE MARE, AGE 18 YEARS, WHICH DIED WHILE IN THE POSSESSION OF THE GOVERNMENT UNDER AN AGREEMENT FOR HIRE EVIDENCED BY FOREST SERVICE FORM NO. 587, MEMORANDUM OF VERBAL AGREEMENT, DATED MAY 17, 1937. THE CLAIM HAS BEEN ADMINISTRATIVELY APPROVED FOR PAYMENT UNDER THE APPROPRIATION "EMERGENCY CONSERVATION WORK (TRANSFER TO WAR, ACT FEBRUARY 9, 1937), 1937.'

THE RECORD SHOWS THAT THE MARE WAS HIRED FOR USE IN CONNECTION WITH REPAIRS BY THE CIVILIAN CONSERVATION CORPS TO STOCK TANKS IN COMANCHE CANYON, CARSON NATIONAL FOREST. THE MEMORANDUM OF VERBAL AGREEMENT PROVIDES: "DEATH OR PERMANENT DISABILITY ASSUMED BY THE FOREST SERVICE. TEMPORARY ILLNESS ASSUMED BY OWNER.'

IN A STATEMENT DATED NOVEMBER 29, 1937, THE FOREMAN OF CIVILIAN CONSERVATION CORPS CAMP F-43-N, LA MADERA, NEW MEXICO, HAS REPORTED THE FACTS CONCERNING THE DEATH OF THE MARE AS FOLLOWS:

ON MAY 18, 1937, I WAS PUT IN CHARGE OF A DETAIL OF MEN AND RENTED TEAMS TO REPAIR STOCK TANKS IN COMANCHE CANYON, CARSON NATIONAL FOREST.

TWO MEN WERE LEFT IN CHARGE OF THE TEAMS WHICH WERE LEFT AT THE OLD AMADOR RANCH, ON THE NIGHT OF JUNE 2, AND A HARD RAIN STORM CAME UP AND THE HORSES BROKE LOOSE. THE MEN GOT UP AND CAUGHT THEM, TIED THEM UP AGAIN AND WENT BACK TO BED. WHEN DAYLIGHT CAME, THEY WENT OUT TO SEE HOW THE HORSES WERE, AND ONE WHITE MARE, BELONGING TO ARCHIE HERRERA, WAS DOWN. WHEN I ARRIVED ABOUT 8:00 A.M. WITH MY GANG, WE ALL TRIED TO GET HER UP BUT COULD NOT.

I CAME BACK TO CAMP AND GOT PROJECT SUPERINTENDENT ALLEN TO GO OUT WITH ME. WE TOOK A BIG DOSE OF SALTS AND POURED DOWN THE MARE, BUT IT NEVER DID ANY GOOD. WE COULD GET NO BOWEL MOVEMENT AT ALL FOR SOME TIME. TWO OR THREE OTHER FOREMEN LOOKED AT HER BUT COULD NOT TELL WHAT WAS WRONG. SHE TOOK SOME WATER AND A LITTLE HAY, BUT WOULD NOT GET UP. WE WATERED AND FED HER FOR TWO DAYS, BUT SHE NEVER GOT UP; AND ON THE AFTERNOON OF THE THIRD DAY SHE DIED.

I DO NOT KNOW WHAT WAS WRONG WITH HER, NOR DO THE OTHER MEN WHO SAW HER.

THESE TEAMS WERE BEING USED ON TWO HORSE FRESNOS IN EARTH CONSTRUCTION, AND WERE NOT SUBJECTED TO EXCESSIVE HARD PULLING. THIS MARE WORKED ALL DAY THE DAY BEFORE AND WAS APPARENTLY IN GOOD SHAPE AT THE CLOSE OF THE DAY'S WORK.

THE FIRST DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1937, APPROVED FEBRUARY 9, 1937, PROVIDED UNDER THE HEADING EMERGENCY CONSERVATION WORK, 50 STAT. 10, AS FOLLOWS:

FOR AN ADDITIONAL AMOUNT FOR THE PURPOSE OF CARRYING INTO EFFECT THE PROVISIONS OF THE ACT ENTITLED "AN ACT FOR THE RELIEF OF UNEMPLOYMENT THROUGH THE PERFORMANCE OF USEFUL PUBLIC WORK, AND FOR OTHER PURPOSES," APPROVED MARCH 31, 1933, WHICH ACT, AS AMENDED, IS HEREBY CONTINUED IN FULL FORCE AND EFFECT TO AND INCLUDING JUNE 30, 1937, $95,000,000, TO BE EXPENDED UNDER THE DIRECTION OF THE PRESIDENT AND TO BE AVAILABLE UNTIL JUNE 30, 1937, FOR THE SAME PURPOSES AND OBJECTS AS THOSE SPECIFIED UNDER THIS HEAD IN THE FIRST DEFICIENCY APPROPRIATION ACT, FISCAL YEAR 1936.

THERE IS NO PROVISION IN THE ACT OF FEBRUARY 9, 1937, SUPRA, OR IN ANY OF THE ACTS CITED THEREIN, NOR IS THERE ANY OTHER STATUTORY PROVISION AUTHORIZING THE USE OF EMERGENCY CONSERVATION WORK FUNDS TO REIMBURSE THE OWNERS OF ANIMALS OR EQUIPMENT LOST OR DAMAGED WHILE UNDER HIRE FOR THE PERFORMANCE OF USEFUL PUBLIC WORK CONTEMPLATED BY SAID ACTS. IN THIS CONNECTION IT MAY BE NOTED THAT THE ACT OF JANUARY 31, 1931, 46 STAT. 1052, AUTHORIZED THE SECRETARY OF AGRICULTURE, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, TO REIMBURSE OWNERS FOR LOSS, DAMAGE, OR DESTRUCTION OF HORSES, VEHICLES, AND OTHER EQUIPMENT OBTAINED BY THE FOREST SERVICE FOR THE USE OF THAT SERVICE FROM EMPLOYEES OR OTHER PRIVATE OWNERS, AND PROVIDES THAT PAYMENTS OR REIMBURSEMENTS THEREIN AUTHORIZED MAY BE MADE FROM THE APPLICABLE APPROPRIATIONS FOR THE FOREST SERVICE. IT HAS BEEN HELD, HOWEVER, THAT PROPERTY HIRED FOR USE ONEMERGENCY CONSERVATION WORK PROJECTS IS NOT ,OBTAINED BY THE FOREST SERVICE FOR THE USE OF THAT SERVICE" WITHIN THE PURVIEW OF THE ACT OF JANUARY 31, 1931, AND THAT SAID ACT DOES NOT AUTHORIZE REIMBURSEMENT EITHER FROM EMERGENCY CONSERVATION FUNDS OR UNDER THE REGULAR APPROPRIATIONS FOR THE FOREST SERVICE FOR DAMAGES TO PRIVATE PROPERTY HIRED FOR USE ON SUCH EMERGENCY CONSERVATION WORK PROJECTS. 16 COMP. GEN. 123; A-62062, MAY 26, 1936.

THE GENERAL RULE IS THAT IN THE ABSENCE OF AN AUTHORIZED CONTRACTUAL PROVISION THEREFOR, THE UNITED STATES IS NOT LIABLE FOR INJURIES SUSTAINED, WITHOUT FAULT OR NEGLIGENCE ON THE PART OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT, BY HORSES WHEN BEING USED FOR THE PURPOSES FOR WHICH HIRED. 16 COMP. DEC. 68; 1 COMP. GEN. 192; 3 ID. 505; 4 ID. 1028. THE CONTRACTUAL PROVISION IN THIS CASE--- THAT RISK OF LOSS BY DEATH OR PERMANENT DISABILITY OF THE HORSE WOULD BE ASSUMED BY THE FOREST SERVICE-- - NOT BEING AUTHORIZED UNDER ANY APPROPRIATION OR OTHER PROVISION OF LAW, WAS WITHOUT ANY EFFECT TO IMPOSE UPON THE GOVERNMENT LIABILITY FOR SUCH INJURY OR DEATH BEYOND THE LIABILITY UNDER THE ABOVE-STATED GENERAL RULE. SEE SECTION 3678, REVISED STATUTES; 13 COMP. GEN. 458, 459, AND A-87007, AUGUST 25, 1937.

IT DOES NOT APPEAR FROM THE STATEMENT OF FACTS PREPARED BY THE FOREMAN OF THE CIVILIAN CONSERVATION CORPS CAMP THAT THE DEATH OF THE HORSE WAS DUE TO ANY FAULT OR NEGLIGENCE ON THE PART OF GOVERNMENT EMPLOYEES, SO THAT THE CLAIM DOES NOT APPEAR ONE FOR CONSIDERATION BY THE ADMINISTRATIVE OFFICE UNDER THE PROVISIONS OF THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066. NEITHER IS THE CLAIM ONE FOR CONSIDERATION BY THIS OFFICE UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413. 16 COMP. GEN. 642.

ACCORDINGLY, IN THE CIRCUMSTANCES APPEARING THE CLAIM MUST BE AND IS DISALLOWED.