A-9919, AUGUST 12, 1925, 5 COMP. GEN. 105

A-9919: Aug 12, 1925

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PRIVATE - DAMAGED BY AIRCRAFT THERE IS NO AUTHORITY OF LAW TO PAY A CLAIM FOR DAMAGES TO PRIVATE PROPERTY CAUSED BY AN AIRPLANE WHICH WAS PILOTED BY AN OFFICER OF THE NATIONAL GUARD IN CONNECTION WITH A NATIONAL GUARD TRAINING CAMP NOT UNDER THE SUPERVISION OF OFFICERS OF THE REGULAR ARMY. 1925: APPLICATION WAS RECEIVED JUNE 2. WHEREBY WAS DISALLOWED THE CLAIM OF LEWIS HALL. FOR $400 AS PAYMENT FOR DAMAGES TO HIS PROPERTY CLAIMED TO HAVE RESULTED FROM AN OPERATION OF THE ARMY. THAT THE FLIGHT WAS A REGULARLY ORDERED FLIGHT IN CONNECTION WITH THE MILITARY MANEUVERS BEING CARRIED OUT AT THE TIME. THAT LIEUTENANT RASMUSSEN WAS ON TEMPORARY ACTIVE DUTY. THAT THE ACCIDENT WAS UNAVOIDABLE AND NOT DUE TO THE FAULT OR NEGLIGENCE OF ANY OFFICER OR AGENT OF THE UNITED STATES OR ANY OTHER PERSON.

A-9919, AUGUST 12, 1925, 5 COMP. GEN. 105

PROPERTY, PRIVATE - DAMAGED BY AIRCRAFT THERE IS NO AUTHORITY OF LAW TO PAY A CLAIM FOR DAMAGES TO PRIVATE PROPERTY CAUSED BY AN AIRPLANE WHICH WAS PILOTED BY AN OFFICER OF THE NATIONAL GUARD IN CONNECTION WITH A NATIONAL GUARD TRAINING CAMP NOT UNDER THE SUPERVISION OF OFFICERS OF THE REGULAR ARMY.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 12, 1925:

APPLICATION WAS RECEIVED JUNE 2, 1925, FOR A REVIEW OF SETTLEMENT 067049, DATED MAY 13, 1925, WHEREBY WAS DISALLOWED THE CLAIM OF LEWIS HALL, NIANTIC, CONN., FOR $400 AS PAYMENT FOR DAMAGES TO HIS PROPERTY CLAIMED TO HAVE RESULTED FROM AN OPERATION OF THE ARMY.

THE RECORD SHOWS THAT ON JULY 18, 1924, DURING THE REGULAR 15-DAY ENCAMPMENT OF THE ONE HUNDRED AND EIGHTEENTH OBSERVATION SQUADRON, CONNECTICUT NATIONAL GUARD, A GOVERNMENT AIRCRAFT ISSUED TO THE CONNECTICUT NATIONAL GUARD ON REGULAR REQUISITION AND PILOTED BY FIRST LIEUT. A. R. RASMUSSEN, ONE HUNDRED AND EIGHTEENTH SQUADRON, CONNECTICUT NATIONAL GUARD, IN ATTEMPTING TO TAKE OFF, TO AVOID A SOLDIER ON THE FIELD CRASHED INTO THE HOUSE OWNED BY LEWIS HALL, OF NIANTIC, ONN., DAMAGING THE ROOF, CHIMNEY, AND CEILINGS OF SAID HOUSE.

A BOARD OF OFFICERS CONVENED BY GEN. MORRIS B. PAYNE, COMMANDING THE CONNECTICUT NATIONAL GUARD, FOUND THAT THE ACCIDENT HAD OCCURRED AS SET FORTH IN THE PRECEDING PARAGRAPH; THAT THE FLIGHT WAS A REGULARLY ORDERED FLIGHT IN CONNECTION WITH THE MILITARY MANEUVERS BEING CARRIED OUT AT THE TIME; THAT LIEUTENANT RASMUSSEN WAS ON TEMPORARY ACTIVE DUTY; THAT THE ACCIDENT WAS UNAVOIDABLE AND NOT DUE TO THE FAULT OR NEGLIGENCE OF ANY OFFICER OR AGENT OF THE UNITED STATES OR ANY OTHER PERSON; AND THAT THE SUM OF $400 WOULD PLACE THE PROPERTY IN ITS ORIGINAL CONDITION.

THE ACT OF JUNE 7, 1924, 43 STAT. 477, 483, MAKING APPROPRIATIONS FOR THE WAR DEPARTMENT FOR THE FISCAL YEAR 1925, PROVIDES:

FOR PAYMENT OF CLAIMS OF NOT TO EXCEED $500 IN AMOUNT FOR DAMAGES TO AND LOSS OF PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY THAT HAVE ACCRUED, OR MAY HEREAFTER ACCRUE, FROM TIME TO TIME, $25,000; PROVIDED, THAT SETTLEMENT OF SUCH CLAIMS SHALL BE MADE BY THE GENERAL ACCOUNTING OFFICE, UPON THE APPROVAL AND RECOMMENDATION OF THE SECRETARY OF WAR, WHERE THE AMOUNT OF DAMAGES HAS BEEN ASCERTAINED BY THE WAR DEPARTMENT, AND PAYMENT THEREOF WILL BE ACCEPTED BY THE OWNERS OF THE PROPERTY IN FULL SATISFACTION OF SUCH DAMAGES.

THE PROCEEDINGS OF THE BOARD OF NATIONAL GUARD OFFICERS CONVENED TO CONSIDER THIS CASE WERE FORWARDED BY THE ADJUTANT GENERAL OF CONNECTICUT TO THE CHIEF OF THE MILITIA BUREAU, WAR DEPARTMENT, WHO RETURNED THEM BY FIRST INDORSEMENT OF OCTOBER 2, 1924, READING AS FOLLOWS:

FROM THE INCLOSED PAPERS IT APPEARS THAT THE DAMAGE TO THE HOUSE OWNED BY MR. LEWIS HALL, NIANTIC, CONN., OCCURRED AS THE RESULT OF AN AIRPLANE CRASH DURING A REGULARLY ORDERED DRILL. IF THIS BE TRUE, THERE IS NO AUTHORITY UNDER EXISTING LAW FOR THE PAYMENT OF CLAIM FOR DAMAGES AS THE RESULT OF SUCH CRASH FROM FEDERAL FUNDS.

AFTER VARIOUS MINOR QUESTIONS OF FACT HAD BEEN SETTLED THE PAPERS WERE FORWARDED TO THE CHIEF OF FINANCE FOR CONSIDERATION AS A CLAIM UNDER THE STATUTORY PROVISION HEREINBEFORE QUOTED. THE CHIEF OF FINANCE RETURNED THEM TO THE CHIEF OF THE MILITIA BUREAU BY 12TH INDORSEMENT DATED MARCH 30, 1925, AS FOLLOWS:

1. SINCE IT APPEARS THAT THIS DAMAGE WAS OCCASIONED BY ACTIVITIES OF THE CONNECTICUT NATIONAL GUARD, THE CLAIM IS A MATTER FOR SETTLEMENT BETWEEN THAT STATE AND MR. HALL.

THE CHIEF OF THE MILITIA BUREAU RETURNED THE PAPERS TO THE CHIEF OF FINANCE, THROUGH THE ADJUTANT GENERAL OF THE ARMY, BY 13TH INDORSEMENT OF APRIL 11, 1925, AS FOLLOWS:

1. THIS BUREAU DOES NOT CONCUR IN THE CONCLUSION OF THE CHIEF OF FINANCE AS STATED IN THE 12TH INDORSEMENT.

2. IN VIEW OF A DECISION OF THE COMPTROLLER GENERAL, DATED AUGUST 4, 1924 (4 COMP. GEN. 145), IT APPEARS THAT THIS CLAIM, IF PROPERLY ESTABLISHED, WOULD BE PAYABLE FROM FEDERAL FUNDS UNDER THE PROVISIONS OF AR 35-7040 OR AR 35-7060.

3. THE BOARD WAS APPOINTED UNDER THE PROVISIONS OF A WAR DEPARTMENT ORDER (G.O. NO. 37, W.D., 1920) WHICH HAS BEEN RESCINDED. THE PROCEEDINGS ARE DEFECTIVE IN THAT THEY DO NOT INCLUDE A TRANSCRIPT OF THE EVIDENCE ON WHICH THE FINDINGS ARE BASED. THE AWARD INCLUDES AN ITEM OF $27.00 FOR "RECOMPENSE" WHICH IS NOT UNDERSTOOD BY THIS BUREAU.

4. IN VIEW OF THE DIFFERENCE OF OPINION EXISTING BETWEEN THE CHIEF OF FINANCE AND THIS BUREAU, IT IS RECOMMENDED THAT BEFORE THE BOARD IS RECONVENED OR A NEW BOARD APPOINTED THAT THERE BE A DETERMINATION BY THE SECRETARY OF WAR AS TO WHETHER THE INSTANT CASE IS OF A CLASS WHICH COMES WITHIN THE PURVIEW OF AR 35-7040 OR AR 35-7060.

IT MAY BE STATED HERE THAT AR 35-7040 RELATES TO CLAIMS FOR LOSS OR DAMAGE INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY, AND THAT AR 35-7060 RELATES TO CLAIMS FOR DAMAGES TO PERSONS AND PRIVATE PROPERTY RESULTING FROM THE OPERATION OF AIRCRAFT OF THE ARMY.

BY 15TH INDORSEMENT, DATED APRIL 25, 1925, THE CHIEF OF FINANCE RETURNED THE PAPERS TO THE ADJUTANT GENERAL. SAID 15TH INDORSEMENT IS IN PART AS FOLLOWS:

1. THE DECISION OF THE COMPTROLLER GENERAL REFERRED TO IN THE 13TH INDORSEMENT HAS REFERENCE TO A CLAIM CAUSED BY THE FIRING OF LARGE CALIBER GUNS BY NATIONAL GUARD TROOPS AT A REGULAR ARMY FORT AND UNDER THE SUPERVISION OF REGULAR ARMY OFFICERS. A DIFFERENT SITUATION EXISTS IN THE PRESENT CASE, HOWEVER. THE AIRPLANE WHICH CAUSED THE DAMAGE WAS MERELY LOANED BY THE REGULAR ARMY TO THE CONNECTICUT NATIONAL GUARD FOR USE IN THE MILITARY MANEUVERS OF THAT ORGANIZATION. THE FLIGHT WAS NOT UNDER THE SUPERVISION OF REGULAR ARMY OFFICERS; NEITHER HAD THE COMMANDING OFFICER OF THE POST FROM WHICH THE AIRCRAFT WAS LOANED ANY AUTHORITY OVER THE FLIGHT UNIT. IN OTHER WORDS, THE REGULAR ARMY WAS NOT IN ANY WAY CONNECTED WITH THE INCIDENT EXCEPT BY THE LOAN OF ITS PLANE.

2. THIS OFFICE ADHERES TO THE POSITION TAKEN IN THE 12TH INDORSEMENT, AND IS OF THE OPINION THAT THE CLAIM DOES NOT COME WITHIN THE PURVIEW OF AR 35 -7040 OR AR 35-7060.

THE INDORSEMENT LAST QUOTED WAS APPROVED BY THE ASSISTANT SECRETARY OF WAR UNDER DATE OF MAY 1, 1925, WHICH IN EFFECT CONSTITUTES THE ADMINISTRATIVE DISAPPROVAL OF THE CLAIM BY THE SECRETARY OF WAR.

SINCE THE APPROPRIATION FOR PAYMENT OF CLAIMS FOR DAMAGES TO PRIVATE PROPERTY INCIDENT TO THE TRAINING, PRACTICE, OPERATION, OR MAINTENANCE OF THE ARMY REQUIRES THE APPROVAL AND RECOMMENDATION OF THE SECRETARY OF WAR, IT IS CLEAR THAT THE CLAIM HEREIN STATED CAN NOT BE ALLOWED OR PAID UNDER SAID APPROPRIATION. SEE 4 COMP. GEN. 146.

THE ACT OF JUNE 7, 1924, 43 STAT. 492, MAKING APPROPRIATION FOR THE AIR SERVICE OF THE ARMY FOR THE FISCAL YEAR 1925, PROVIDES:

* * * NOT MORE THAN $4,000 MAY BE EXPENDED FOR SETTLEMENT OF CLAIMS (NOT EXCEEDING $250 EACH) FOR DAMAGES TO PERSONS AND PRIVATE PROPERTY RESULTING FROM THE OPERATION OF AIRCRAFT AT HOME AND ABROAD WHEN EACH CLAIM IS SUBSTANTIATED BY A SURVEY REPORT OF A BOARD OF OFFICERS APPOINTED BY THE COMMANDING OFFICER OF THE NEAREST AVIATION POST AND APPROVED BY THE CHIEF OF AIR SERVICE AND THE SECRETARY OF WAR * * *.

SINCE THIS CLAIM EXCEEDS $250, HAS NOT BEEN SUBSTANTIATED BY A SURVEY REPORT OF A BOARD OF OFFICERS APPOINTED BY THE COMMANDING OFFICER OF THE NEAREST AVIATION POST, AND HAS NOT BEEN APPROVED BY THE CHIEF OF AIR SERVICE AND THE SECRETARY OF WAR, IT IS NOT PAYABLE FROM THE APPROPRIATION FOR THE AIR SERVICE.

FEDERAL APPROPRIATIONS MADE FOR THE NATIONAL GUARD ARE NOT AVAILABLE FOR THE PAYMENT OF THIS CLAIM, SINCE THE USE OF SAID APPROPRIATIONS IS LIMITED TO THE PURPOSES SPECIFIED IN THE VARIOUS ACTS AUTHORIZING APPROPRIATIONS FOR THE NATIONAL GUARD, OR THOSE SET FORTH IN THE APPROPRIATIONS THEMSELVES, AND THERE IS NO PROVISION IN ANY OF THE ACTS REFERRED TO FOR PAYMENT OF CLAIMS FOR DAMAGES ARISING FROM ACCIDENTS OF THE CHARACTER HEREIN CONSIDERED. SEE 4 COMP. GEN. 145.

SINCE THERE IS NO AUTHORITY OF LAW WHEREBY PAYMENT OF THE CLAIM HEREIN CONSIDERED MAY BE ALLOWED, THE SETTLEMENT MUST BE AND IS SUSTAINED.