B-121593, FEB 7, 1955

B-121593: Feb 7, 1955

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SECRETARY: REFERENCE IS MADE TO LETTER OF SEPTEMBER 7. THE CIRCUMSTANCES GIVING RISE TO THE QUESTION ARE AS FOLLOWS: ON AUGUST 23. AS A RESULT OF THE COLLISION CLAIMS IN THE AMOUNTS OF $50 AND $290.65 WERE FILED BY MR. THE CLAIMS WERE CONSIDERED BY THE COMMISSIONER OF PUBLIC ROADS UNDER THE PROVISIONS OF THE FEDERAL TORT CLAIMS ACT. WERE ALLOWED IN FULL ON FEBRUARY 5. THE LETTER OF SEPTEMBER 7 STATES THAT THERE WAS NO DOUBT BUT THAT THE ACCIDENT WAS THE RESULT OF THE NEGLIGENCE OF THE OPERATOR OF THE GOVERNMENT VEHICLE. IT IS STATED FURTHER THAT MR. IN ADDITION TO THE INSTANT CHECK IN THE AMOUNT OF $10 IT IS REPORTED THAT MR. IT IS UNDERSTOOD THAT ADDITIONAL REMITTANCES HAVE BEEN MADE BY MR.

B-121593, FEB 7, 1955

PRECIS-UNAVAILABLE

MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 7, 1954, FILE REFERENCE B 1, FROM THE SOLICITOR, BUREAU OF PUBLIC ROADS, ADDRESSED TO THE DIRECTOR, CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, REQUESTING ADVICE AS TO THE ACTION TO BE TAKEN WITH RESPECT TO A CHECK IN THE AMOUNT OF $10, DATED JULY 26, 1954, AND PREVIOUS INSTALLMENT PAYMENTS RECEIVED BY THE BUREAU OF PUBLIC ROADS FROM MR. WINIFRED L. SMITH, A FORMER EMPLOYEE.

THE CIRCUMSTANCES GIVING RISE TO THE QUESTION ARE AS FOLLOWS:

ON AUGUST 23, 1950, A GOVERNMENT-OWNED TRUCK OPERATED BY MR. SMITH COLLIDED WITH A 1950 OLDSMOBILE SEDAN OWNED BY MR. DONALD D. BRYANT ON THE ALASKA HIGHWAY ABOUT 12 MILES SOUTHEAST OF BIG DELTA, ALASKA. AS A RESULT OF THE COLLISION CLAIMS IN THE AMOUNTS OF $50 AND $290.65 WERE FILED BY MR. BRYANT AND HIS INSURER, THE GOVERNMENT EMPLOYEES INSURANCE COMPANY. THE CLAIMS WERE CONSIDERED BY THE COMMISSIONER OF PUBLIC ROADS UNDER THE PROVISIONS OF THE FEDERAL TORT CLAIMS ACT, 60 STAT. 842, AND WERE ALLOWED IN FULL ON FEBRUARY 5, 1952. THE LETTER OF SEPTEMBER 7 STATES THAT THERE WAS NO DOUBT BUT THAT THE ACCIDENT WAS THE RESULT OF THE NEGLIGENCE OF THE OPERATOR OF THE GOVERNMENT VEHICLE. IT IS STATED FURTHER THAT MR. SMITH LEFT THE FEDERAL SERVICE SHORTLY AFTER THE ACCIDENT FOR REASONS NOT CONNECTED THEREWITH. HOWEVER, IN A LETTER DATED JANUARY 14, 1952, HE AGREED TO REIMBURSE THE GOVERNMENT IN THE AMOUNT OF $340.65 BY PARTIAL PAYMENTS. IN ADDITION TO THE INSTANT CHECK IN THE AMOUNT OF $10 IT IS REPORTED THAT MR. SMITH HAD REMITTED THE TOTAL SUM OF $90, THROUGH JUNE 1954, WHICH AMOUNT HAS BEEN DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. IT IS UNDERSTOOD THAT ADDITIONAL REMITTANCES HAVE BEEN MADE BY MR. SMITH SINCE THE DATE OF THE SOLICITOR'S LETTER.

IN A DECISION DATED MAY 17, 1954, IN THE CASE OF UNITED STATES V. GILMAN, 347 U.S. 507, THE SUPREME COURT OF THE UNITED STATES HELD THAT THE UNITED STATES IS NOT ENTITLED TO RECOVER INDEMNITY FROM ONE OF ITS EMPLOYEES FOR WHOSE NEGLIGENCE IT HAS BEEN HELD LIABLE UNDER THE FEDERAL TORT CLAIMS ACT. ACCORDINGLY, THE GENERAL ACCOUNTING OFFICE WOULD HAVE NO OBJECTION IF YOUR DEPARTMENT SHOULD ADVISE MR. SMITH THAT NO FURTHER PAYMENTS NEED BE MADE.

WHILE THE UNITED STATES IS NOT LEGALLY ENTITLED TO RECOVER INDEMNITY FROM MR. SMITH FOR AMOUNTS IT HAS PAID UNDER THE FEDERAL TORT CLAIMS ACT DUE TO HIS NEGLIGENCE, THE QUESTION OF WHETHER MR. SMITH IS ENTITLED TO REFUNDS OF AMOUNTS HERETOFORE PAID BY HIM TO THE UNITED STATES APPEARS TO DEPEND UPON WHETHER THE INDEMNITY PAYMENTS WERE MADE VOLUNTARILY WITH FULL KNOWLEDGE OF ALL THE FACTS, AS DISTINGUISHED FROM THE LAW, AND WITHOUT ANY FRAUD, DURESS, OR EXTORTION. 44 WORDS AND PHRASES, VOLUNTARY PAYMENT 418; 40 AM. JUR., PAYMENT 157, AND FOLLOWING SECTIONS. THERE IS SOME DOUBT UPON THE BASIS OF THE PRESENT RECORD WHETHER THE PAYMENTS WERE VOLUNTARILY MADE WITHOUT DURESS AND THE BURDEN OF PROOF TO THE CONTRARY WOULD BE UPON MR. SMITH. ACCORDINGLY, ANY PAYMENTS RECEIVED FROM MR. SMITH SHOULD BE DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. IN THE EVENT A CLAIM IS RECEIVED FROM MR. SMITH FOR REFUND OF SUCH PAYMENTS, IT SHOULD BE SUBMITTED TO THIS OFFICE FOR CONSIDERATION.