B-135297, MAR. 28, 1958

B-135297: Mar 28, 1958

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STARR: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 20. REPRESENTING DAMAGES TO A GOVERNMENT-OWNED VEHICLE RESULTING FROM AN ACCIDENT WHICH OCCURRED WHILE HE WAS OPERATING THE VEHICLE ON SEPTEMBER 10. THE INDEBTEDNESS WAS CERTIFIED TO THIS OFFICE BY LETTER OF MAY 9. LONG WAS INDEBTED TO THE UNITED STATES IN THE AMOUNT STATED AS A RESULT OF A REPORT OF SURVEY DATED OCTOBER 5. THAT IN ANY SUCH CASE WHERE A PERSON OR CONCERN IS HELD PECUNIARILY LIABLE. LONG PECUNIARILY LIABLE FOR THE DAMAGE SUSTAINED TO THE GOVERNMENT-OWNED VEHICLE ON THE GROUND THAT HIS NEGLIGENCE IN DRIVING THE VEHICLE WAS THE PROXIMATE CAUSE OF THE ACCIDENT. SUCH ACTION WAS APPROVED BY AUTHORITY OF THE SECRETARY OF THE AIR FORCE ON JUNE 4.

B-135297, MAR. 28, 1958

TO MR. LOUIS E. STARR:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 20, 1958, CONCERNING THE GOVERNMENT'S CLAIM AGAINST YOUR CLIENT, EMIL E. LONG IN THE AMOUNT OF $242, REPRESENTING DAMAGES TO A GOVERNMENT-OWNED VEHICLE RESULTING FROM AN ACCIDENT WHICH OCCURRED WHILE HE WAS OPERATING THE VEHICLE ON SEPTEMBER 10, 1955, DURING HIS SERVICE AS A MEMBER OF THE UNITED STATES AIR FORCE.

THE INDEBTEDNESS WAS CERTIFIED TO THIS OFFICE BY LETTER OF MAY 9, 1957, FROM THE OFFICE OF THE CHIEF, COLLECTION BRANCH, SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, AS HAVING BEEN BASED UPON A DETERMINATION BY THE SECRETARY OF THE AIR FORCE THAT MR. LONG WAS INDEBTED TO THE UNITED STATES IN THE AMOUNT STATED AS A RESULT OF A REPORT OF SURVEY DATED OCTOBER 5, 1955.

THE ACT OF OCTOBER 11, 1951, 65 STAT. 387, REPEALED BY SECTION 53B OF THE ACT OF AUGUST 10, 1956, 70A STAT. 651, 682 (NOW CODIFIED IN 10 U.S.C. 9835), PROVIDED:

"THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE AIR FORCE, DESIGNATED OFFICERS MAY TAKE ACTION UPON REPORTS OF SURVEY AND ALL OTHER VOUCHERS PERTAINING TO THE LOSS, DAMAGE, SPOILAGE, UNSERVICEABILITY, UNSUITABILITY, OR DESTRUCTION OF PROPERTY OF THE UNITED STATES UNDER THE CONTROL OF THE DEPARTMENT OF THE AIR FORCE, AND THE ACTION TAKEN BY ANY SUCH OFFICER ON THOSE SURVEYS OR VOUCHERS SHALL BE FINAL: PROVIDED, THAT IN ANY SUCH CASE WHERE A PERSON OR CONCERN IS HELD PECUNIARILY LIABLE, THE FINDINGS SHALL NOT BE FINAL UNTIL APPROVED BY THE SECRETARY OF THE AIR FORCE OR BY SUCH OFFICERS AS THE SECRETARY MAY DESIGNATE.'

THE REPORT OF SURVEY OF OCTOBER 5, 1955, HELD MR. LONG PECUNIARILY LIABLE FOR THE DAMAGE SUSTAINED TO THE GOVERNMENT-OWNED VEHICLE ON THE GROUND THAT HIS NEGLIGENCE IN DRIVING THE VEHICLE WAS THE PROXIMATE CAUSE OF THE ACCIDENT. SUCH ACTION WAS APPROVED BY AUTHORITY OF THE SECRETARY OF THE AIR FORCE ON JUNE 4, 1956. SUCH FINDINGS OF NEGLIGENCE AND LIABILITY FOR THE RESULTING DAMAGE ARE NOT SUBJECT TO REVIEW BY THIS OFFICE.

THE INDEBTEDNESS WAS CERTIFIED TO US UNDER AUTHORITY OF SECTIONS 1 AND 2 OF THE ACT OF MARCH 29, 1894, 28 STAT. 47 AS AMENDED, 31 U.S.C. 89, 90. UNDER THE PROVISIONS OF THAT ACT, WE MAY NOT QUESTION THE PROPRIETY OF ANY CHARGE AGAINST ANY OFFICER OR OTHER AGENT INTRUSTED WITH PUBLIC PROPERTY ARISING FROM LOSS ACCRUING BY HIS FAULT, WHICH IS REPORTED HERE FOR DEBITING AGAINST HIS ACCOUNT.

CONCERNING YOUR STATEMENT THAT THE STATUTE AND DECISIONS IN EFFECT DURING THE PERIOD HERE INVOLVED PROVIDED THAT BEFORE A MAN IS CHARGEABLE WITH DAMAGE TO PROPERTY, THERE MUST BE A SHOWING OF GROSS NEGLIGENCE, IT IS NOT KNOWN TO WHAT DECISIONS YOU REFER. THE STATUTE IN EFFECT AT THAT TIME WAS SECTION 1303 OF THE REVISED STATUTES, 10 U.S.C. 871 (1952 ED.), WHICH PROVIDED FOR THE PAYMENT OF DAMAGES "OCCASIONED BY ABUSE OR NEGLIGENCE OF SAID OFFICER OR SOLDIER.' NO SHOWING OF GROSS NEGLIGENCE IS REQUIRED UNDER SUCH PROVISIONS OF LAW. WHILE IT APPEARS THAT CERTAIN ADMINISTRATIVE REGULATIONS THEN IN EFFECT PURPORTED TO LIMIT LIABILITY FOR DAMAGES TO GOVERNMENT AUTOMOTIVE VEHICLES TO SITUATIONS INVOLVING WILLFUL MISCONDUCT OR OTHER ACTS AMOUNTING TO CONSCIOUS RECKLESSNESS OR INDIFFERENCE TO CONSEQUENCES (GROSS NEGLIGENCE), SUCH REGULATION COULD NOT PROPERLY BE GIVEN AN EFFECT INCONSISTENT WITH THE CITED STATUTORY PROVISIONS. THIS LATER WAS RECOGNIZED AND THE REGULATIONS WERE AMENDED TO REFLECT THE STATUTORY DEGREE OF NEGLIGENCE. HOWEVER, SINCE MR. LONG'S LIABILITY WAS FIXED BY LAW RATHER THAN BY REGULATIONS, ANY REGULATIONS -- THEN IN FORCE OR AS AMENDED--- PURPORTING TO PRESCRIBE THE DEGREE OF NEGLIGENCE NECESSARY TO SUSTAIN A CONCLUSION OF LIABILITY, ARE NOT CONTROLLING IN DETERMINING HIS LIABILITY FOR THE DAMAGES INVOLVED.

WHILE WE MAY NOT REVIEW THE FINDINGS OF THE SURVEY APPROVED BY PROPER OFFICERS OF THE AIR FORCE, THE REGULATIONS PROVIDE FOR A RIGHT OF APPEAL OF ALL FINDINGS OF REPORTS OF SURVEY OF THIS NATURE TO THE SECRETARY OF THE AIR FORCE. IN THE ABSENCE OF SUCH AN APPEAL, AND A REVIEW PURSUANT THERETO, WE HAVE NO ALTERNATIVE BUT TO REQUEST PAYMENT OF THE INDEBTEDNESS WHICH HAS BEEN CERTIFIED HERE FOR COLLECTION. THE REMITTANCE SHOULD BE IN THE FORM OF A BANK DRAFT, CHECK OR POSTAL MONEY ORDER MADE PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO THE CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C., REFERRING TO CLAIM NO. Z-1-834-086.