B-152070, OCT. 3, 1963

B-152070: Oct 3, 1963

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FOR REIMBURSEMENT OF EXPENSES PAID BY YOU FOR DAMAGES SUSTAINED TO A PRIVATELY-OWNED VEHICLE IN AN ACCIDENT IN WHICH YOU WERE INVOLVED AS THE DRIVER OF AN ARMY BUS. YOU WERE DISPATCHED WITH A 37-PASSENGER BUS FROM THE POST MOTOR POOL TO PICK UP A GROUP OF WAC TRAINEES FOR TRANSPORTATION FROM THEIR BARRACKS TO ANOTHER AREA OF THE POST. AS YOU WERE MANEUVERING THE BUS INTO THE PARKING AREA THE RIGHT SIDE OF THE BUS COLLIDED WITH THE LEFT FRONT FENDER AND BUMPER OF A VEHICLE LEGALLY PARKED BELONGING TO SERGEANT ELIZABETH MILLS. THE OWNER OF THE VEHICLE TOGETHER WITH AN MP SERGEANT IMMEDIATELY APPEARED AND ACCORDING TO YOUR STATEMENT THE MP SERGEANT TOLD YOU THAT THE OWNER OF THE DAMAGED CAR WOULD HAVE TO BE REIMBURSED FOR HER LOSSES BY YOU FROM YOUR OWN FUNDS.

B-152070, OCT. 3, 1963

TO PFC. CLYDE BYRD, JR.:

YOUR CLAIM IN THE AMOUNT OF $71.95, FOR REIMBURSEMENT OF EXPENSES PAID BY YOU FOR DAMAGES SUSTAINED TO A PRIVATELY-OWNED VEHICLE IN AN ACCIDENT IN WHICH YOU WERE INVOLVED AS THE DRIVER OF AN ARMY BUS, HAS BEEN REFERRED TO THIS OFFICE BY THE DEPARTMENT OF THE ARMY FOR CONSIDERATION AND POSSIBLE ACTION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236.

THE RECORD BEFORE THIS OFFICE SHOWS THAT ON SEPTEMBER 22, 1962, AT FORT MCCLELLAN, ALABAMA, YOU WERE DISPATCHED WITH A 37-PASSENGER BUS FROM THE POST MOTOR POOL TO PICK UP A GROUP OF WAC TRAINEES FOR TRANSPORTATION FROM THEIR BARRACKS TO ANOTHER AREA OF THE POST. AS YOU WERE MANEUVERING THE BUS INTO THE PARKING AREA THE RIGHT SIDE OF THE BUS COLLIDED WITH THE LEFT FRONT FENDER AND BUMPER OF A VEHICLE LEGALLY PARKED BELONGING TO SERGEANT ELIZABETH MILLS. THE OWNER OF THE VEHICLE TOGETHER WITH AN MP SERGEANT IMMEDIATELY APPEARED AND ACCORDING TO YOUR STATEMENT THE MP SERGEANT TOLD YOU THAT THE OWNER OF THE DAMAGED CAR WOULD HAVE TO BE REIMBURSED FOR HER LOSSES BY YOU FROM YOUR OWN FUNDS. ASSUMING THAT IT WAS YOUR RESPONSIBILITY TO TAKE CARE OF THE REPAIRS TO THE DAMAGED AUTOMOBILE, YOU PAID THE REPAIR BILL IN THE AMOUNT OF $71.95. YOUR CLAIM FOR REIMBURSEMENT FOR THE AMOUNT PAID BY YOU WAS FILED WITH THE COMMANDING OFFICER, FORT MCCLELLAN, UPON DISCOVERY THAT SERGEANT MILLS COULD HAVE OBTAINED REDRESS BY FILING A CLAIM WITH THE GOVERNMENT WHICH HAD, UNDER LAW, ASSUMED THE TORT LIABILITY OF ITS EMPLOYEES WHEN THE DAMAGE OCCURRED WHILE THE EMPLOYEE WAS ACTING IN LINE OF DUTY.

THE DEPARTMENT OF THE ARMY SUBMITTED THE MATTER OF YOUR CLAIM TO THIS OFFICE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT FOR THE REASON THAT NO APPROPRIATION WAS AVAILABLE TO REIMBURSE YOU FOR THE AMOUNT PAID BY YOU. THIS ACT, APPEARING IN TITLE 31, SECTION 236 OF THE UNITED STATES CODE, PROVIDES IN EFFECT THAT A CLAIM FILED IN THIS OFFICE WHICH MAY NOT BE PAID BY USE OF AN APPROPRIATION ACT BUT WHICH IN THE JUDGMENT OF THE COMPTROLLER GENERAL CONTAINS ELEMENTS OF LEGAL LIABILITY OR EQUITY DESERVING OF THE CONSIDERATION OF THE CONGRESS MAY BE SUBMITTED TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND RECOMMENDATIONS THEREON. ACCORDINGLY, IN ORDER THAT YOUR CLAIM MAY BE SUBMITTED TO THE CONGRESS FAVORABLY UNDER THIS ACT, OUR OFFICE MUST FIND IN THE CLAIM ELEMENTS OF (1) LEGAL LIABILITY, OR (2) EQUITY, DESERVING THE CONSIDERATION OF THE CONGRESS.

YOUR CLAIM AROSE OUT OF CIRCUMSTANCES INVOLVING THE DAMAGE TO A PRIVATELY OWNED VEHICLE BY YOUR NEGLIGENT OPERATION OF AN ARMY BUS WHILE IN THE PERFORMANCE OF YOUR DUTY. IN THIS SITUATION YOU WOULD BE LIABLE FOR DAMAGE TO THE VEHICLE ON THE BASIS OF YOUR WRONGFUL ACT (TORT) AND IT WOULD MAKE NO DIFFERENCE WHETHER YOU WERE DRIVING A GOVERNMENT VEHICLE OR YOUR OWN. UNDER THE MASTER AND SERVANT DOCTRINE A SERVANT IS LIABLE FOR HIS WRONGFUL ACTS EVEN IF SUCH WRONGFUL ACTS ARE COMMITTED WHILE PERFORMING SERVICES FOR HIS MASTER. 57 CJS, MASTER AND SERVANT, SEC. 577.

IN 1948, THERE WAS ENACTED THE FEDERAL TORT CLAIMS ACT, APPEARING IN TITLE 28, SECTIONS 2671 AND 2680 OF THE UNITED STATES CODE. THIS LAW IN EFFECT WAIVES THE SOVEREIGN IMMUNITY OF THE UNITED STATES FROM SUITS AND PERMITS CLAIMS AND SUITS TO BE FILED AGAINST THE UNITED STATES FOR PROPERTY DAMAGE, PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENT ACTS OF EMPLOYEES OF THE UNITED STATES WHILE PERFORMING THEIR ASSIGNED DUTIES. THE PAYMENT OF THE DAMAGES TO THE AUTOMOBILE BY YOU EXTINGUISHED YOUR LEGAL LIABILITY THEREFOR AND THAT OF THE UNITED STATES AND WHILE THE FEDERAL TORT CLAIMS ACT PROVIDED AN ALTERNATE MEANS OF LEGAL REDRESS FOR THE INJURED PARTY, NEITHER THAT ACT NOR ANY OTHER LAW CREATES ANY LIABILITY OF THE UNITED STATES FOR REIMBURSEMENT TO YOU.

OUR OFFICE IN PAST DECISIONS HAS HELD THE MERITORIOUS CLAIMS ACT AS NOT APPLICABLE FOR USE IN THOSE CLAIMS ARISING BY REASON OF THE NEGLIGENCE ON THE PART OF EMPLOYEES OF THE UNITED STATES. SEE 34 COMP. GEN. 490. THE REASON FOR THIS RULE IS THAT THE NEGLIGENCE ASPECT NEGATES ANY ELEMENT OF EQUITY IN THE CLAIM AND PREVENTS ITS CONSIDERATION UNDER THE ACT.

IN CONCLUSION WE FIND THAT THE PAYMENT MADE BY YOU TO BE IN SATISFACTION OF YOUR OWN LEGAL RESPONSIBILITY FOR THE ACCIDENT AND CONSEQUENTLY THERE ARE NO ELEMENTS OF LEGAL LIABILITY OR EQUITY WHICH WOULD WARRANT THIS OFFICE SUBMITTING YOUR CLAIM TO THE CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT REFERRED TO ABOVE. WEARE ADVISING THE DEPARTMENT OF THE ARMY OF THE DISPOSITION OF YOUR CLAIM. NOTHING HEREIN NEED BE CONSTRUED AS IN ANY WISE PREVENTING YOU FROM SEEKING PRIVATE RELIEF LEGISLATION FOR THE EXPENDITURE MADE.