B-156107, APR. 1, 1965

B-156107: Apr 1, 1965

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BOTH OF WHOM ARE NOW DECEASED. WAS DAMAGED BY THE CRASH OF A KENTUCKY AIR NATIONAL GUARD AIRPLANE ON OCTOBER 30. THERE WAS NO LEGISLATION IN EXISTENCE AT THAT TIME WHICH WOULD RENDER THE UNITED STATES LIABLE FOR THE DAMAGE IN QUESTION. THAT THEIR CLAIM WAS NOT COGNIZABLE OR PAYABLE BY THE AIR FORCE BUT THAT IT HAD BEEN FORWARDED TO THE STATE OF KENTUCKY FOR APPROPRIATE ACTION. SINCE THIS LAW IS NOT RETROACTIVE. SHALL BE SETTLED UNDER THE REMAINING PROVISIONS OF THE SAID SECTION 715 IF SUCH CLAIM IS PRESENTED IN WRITING WITHIN ONE YEAR AFTER THE DATE OF ENACTMENT OF THIS ACT.'. WHEREIN IT IS STATED THAT NO CLAIM HAS BEEN PRESENTED TO THE AIR FORCE UNDER PRIVATE LAW 88-272. SPENCER THAT "* * * WE WOULD HAVE NO OBJECTION IF YOU WOULD PRESENT THE MATTER TO THE GENERAL ACCOUNTING OFFICE FOR A DECISION AS TO WHETHER SUCH A CLAIM COULD BE PRESENTED BY OTHER THAN THE DECEASED CLAIMANTS.'.

B-156107, APR. 1, 1965

TO THE HONORABLE SECRETARY OF THE AIR FORCE:

BY LETTER OF MARCH 19, 1965, THE HONORABLE LEE H. HAMILTON, HOUSE OF REPRESENTATIVES, FORWARDED TO OUR OFFICE THE CLAIM OF MR. EUGENE S. SPENCER, PRESIDENT, THE FIRST NATIONAL BANK, VEVAY, INDIANA, WITH SUPPORTING DOCUMENTS, FOR DAMAGES TO THE PROPERTY OF MR. AND MRS. BLANTON DARBRO, OF VEVAY, INDIANA, BOTH OF WHOM ARE NOW DECEASED.

THE RECORD BEFORE OUR OFFICE DISCLOSES THAT THE PROPERTY OF MR. AND MRS. DARBRO NEAR VEVAY, INDIANA, WAS DAMAGED BY THE CRASH OF A KENTUCKY AIR NATIONAL GUARD AIRPLANE ON OCTOBER 30, 1957. MR. AND MRS. DARBRO PRESENTED A CLAIM TO THE AIR FORCE ON DECEMBER 6, 1957, FOR DAMAGES TO THEIR PROPERTY IN THE AMOUNT OF $2,647.37. HOWEVER, THERE WAS NO LEGISLATION IN EXISTENCE AT THAT TIME WHICH WOULD RENDER THE UNITED STATES LIABLE FOR THE DAMAGE IN QUESTION. HENCE, THE AIR FORCE ADVISED MR. AND MRS. DARBRO BY LETTER DATED MARCH 11, 1958, THAT THEIR CLAIM WAS NOT COGNIZABLE OR PAYABLE BY THE AIR FORCE BUT THAT IT HAD BEEN FORWARDED TO THE STATE OF KENTUCKY FOR APPROPRIATE ACTION.

SUBSEQUENTLY, BY SECTION 715 OF TITLE 32, U.S.C. AS ADDED BY THE ACT OF SEPTEMBER 13, 1960, PUB.L. 86-740, 74 STAT. 878, THE UNITED STATES ASSUMED RESPONSIBILITY FOR THE PAYMENT OF CLAIMS ARISING ON OR AFTER SEPTEMBER 13, 1960, RESULTING FROM NATIONAL GUARD ACTIVITIES SUCH AS THE FLIGHT HERE INVOLVED. SINCE THIS LAW IS NOT RETROACTIVE, THE CLAIM OF MR. AND MRS. DARBRO COULD NOT BE SETTLED THEREUNDER. HOWEVER, BY THE ACT OF AUGUST 4, 1964, PRIVATE LAW 88-272, THE CONGRESS PROVIDED THAT THE CLAIM HERE IN QUESTION COULD BE SETTLED UNDER THE PROVISIONS OF 32 U.S.C. 715.

PRIVATE LAW 88-272 PROVIDES AS FOLLOWS:

"THAT, NOTWITHSTANDING THE LIMITATIONS OF TIME PRESCRIBED IN CLAUSE (1) SUBSECTION (B) OF SECTION 715 OF TITLE 32 OF THE U.S.C. OR ANY OTHER PROVISION OR DOCTRINE OF LAW, ANY CLAIM BY BLANTON DARBRO AND/OR LUE DARBRO, HIS WIFE, OF VEVAY, INDIANA, FOR DAMAGES AS A RESULT OF THE CRASH OF A KENTUCKY AIR NATIONAL GUARD AIRPLANE ON THEIR PROPERTY ON OR ABOUT OCTOBER 30, 1957, SHALL BE SETTLED UNDER THE REMAINING PROVISIONS OF THE SAID SECTION 715 IF SUCH CLAIM IS PRESENTED IN WRITING WITHIN ONE YEAR AFTER THE DATE OF ENACTMENT OF THIS ACT.'

THERE ALSO HAS BEEN FORWARDED TO OUR OFFICE A COPY OF A LETTER DATED JANUARY 27, 1965, FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE AIR FORCE, TO MR. SPENCER, WHEREIN IT IS STATED THAT NO CLAIM HAS BEEN PRESENTED TO THE AIR FORCE UNDER PRIVATE LAW 88-272. THE LETTER ADVISED MR. SPENCER THAT THE PRIVATE RELIEF ACT AUTHORIZED ONLY MR. AND/OR MRS. DARBRO TO PRESENT A CLAIM FOR THE DAMAGES INVOLVED AND DID NOT AUTHORIZE EITHER HIM, AS PERSONAL REPRESENTATIVE OF THE HEIRS, OR ANYONE ELSE TO PRESENT A CLAIM IN THEIR BEHALF. THE LETTER FURTHER ADVISED MR. SPENCER THAT "* * * WE WOULD HAVE NO OBJECTION IF YOU WOULD PRESENT THE MATTER TO THE GENERAL ACCOUNTING OFFICE FOR A DECISION AS TO WHETHER SUCH A CLAIM COULD BE PRESENTED BY OTHER THAN THE DECEASED CLAIMANTS.' ADDITION, WE WERE FORWARDED A COPY OF A LETTER TO MR. HAMILTON DATED FEBRUARY 3, 1965, FROM YOUR OFFICE OF LEGISLATIVE LIAISON CONVEYING THE SAME INFORMATION AND STATING THAT "* * * IF THE COMPTROLLER GENERAL DETERMINES THAT WE HAVE THE DISCRETION TO AUTHORIZE THE LEGAL REPRESENTATIVES OF THE DARBROS TO PRESENT THE CLAIM, WE WOULD BE GOVERNED ACCORDINGLY.'

IT HAS BEEN THE UNIFORM HOLDING OF THIS OFFICE, AS WELL AS OF THE FORMER ACCOUNTING OFFICERS OF THE GOVERNMENT, THAT THE RIGHT TO RECEIVE A GRATUITY UNDER EITHER A GENERAL STATUTE OR A PRIVATE ACT IS PERSONAL TO THE PERSON OR PERSONS INCLUDED WITHIN THE SCOPE OF THE STATUTE AND LAPSES AT THE DEATH OF SUCH PERSON OR PERSONS AND, THEREFORE, DOES NOT BECOME A PART OF HIS OR THEIR ESTATES SO AS TO FORM THE BASIS OF A VALID CLAIM BY THEIR HEIRS OR PERSONAL REPRESENTATIVES. HOWEVER, IT ALSO HAS BEEN HELD THAT WHERE THERE IS DAMAGE TO PROPERTY ATTRIBUTABLE TO THE UNITED STATES, A RIGHT ARISES IN FAVOR OF THE OWNER OF THE PROPERTY FOR SUCH DAMAGE; THAT IS, THE CLAIM CONTAINS AN ELEMENT OF LEGAL LIABILITY OR EQUITY EVEN THOUGH, AS IN THE PRESENT CASE, THE CLAIM WOULD NOT BE ALLOWABLE EXCEPT FOR THE ENACTMENT OF A PRIVATE ACT. IN SUCH CASES, THE ENACTMENT OF THE PRIVATE ACT IS NOT A GRATUITY BUT IS RATHER A RECOGNITION OF A RIGHT. UNDER THE PROVISIONS OF SECTION 2-403 OF THE INDIANA STATUTES (BURNS ANNOTATED INDIANA STATUTES) A RIGHT OF THE NATURE HERE INVOLVED SURVIVES THE DEATH OF THE PERSON ENTITLED AND MAY BE EXERCISED BY THE REPRESENTATIVE OF THE DECEASED CLAIMANT.

IN VIEW OF THE ABOVE, WE CONCLUDE THAT A CLAIM PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF MR. AND/OR MRS. DARBRO MAY PROPERLY BE CONSIDERED UNDER PRIVATE LAW 88-272. INASMUCH AS PRIVATE LAW 88-272 PROVIDES THAT A CLAIM THEREUNDER "SHALL BE SETTLED UNDER THE REMAINING PROVISIONS" OF 32 U.S.C. 715, WHICH PROVIDES FOR SETTLEMENT OF CLAIMS OF THIS NATURE BY YOU OR YOUR JUDGE ADVOCATE GENERAL, THE CLAIM AND ITS SUPPORTING PAPERS ARE TRANSMITTED HEREWITH FOR CONSIDERATION AND APPROPRIATE ACTION.