A-19888, OCTOBER 24, 1927, 7 COMP. GEN. 284

A-19888, OCTOBER 24, 1927, 7 COMP. GEN. 284

MILEAGE - USE OF OWN AUTOMOBILE - REPAIRS THE ALLOWANCE OF MILEAGE TO AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE FOR THE USE OF HIS PERSONALLY OWNED AUTOMOBILE ON OFFICIAL TRAVEL, AS AUTHORIZED BY THE ACT OF MAY 11, 1926, 44 STAT. 530, IS A COMMUTATION OF THE EXPENSE OF OPERATING SUCH AUTOMOBILE AND PRECLUDES ANY ADDITIONAL ALLOWANCE ON AN ACTUAL-EXPENSE BASIS FOR REPAIRS THERETO INCIDENT TO SUCH TRAVEL. THE PROVISION IN THE ACT OF MARCH 4, 1913, 37 STAT. 843, AUTHORIZING REIMBURSEMENT FOR HORSES, EQUIPMENT, ETC., LOST, DAMAGED, OR DESTROYED WHILE BEING USED FOR OFFICIAL BUSINESS IN THE FIELD WORK OF THE FOREST SERVICE, IS NOT APPLICABLE TO DAMAGE TO THE AUTOMOBILE OF AN EMPLOYEE IN THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF AGRICULTURE SUSTAINED WHILE THE EMPLOYEE WAS TRAVELING ON BUSINESS INCIDENT TO THE WORK OF THE BUREAU OF ANIMAL INDUSTRY.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 24, 1927:

THE SECRETARY OF AGRICULTURE REQUESTED SEPTEMBER 15, 1927, REVIEW OF SETTLEMENT NO. K-12788, DATED AUGUST 19, 1927, WHEREIN CREDIT FOR $8.49 WAS DISALLOWED IN THE ACCOUNT OF A. ZAPPONE, DISBURSING OFFICER, DEPARTMENT OF AGRICULTURE, FOR THE QUARTER ENDED MARCH 31, 1927, ON ACCOUNT OF AN ALLEGED UNAUTHORIZED PAYMENT TO A. J. DECKER, AN EMPLOYEE OF SAID DEPARTMENT, ON VOUCHER NO. 137876.

THE PAYMENT IN QUESTION APPEARS TO HAVE BEEN MADE ON AN APPROVED VOUCHER IN LIQUIDATION OF SAID EMPLOYEE'S CLAIM UNDER THE PROVISIONS OF THE ACT OF MARCH 4, 1913, 37 STAT. 843, FOR DAMAGES RESULTING FROM THE FREEZING AND BURSTING OF THE RADIATOR OF HIS FORD AUTOMOBILE WHILE IT WAS BEING USED BY HIM ON DECEMBER 2, 1926, IN TRAVELING ON GOVERNMENT BUSINESS FOR THE BUREAU OF ANIMAL INDUSTRY, DEPARTMENT OF AGRICULTURE, WHICH NECESSITATED THE EXPENDITURE OF $8.49 IN THE PURCHASE OF A NEW RADIATOR FOR THE CAR.

IN HIS REQUEST FOR REVIEW THE SECRETARY STATES:

ON DECEMBER 2, 1926, MR. DECKER WAS ORDERED TO PROCEED TO BELTSVILLE, MARYLAND, FOR THE PURPOSE OF LOCATING CERTAIN BOUNDARY LINES TO A TRACT OF LAND RECENTLY ACQUIRED BY THE UNITED STATES IN THE VICINITY OF BELTSVILLE, MARYLAND. THIS PARTICULAR TRACT IS SO LOCATED AS TO BE INACCESSIBLE BY RAILROAD, AS IT IS SEVERAL MILES BACK IN THE WOODS AWAY FROM MAIN ROADS.

AS STATED IN THE EXPLANATION SUBMITTED BY MR. DECKER UNDER DATE OF JUNE 29, 1927, THE RADIATOR OF HIS CAR HAD BEEN SUPPLIED WITH AN ANTIFREEZE MIXTURE BEFORE LEAVING WASHINGTON, D.C. THE CAR HAD BEEN DRIVEN A GREAT DEAL OF THE TIME IN LOW GEAR, CAUSING THE RADIATOR TO BOIL AND THE CONSEQUENT LOSS OF THE ANTIFREEZE MIXTURE. UPON ARRIVAL AT THE NEAREST POINT TO THE PLACE WHERE EFFORT WAS MADE TO LOCATE THE BOUNDARY LINES, IT WAS NECESSARY FOR MR. DECKER TO PARK HIS CAR IN THE WOODS ADJACENT TO WHERE HE WAS WORKING FOR SEVERAL HOURS. APPARENTLY DURING THIS TIME, THE WATER IN THE RADIATOR BECAME COLD, AND ON THE RETURN TRIP TO WASHINGTON, THE RADIATOR FROZE WHILE RUNNING. IT IS A WELL KNOWN FACT THAT THE RADIATOR OF A FORD CAR WILL FREEZE WHILE RUNNING, DUE TO THE FACT THAT THIS TYPE OF CAR IS NOT EQUIPPED WITH A WATER PUMP.

BY REFERENCE TO WEATHER REPORTS, IT WILL BE OBSERVED THAT DECEMBER 2, 1926, WAS A VERY COLD DAY, SHOWING THE LOWEST TEMPERATURE TO BE 26 DEGREES. IN ADDITION, THERE WAS A VERY STRONG NORTHWEST WIND, WITH A VELOCITY OF APPROXIMATELY 35 MILES AN HOUR. IT WAS IMPOSSIBLE FOR MR. DECKER TO PURCHASE ADDITIONAL ANTIFREEZE SOLUTION FOR HIS CAR IN THE LOCALITY WHERE HE WAS WORKING, AND UNDER THE CIRCUMSTANCES IT IS SUBMITTED THAT MR. DECKER WAS NOT GUILTY OF GROSS NEGLIGENCE.

IN THE DISALLOWANCE, ATTENTION IS CALLED TO THE FACT THAT THERE WAS NO CONTRACT PROVIDING FOR REIMBURSEMENT FOR DAMAGES. REIMBURSEMENT IN THE PRESENT INSTANCE IS NOT BASED ON CONTRACT BUT IS CLAIMED UNDER THE PROVISIONS OF THE ACT OF MARCH 4, 1913 (37 STAT. 843). THE REQUIREMENT THAT THERE BE A BONA FIDE CONTRACT OF HIRE BEFORE REIMBURSEMENT MAY BE MADE (21 COMP. DEC. 153) WAS MET BY MR. DECKER'S LETTER OF AUTHORIZATION NO. 782A, DATED NOVEMBER 29, 1926, WHICH PROVIDED FOR THE USE OF HIS AUTOMOBILE AND REIMBURSEMENT FOR SUCH USE AT THE RATE OF 7 CENTS PER MILE.

PARAGRAPH 60 OF THE FISCAL REGULATIONS OF THE DEPARTMENT PROVIDES THAT THE SECRETARY MAY APPROVE ANY CLAIM FOR REIMBURSEMENT OF AN EMPLOYEE FOR DAMAGES TO HIS PERSONALLY OWNED PROPERTY, WHERE SUCH PROPERTY HAS BEEN DAMAGED WHILE BEING USED ON OFFICIAL BUSINESS. THIS CLAIM HAS BEEN APPROVED BY THE SECRETARY.

THE INVOLVED CLAIM FOR DAMAGES APPEARS TO HAVE BEEN BASED UPON AN ERRONEOUS CONCEPTION AS TO THE SCOPE AND EFFECT OF THE SAID ACT OF MARCH 4, 1913, 37 STAT. 843, WHICH AUTHORIZES THE SECRETARY OF AGRICULTURE TO REIMBURSE OWNERS OF HORSES, VEHICLES, AND OTHER EQUIPMENT LOST, DAMAGED, OR DESTROYED WHILE BEING USED "FOR NECESSARY FIRE FIGHTING, TRAIL, OR OFFICIAL BUSINESS" IN THE FIELD WORK OF THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE. THE CLAIM IN THIS CASE DID NOT ARISE UNDER THE PROVISION IN QUESTION, AS CLAIMANT'S SERVICES WHILE TRAVELING FOR THE GOVERNMENT ON DECEMBER 2, 1926, WERE NOT CONNECTED WITH THE FOREST SERVICE. THE PAYMENT OF $8.49 TO THE CLAIMANT FOR DAMAGES UNDER SAID ACT, THEREFORE, WAS ILLEGAL AND UNAUTHORIZED.

IT APPEARING THAT PARAGRAPH 60 OF THE FISCAL REGULATIONS OF THE DEPARTMENT OF AGRICULTURE, MENTIONED IN ABOVE-QUOTED REQUEST OF THE SECRETARY, RELATES WHOLLY TO THE DAMAGES ALLOWABLE UNDER THE ACT OF MARCH 4, 1913, SUPRA, SAME IS NOT APPLICABLE TO THE CLAIM HERE INVOLVED.

THE TRAVEL PERFORMED BY THE CLAIMANT ON DECEMBER 2, 1926, ON OFFICIAL BUSINESS FOR THE BUREAU OF ANIMAL INDUSTRY, DEPARTMENT OF AGRICULTURE, OBVIOUSLY WAS MADE UNDER AUTHORITY OF THE ACT OF MAY 11, 1926, 44 STAT. 530, WHICH PROVIDES THAT:

WHENEVER, DURING THE FISCAL YEAR ENDING JUNE 30, 1927, THE SECRETARY OF AGRICULTURE SHALL FIND THAT THE EXPENSES OF TRAVEL, INCLUDING TRAVEL AT OFFICIAL STATIONS, CAN BE REDUCED THEREBY, HE MAY, IN LIEU OF ACTUAL OPERATING EXPENSES, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, AUTHORIZE THE PAYMENT OF NOT TO EXCEED 3 CENTS PER MILE FOR MOTOR CYCLE OR 7 CENTS PER MILE FOR AN AUTOMOBILE, USED FOR NECESSARY TRAVEL ON OFFICIAL BUSINESS.

IT APPEARS THAT THE ACTING CHIEF OF THE BUREAU OF ANIMAL INDUSTRY, ON NOVEMBER 29, 1926, IN WRITING, AUTHORIZED A. J. DECKER, AN ATTORNEY IN THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF AGRICULTURE, TO INCUR SUCH EXPENSES AS MIGHT BE NECESSARY IN THE PERFORMANCE OF TRAVEL FOR SAID BUREAU TO VARIOUS POINTS IN MARYLAND ON BUSINESS FOR THE GOVERNMENT. SUCH TRAVEL AUTHORIZATION PROVIDED THAT THE TRAVELER WOULD BE REIMBURSED FOR THE USE OF HIS PERSONALLY OWNED AUTOMOBILE AT THE RATE OF 7 CENTS PER MILE AND THAT HE WOULD BE ALLOWED ACTUAL SUBSISTENCE EXPENSES IN CONNECTION WITH THE TRAVEL AUTHORIZED.

INASMUCH AS THE AUTHORIZED TRAVEL OF A. J. DECKER ON DECEMBER 2, 1926, IN HIS OWN AUTOMOBILE ON OFFICIAL BUSINESS OF THE GOVERNMENT WAS ON A MILEAGE BASIS AT THE RATE OF 7 CENTS PER MILE FOR THE NUMBER OF MILES NECESSARILY TRAVELED IN PERFORMANCE OF THE WORK UPON WHICH HE WAS ENGAGED, SAID EMPLOYEE IS NOT ENTITLED TO ANY ADDITIONAL PAY INCIDENT TO SUCH USE ON ACCOUNT OF EXPENSES INCURRED IN REPAIRING HIS AUTOMOBILE. THE ALLOWANCE OF MILEAGE TO AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE FOR THE USE OF HIS PERSONALLY OWNED AUTOMOBILE ON OFFICIAL TRAVEL AS AUTHORIZED BY THE ACT OF MAY 11, 1926, 44 STAT. 530, IS A COMMUTATION OF THE EXPENSE OF OPERATING SUCH AUTOMOBILE AND PRECLUDES ANY ADDITIONAL ALLOWANCES ON AN ACTUAL EXPENSE BASIS FOR THE REPAIR OF SAID AUTOMOBILE INCIDENT TO SUCH TRAVEL. IN USING HIS PERSONALLY OWNED CAR ON A MILEAGE BASIS OF PAYMENT FOR THE TRAVEL EXPENSES THE EMPLOYEE ASSUMES ALL THE EXPENSES OF OPERATING THE CAR AND OF THE REPAIRS THEREON. IN THIS CONNECTION SEE 2 COMP. GEN. 809, AND DECISION OF SEPTEMBER 27, 1927, A-19683.

THE SETTLEMENT DISALLOWING CREDIT IN THE DISBURSING OFFICER'S ACCOUNT WAS CORRECT AND MUST BE AND IS SUSTAINED.