B-148944, JUN. 13, 1962

B-148944, JUN. 13, 1962

TO MR. CHARLES C. DARNEY:

REFERENCE IS MADE TO YOUR LETTERS DATED MAY 11 AND 14, 1962, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT Z 2135490, MARCH 12, 1962, WHICH DISALLOWED YOUR CLAIM FOR $3,663.49 ALLEGED TO BE DUE ON ACCOUNT OF DAMAGES TO ELECTRICAL MATERIAL STORED AT ABERDEEN PROVING GROUND WHILE PERFORMING WORK AS A SUBCONTRACTOR UNDER CONTRACT NO. DA-18- 001-509-ORD-5249.

THE RECORD BEFORE US DISCLOSES THE FOLLOWING FACTS: A CONSTRUCTION CONTRACT FOR REROOFING AND LIGHTING OF BUILDINGS 314, 315 AND 315A, ABERDEEN PROVING GROUND, WAS AWARDED TO THE ARBUTUS CONTRACTING COMPANY, BALTIMORE, MARYLAND, ON APRIL 22, 1959. YOUR FIRM WAS THE SUBCONTRACTOR FOR THE ELECTRICAL WORK. DURING THE PERFORMANCE OF THE WORK YOUR REPRESENTATIVE REQUESTED STORAGE SPACE FROM THE POST ENGINEERING DEPARTMENT. PERMISSION TO USE BUILDING 315A AS A STORAGE AREA WAS GRANTED BY GOVERNMENT PERSONNEL. NO CONSIDERATION WAS RECEIVED BY THE GOVERNMENT FOR THE USE OF BUILDING 315A AND STORAGE OF YOUR MATERIALS WAS MERELY A PERMISSIVE USE OF THE PREMISES. IT FURTHER APPEARS THAT THE GOVERNMENT LOCK ON THE BUILDING WAS TAKEN OFF AND REPLACED BY YOU WITH YOUR OWN LOCK AT THE TIME THE MATERIALS WERE PLACED IN THE BUILDING. SUBSEQUENT TO JANUARY 22, 1960, A PERSON, OR PERSONS, UNKNOWN FORCEFULLY ENTERED BUILDING 315A AND DAMAGED SOME OF THE STORED ELECTRICAL SUPPLIES.

IN YOUR LETTER OF MAY 14, 1962, YOU STATE THAT ALTHOUGH YOUR OWN LOCK WAS USED ON THE BUILDING, THE LOCK WAS INTACT AFTER THE BUILDING WAS BROKEN INTO AND THE MATERIAL THEREIN WAS DAMAGED AND THAT ENTRY WAS NOT MADE INTO THE BUILDING BY USE OF THE DOOR BUT BY BREAKING THROUGH THE WINDOWS OF THE BUILDING.

AFTER THE DAMAGE WAS DISCOVERED THE MATTER WAS REFERRED TO THE FEDERAL BUREAU OF INVESTIGATION. HOWEVER, THE RECORD INDICATES THAT THE IDENTITY OF THE PERSON, OR PERSONS, ENTERING THE BUILDING HAS NOT BEEN DISCOVERED.

IN YOUR LETTER OF MAY 11, 1962, YOU STATE THAT THE CONTRACT UNDER WHICH YOU WERE PERFORMING WORK WAS SUSPENDED BY A STOP ORDER DURING A STEEL STRIKE AND THAT THIS RESULTED IN THE NECESSITY TO HAVE THE MATERIALS STORED UNTIL THE STOP ORDER WAS RESCINDED. YOU CONTEND THAT A BAILMENT WAS CREATED BY THE POST ENGINEERING DEPARTMENT'S ACCEPTANCE OF THE GOODS FOR STORAGE AND IT WAS FOR THE GOVERNMENT'S BENEFIT TO HAVE THE MATERIALS STORED IN A SAFE PLACE. YOU ALLEGE THAT BASE PERSONNEL WERE NEGLIGENT IN NOT PROVIDING FOR SAFEGUARDING OF THE STORAGE BUILDING IN QUESTION.

THE CIRCUMSTANCES OUTLINED ABOVE PRESENT TWO QUESTIONS FOR OUR CONSIDERATION. FIRST, DID THE STORAGE OF YOUR GOODS IN BUILDING 315A CONSTITUTE A BAILMENT SO AS TO IMPOSE UPON THE GOVERNMENT A BAILEE'S DUTY OF CARE TOWARD THEM? AND, SECONDLY, IF A BAILMENT DID RESULT, DID THE GOVERNMENT BREACH ITS DUTY OF DUE CARE?

ON THE FACTS PRESENTED BEFORE US WE DO NOT BELIEVE THAT STORAGE OF YOUR GOODS RESULTED IN A BAILMENT. TO CONSTITUTE A BAILMENT, THERE MUST BE A FULL DELIVERY OF THE BAILED PROPERTY TO THE BAILEE. THE SUFFICIENCY OF DELIVERY NECESSARY TO SUPPORT A FINDING OF BAILMENT HAS BEEN DESCRIBED IN 8 C.J.S. BAILMENTS SEC. 15A (2) AS FOLLOWS:

"SUCH A FULL DELIVERY OF THE SUBJECT MATTER MUST BE MADE TO THE BAILEE AS WILL ENTITLE HIM TO EXCLUDE FOR THE TIME OF THE BAILMENT THE POSSESSION OF THE OWNER AND ALL OTHER PERSONS, GIVE THE BAILEE SOLE CUSTODY AND CONTROL, MAKE HIM LIABLE TO THE OWNER AS THE SOLE CUSTODIAN OF THE PROPERTY IN THE EVENT OF HIS NEGLECT OR FAULT IN DISCHARGING HIS TRUST WITH RESPECT TO THE SUBJECT MATTER, AND REQUIRE A REDELIVERY OF IT BY HIM TO THE OWNER OR OTHER PERSON ENTITLED TO RECEIVE IT AFTER THE TRUSTS OF THE BAILMENT HAVE BEEN DISCHARGED. * * *"

SEE, ALSO, BROADDUS V. COMMERCIAL NAT. BANK OF MUSKOGEE, 237 P. 583, AND MARSH V. AMERICAN LOCKER CO., 72 A. 2D 343, AFFIRMED 77 A.2D 315. IN THE BROADDUS CASE IT WAS HELD THAT A LANDLORD OF AN OFFICE BUILDING WHO FURNISHED JANITOR SERVICE TO HIS TENANTS AND WHO HAD KEYS AND ACCESS TO THE TENANTS' OFFICES AT ALL TIMES OUTSIDE OF OFFICE HOURS WAS NOT A BAILEE OF THE OFFICES AND CONTENTS DURING SUCH TIME SINCE THE TENANTS AND THEIR EMPLOYEES POSSESSED KEYS AND HAD ACCESS OF THE OFFICES AT ALL TIMES. THE COURT NOTED THAT "ONE OF THE NECESSARY ELEMENTS OF A CONTRACT FOR BAILMENT IS FATALLY ABSENT, TO WIT, SUCH A DELIVERY TO THE BAILEES AS WOULD ENTITLE THEM TO EXCLUDE FOR THE PERIOD OF THE BAILMENT THE POSSESSION THEREOF, EVEN OF THE OWNER.'

UNDER THE FACTS OF THE INSTANT CASE, IT CANNOT BE SAID THAT THE GOVERNMENT IN GRANTING PERMISSION TO STORE THE ELECTRICAL SUPPLIES IN ITS BUILDING ASSUMED THE RESPONSIBILITIES OF A BAILEE. THE ORIGINAL LOCK ON THE BUILDING WAS REMOVED AND REPLACED BY YOU WITH YOUR OWN LOCK. SO FAR AS APPEARS IN THE RECORD YOU HAD EXCLUSIVE ACCESS TO THE BUILDING AND PRIMARY CONTROL OVER ITS CONTENTS. CLEARLY YOU DID NOT MAKE SUCH A DELIVERY OF THE SUPPLIES TO THE GOVERNMENT AS WOULD ENTITLE IT TO EXCLUDE YOU FROM POSSESSION OF THEM. CONTROL AND POSSESSION REMAINED IN YOU EVEN THOUGH THE GOVERNMENT OWNED THE BUILDING AND HAD CONTROL OF THE GROUNDS UPON WHICH THE BUILDING WAS SITUATED.

EVEN IF WE ASSUME ARGUENDO THAT A BAILMENT RELATIONSHIP EXISTED, WE DO NOT THINK THE GOVERNMENT BREACHED ANY DUTY OF CARE IT MAY HAVE ASSUMED TOWARD YOUR SUPPLIES. AT MOST, THE BAILMENT, IF IT EXISTED, WAS A GRATUITOUS ONE IMPOSING UPON THE BAILEE RESPONSIBILITY ONLY FOR GROSS NEGLECT OR BAD FAITH. 8 C.J.S. BAILMENTS SEC. 28, AND DECISIONS THEREIN CITED. SEE, ALSO, KNOWLES V. ATLANTIC AND ST. LAWRENCE R.R.CO., 61 AM.DEC. 234, WHERE IT WAS HELD THAT WHEN THE BAILOR NOT ONLY KNOWS THE GENERAL CHARACTER AND HABITS OF THE BAILEE, BUT THE PLACE WHERE AND THE MANNER IN WHICH THE GOODS DEPOSITED ARE TO BE KEPT BY HIM, HE MUST BE PRESUMED TO ASSENT, IN ADVANCE, THAT HIS GOODS SHALL BE THUS TREATED; AND IF UNDER SUCH CIRCUMSTANCES THEY ARE DAMAGED OR LOST, IT IS BY REASON OF HIS OWN FAULT OR FOLLY. ACCORD: 6 AM.JUR. (REVED), BAILMENTS SEC. 259; 8 C.J.S. BAILMENTS SEC. 28A.

IN YOUR LETTER OF MAY 11, 1962, YOU CONTEND THAT BASE PERSONNEL WERE NEGLIGENT IN NOT PROVIDING FOR SAFEGUARDING OF THE STORAGE BUILDING WHEN THERE EXISTED A PAST HISTORY OF VANDALISM BY CHILDREN ON THE ARMY POST. THE RECORD DOES NOT DISCLOSE THE PERSON, OR PERSONS, RESPONSIBLE FOR THE DAMAGE TO YOUR SUPPLIES BUT EVEN IF IT WERE ESTABLISHED THAT THE DAMAGE WAS CAUSED BY CHILDREN ON THE ARMY POST IT MUST BE ASSUMED THAT YOU WERE AS MUCH AWARE OF THIS SITUATION AS WERE PERSONNEL OF THE POST. INDEED, YOUR ACTION IN REPLACING THE LOCK ON THE STORAGE BUILDING INDICATES SOME DEGREE OF CONCERN ON YOUR PART AS TO THE ADEQUACY OF THE BUILDING'S SECURITY FEATURES. YOU DO NOT CONTEND THAT YOU EITHER REQUESTED ADDITIONAL SECURITY PERSONNEL FOR THE PROTECTION OF THE BUILDING OR RECEIVED ASSURANCE FROM THE GOVERNMENT THAT SUCH PERSONNEL WOULD BE POSTED FOR SUCH PURPOSE. THE GOVERNMENT MERELY GRANTED PERMISSION, FOR YOUR CONVENIENCE, TO STORE YOUR SUPPLIES AND UNDERTOOK NO RESPONSIBILITY FOR THEIR SAFEKEEPING. UNDER SUCH CIRCUMSTANCES IT MUST BE CONCLUDED THAT THE GOVERNMENT WAS ENTIRELY FREE FROM NEGLIGENCE WITH RESPECT TO THE DAMAGE TO YOUR SUPPLIES AND YOU MUST BE HELD TO HAVE ASSUMED ANY RISK FOR LOSS OR DAMAGE THERETO.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR ALLOWING YOUR CLAIM AND THE SETTLEMENT OF MARCH 12, 1962, MUST BE, AND IS, AFFIRMED.