B-166504, JUN. 25, 1969

B-166504, JUN. 25, 1969

TO FRANK, BERNSTEIN, CONAWAY AND GOLDMAN:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1969, ADDRESSED TO THE DIRECTOR, CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE,IN WHICH YOU ASKED REVIEW OF THE SETTLEMENT OF THE CLAIM OF CHESAPEAKE FORD TRUCK SALES, INC., DATED FEBRUARY 18, 1969.

THIS CLAIM WAS FOR REIMBURSEMENT FOR THE EXPENSE OF $907.52 FOR THE REPLACEMENT OF TIRES, TUBES AND RIMS STOLEN FROM TRUCK TRACTOR, FORD, MODEL F759, U.S.A. REGISTRY 1S9453, WHILE IT WAS IN THE POSSESSION OF CHESAPEAKE FORD TRUCK SALES, INC., PURSUANT TO A TRANSFER FROM THE COMBINED SUPPORT MAINTENANCE SHOP, MARYLAND ARMY NATIONAL GUARD, STATE MILITARY RESERVATION, HAVRE DE GRACE, MARYLAND, FOR REPAIRS UNDER A WARRANTY AGREEMENT.

THE ADMINISTRATIVE REPORT ON THE PRESENT INCIDENT STATES THAT THE COMBINED SUPPORT MAINTENANCE SHOP TRANSFERRED THE VEHICLE WITH TIRES, TUBES AND RIMS TO THE CLAIMANT ON DECEMBER 10, 1967, TO HAVE THE LOW VOLTAGE CONVERTER REPAIRED UNDER THE WARRANTY AGREEMENT. ON DECEMBER 26, 1967, THE CLAIMANT TELEPHONED THE FACILITY AND INFORMED ITS PERSONNEL THAT THE FOUR REAR TIRES, TUBES AND RIMS HAD BEEN STOLEN FROM THE TRUCK WHILE IN THE CLAIMANT'S POSSESSION. ON DECEMBER 28, 1967, THE CLAIMANT AGAIN TELEPHONE THE FACILITY AND OFFERED TO REPLACE THE STOLEN ITEMS AND REQUESTED SPECIFICATIONS WHICH WOULD BE ACCEPTABLE. NO MENTION OF LIABILITY WAS MADE. ON JANUARY 17, 1968, THE VEHICLE WAS RETURNED TO THE FACILITY, INSPECTED AND ACCEPTED.

IN YOUR LETTER YOU REFERRED TO THE LAW WITH RESPECT TO THE LOSS BY THEFT OF BAILED PROPERTY WHILE IN THE POSSESSION OF THE BAILEE, INDICATING THAT THE OWNER OF THE PROPERTY MUST PROVE NEGLIGENCE ON THE PART OF THE BAILEE TO RECOVER THE PROPERTY STOLEN WHILE IN THE POSSESSION OF THE BAILEE. APPEARS THAT THIS IS A CORRECT STATEMENT OF THE LAW. HOWEVER, IT IS ALSO APPARENT THAT THE QUESTION AS TO WHETHER THE UNITED STATES COULD PROVE NEGLIGENCE ON THE PART OF YOUR CLIENT COULD BE RESOLVED ONLY BY TRIAL. ANY EVENT, WHETHER NEGLIGENCE COULD BE PROVED OR NOT IS IMMATERIAL. THE CONTROLLING FACTOR IN THIS SITUATION IS THE LEGAL CONSEQUENCE OF THE CLAIMANT'S ACT IN VOLUNTARILY REPLACING THE STOLEN ITEMS. IN YOUR LETTER YOU STATED THAT: "* * * HOWEVER, NOTWITHSTANDING THIS LAW AND NOTWITHSTANDING THE FACT THAT THE BURDEN TO PRESENT THE CLAIM WOULD BE UPON THE GOVERNMENT, OUR CLIENT, OF ITS OWN VOLITION, REPLACED THESE GOODS. * * *" THE LAW IS WELL SETTLED THAT A VOLUNTEER, WHO PAYS AN OBLIGATION, WHEN HE IS UNDER NO LEGAL OBLIGATION TO MAKE PAYMENT AND WHO IS NOT REQUIRED TO MAKE PAYMENT TO PRESERVE HIS OWN RIGHTS OR PROPERTY IS IN NO POSITION TO DEMAND PAYMENT FROM ANYONE. 18 COMP. GEN. 424, 425. UNITED STATES V D.L. TAYLOR CO., 268 F. 635, 648-650. ALSO, THE FACT THAT THE CLAIMANT VOLUNTARILY REPLACED THE GOODS AND MADE NO MENTION OF EXPECTED REIMBURSEMENT OF THE COST OR OF LIABILITY FOR THE LOSS, HAD THE EFFECT OF DENYING THE GOVERNMENT AN OPPORTUNITY TO DETERMINE FOR ITSELF WHETHER ANY OBLIGATION RESTED UPON IT WITH REGARD TO THE REPLACEMENT OF THE GOODS, OR OF PROCURING THE ITEMS IN QUESTION ITSELF -- PROBABLY AT LOWER COST -- IF IT DID HAVE THE OBLIGATION TO DO SO. THE CLAIMANT HAD NO AUTHORITY OR RIGHT EITHER TO DETERMINE THE GOVERNMENT'S LIABILITY IN THIS REGARD OR, IF THE EXISTENCE OF LIABILITY BE CONCEDED, TO ARRANGE FOR ITS LIQUIDATION. 18 COMP. GEN. 424, 425. IT IS WELL SETTLED THAT NO PERSON, BY HIS VOLUNTARY ACT, MAY CONSTITUTE THE GOVERNMENT HIS DEBTOR, 17 COMP. GEN. 530, 532; UTICA, ITHACA AND ELMIRA RAILWAY CO. V UNITED STATES, 22 CT. CL. 265.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 18, 1969, DISALLOWING THE CLAIM IS SUSTAINED.