LIABILITY of government for DEATH OF HIRED HORSE.

Where a horse hired by the Government dies from overexertion due to being used for a purpose other than that for which hired, the owner is entitled to reimbursement of the value of the horse.

Decision by Comptroller Downey, August 7, 1914:

M. E, Saville, captain, Quartermaster Corps, United States Army, applied, July 29, 1914, for revision of the action of the Auditor for the War Department in disallowing by settlement No. 30818, of April 11, 1914, credit for a payment of $200 made by him to one H. B. Anderson, as representing the value of a horse owned by Anderson, which died July 30, 1912, while being used by the Government in a wagon train of forces engaged in joint maneuvers in Wisconsin.

It appears that the camp quartermaster, by circular of June 24, 1912, advertised for proposals for furnishing draft animals, with a teamster for each 4-line team, from July 24, 1912, to August 5, 1912, it being stated in the circular that each horse must be able to stand the necessary drive of not to exceed 12 miles each day with a load of 3,000 pounds or less for each 4-line team, and that animals furnished would be subject to inspection and acceptance by an officer of the Government. It further appears that in accordance with the circular above mentioned H. B. Anderson proposed to furnish one 2-line team with a teamster for $4 per day and that his proposal was accepted and his team duly inspected and accepted for the service in question.

On August 2, 1912, a board of officers convened to settle claims for damages occurring during the maneuvers above referred to, found that Anderson's horse had died from causes unknown and through no fault of the owner or negligence or fault of responsible parties; that the value of the animal was $200, and that the loss of the horse constituted a just and reasonable claim for damages.

The auditor's disallowance appears to be based principally on the finding of the board above mentioned to the effect that the death of the horse was not due to negligence or fault of responsible parties. The appellant contends, however, that he should be allowed credit for the payment as a proper one, alleging that the death of the horse was the direct result of overexertion caused by its being used in a manner not specified in the advertisement for proposals and the resulting contract of hiring.

From the statement of facts it would appear that the Government was a bailee for hire in this case, the bailment being for the mutual benefit of the parties. It is well settled that under such conditions. a bailee is responsible only for ordinary diligence and liable for ordinary negligence in the care of the property bailed. It is equally

well established, however, that if property bailed is used in a substantially different manner or for a substantially different purpose or for a longer time than was agreed by the parties, responsibility for resultant damages attaches.

In support of his contention above set forth the appellant submits among other evidence the certificates of the members of the board of officers above mentioned, in which it is stated as matter of fact that the team in which Anderson's horse was used was frequently required to haul much more than the maximum load specified in the advertisement (3,000 pounds), sometimes hauling 5,000 pounds for a much greater distance than 12 miles per day; that the roads were very heavy and slippery, and that Anderson's team was also subjected to extra hauling, bringing up food for the soldiers-a rush order over the worst roads imaginable; that when the horse in question came in from one of those extra trips it was worn out and dropped dead shortly thereafter. The officers further state that in their opinion the death of the horse was due to overexertion caused in the manner above indicated, and that so much of the findings which they signed as shows that the horse died from causes unknown should show that only the diagnosis was unknown, there being no veterinarian at hand to make an examination of the horse. The other evidence submitted, including that of the quartermaster who inspected Anderson's team, is of like tenor with reference to excess loads, distance, etc.

An examination of the record of the proceedings of the board in this case shows that it had before it evidence, in the form of affidavits, establishing only the value of the horse and the fact of its death in the service of the Government from causes unknown to the deponents. It would thus appear that so much of the finding of the board as relates to fault, negligence, etc., was based on insufficient evidence. At any rate the accounting officers are not bound by conclusions of the board in question. The evidence now submitted is not in conflict with that considered by the board, but is in addition thereto, and as it appears to be reliable it is accepted as establishing the death of the horse from overexertion resulting from the causes therein stated.

The contract in this case, which appears to have consisted of the advertisement, proposal, and acceptance, provided, as before shown, for a haul of not to exceed 3,000 pounds per 4-line team for not to exceed 12 miles per day. The evidence submitted shows that the team to which Anderson's horse belonged was often required to haul 5,000 pounds for a daily distance of much more than 12 miles, and it does not appear that Anderson was cognizant of these facts. It appears that increasing the weight to be hauled and also the daily distance to such an extent as here shown constituted a use of the

horse for a purpose substantially different from that for which it had been hired, and that the horse's death resulted therefrom. It follows that the Government is liable for the death of the horse and the action of the auditor is accordingly reversed. The decision reported in 18 Comp. Dec., page 902, cited by the auditor, has no bearing on this case.

While there seems to be no room for any other conclusion than that reached as between the claimant and the Government, it is quite apparent that the liability is the result of a violation of the contract of hiring, responsibility for which should be investigated and the burden of payment placed where is belongs.

WAIVER OF OATH IN CASE OF A CLERK TRANSFERRED FROM ONE BUREAU TO ANOTHER IN SAME DEPARTMENT.

A clerk of class 3, Post Office Department, was reappointed and transferred July 16, 1914, from the office of Second Assistant to that of Fourth Assistant Postmaster General. At the time he was absent sick, and he died July 24, 1914, without having taken a new oath or formally accepting the new position. Held, That under the circumstances appearing, payment of salary as a clerk of class 3 from July 16 to 24, 1914, to the proper representatives of his estate, was authorized.

Comptroller Downey to W. M. Mooney, disbursing clerk, Post-Office Department, August 8, 1914:

I have your letter of the 28th ultimo, requesting my decision of a question presented by you, as follows:

66 On April 1, 1914, Mr. John L. Miller, an employee of this department, was transferred from the position of skilled draftsman, at $1,600 per annum, in the office of the Fourth Assistant Postmaster General to the position of clerk, class 3, at $1,600 per annum, in the office of the Second Assistant Postmaster General (Division of Equipment), and executed the usual oath of office under his new designation. Mr. Miller remained in the latter position and was paid the regular salary therefor up to and including July 15, 1914.

"By act of Congress approved July 16, 1914, making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1915, the position occupied by Mr. Miller was automatically transferred from the bureau of the Second Assistant Postmaster General to the bureau of the Fourth Assistant Postmaster General. On July 16, however, Mr. Miller was seriously ill, and, therefore, unable to execute an oath of office under his new designation prior to his death, which occurred on July 24, 1914.

"Under the regulations of the department an extension of leave on account of sickness can be granted Mr. Miller up to and including the date of his death.

"In view of the above facts, I have to request your opinion as to whether or not Mr. Miller was entitled to salary as a clerk of class 3, $1,600 per annum, in the office of the Fourth Assistart Postmaster General from July 16 to 24, inclusive."

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The legislative, executive, and judicial appropriation act of March 4, 1913 (37 Stat., 739, 779), fiscal year 1914, provides for 25 clerks of class 3 ($1,600) in the office of the Second Assistant Postmaster General. The legislative appropriation act of July 16, 1914 (Public, 127, 63d Cong.), fiscal year 1915, provides for the office of the Second Assistant Postmaster General," Clerks twenty-three of class three (two transferred to office of Fourth Assistant) *" You state that by the legislative, executive, and judicial appropriation act of July 16, 1914, the position occupied by Mr. Miller was automatically transfered on that date from the bureau of the Second Assistant Postmaster General to the bureau of the Fourth Assistant Postmaster General. An order signed by the Postmaster General was issued July 16, 1914, as follows:

"ORDER No. 8252.

66 TRANSFERS AND REAPPOINTMENTS.

"The following-named employees are hereby reappointed or transferred, as shown below, effective July 16, 1914 (act of Congress).

"John L. Miller, clerk class three ($1,600), from the office of the Second Assistant Postmaster General to that of the Fourth Assistant Postmaster General."

The effect of the act of July 16, 1914, was to provide for 23 offices or positions of clerk of class 3 in the office of the Second Assistant and to provide for two additional offices or positions as clerk of class 3 in the office of the Fourth Assistant. The reduction in the

number in one office and the increase in the other over the number provided in the preceding fiscal year did not affect Mr. Miller. It did, however, require action by the Postmaster General in designating which of the 23 clerks of that class in the office of the Second Assistant would be assigned to the 23 positions for the fiscal year 1915. This having been done, and Mr. Miller not being one of those designated to be retained, the Postmaster General ordered his transfer to the office of the Fourth Assistant, where there was a clerkship of class 3 which he could fill.

It has been held for many years that a clerkship in an executive department provided for in appropriation acts is an office within the meaning of the law requiring an oath of office (1 Comp. Dec., 4). It has also been the practice in the departments, when a man is transferred from one bureau to another in the same department, and to a clerkship of the same class and salary, to require a new appointment to issue and a new oath of office to be taken by the applicant before he is paid for services rendered.

Without deciding the question as to whether or not a transfer from the office of one Assistant to that of another Assistant Postmaster

General of a clerk to occupy a position of the same grade and at the same salary in the office to which transferred requires that such clerk shall again take the oath of office required by section 1757 of the Revised Statutes, it is to be noticed that the act of July 16, 1914, intended in the reference to 23 clerks of class 3 "two transferred to office of Fourth Assistant" that 2 of the 25 clerks of this class theretofore employed in the office of the Second Assistant should be assigned to duty in the office of the Fourth Assistant. The appropriation acts do not attempt to make transfers of employees in the executive departments or designate where an individual shall be employed, and the reference to transfer in this law was probably only a convenient way by which a committee of Congress indicated that the total number of clerks of this class in the Post Office Department was not affected.

Since the decision in 4 Comp. Dec., 496, it has not been necessary that an officer take the oath of office before entering on duty in order to be entitled to pay from that time. It has been consistently held. however, that the oath must be taken before disbursing officers are authorized to make payment. (8 Comp. Dec., 199; 15 id., 418.) In the present case Mr. Miller took the oath of office as a clerk of class 3 in the office of Second Assistant on April 1, 1914. Whether or not his transfer, reappointment, or designation as clerk of the same class at the same salary in the office of the Fourth Assistant on July 16, 1914, made it necessary that he take another oath of office, I am of the opinion that his failure to take oath under the circumstances or his failure to formally accept the position to which he was assigned, the position being identical with that which he had. held and being simply in another bureau of the department, did not operate to deprive him of his right to pay from July 16 to the day of his death. His condition having rendered it impossible to again take the oath, even if it were required by law, his failure being occasioned by severe and fatal illness, the taking of the oath is waived. He was on sick leave and no duty had been performed in the new position. The oath relates to the execution of the duties of an office. (8 Comp. Dec., 199, 202.)

You are authorized, therefore, to make the payment.

SCOPE OF GENERAL EXPENSE APPROPRIATION.

An appropriation for general administrative expenses is not extended to matters outside of administrative needs by a provision for "other necessary exfor which no other appropriation is available."

penses.

Comptroller Downey to the Secretary of Interior, August 8, 1914:

I have a letter of Assistant Secretary Jones, of August 1, 1914, requesting decision whether payment of the expenses of an exhibit of Indian products at the Oklahoma State fair would be authorized