per diem and per hour employees subject to the forty-hour week statute of March 28, 1934, who, under the present work schedule, are required to work regularly six eight-hour days per week, instead of the five days required under normal conditions, for which overtime rates of compensation are paid in accordance with the statute for the sixth day of work, may be paid overtime compensation for a sixth day of the week on which they are required to serve on a jury.

Comptroller General Warren to the Secretary of War, May 30, 1944:

I have your letter of May 18, 1944, as follows:

Your interpretation of the act of June 29, 1940, 54 Stat. 689, 5 U.S.C. 30n-30p, is requested in the light of a question presented in a communication received from Captain John Smith, Jr., Chief of the Civilian Personnel Branch at Fort Jackson, South Carolina, as follows: "There exists a question in this station as to whether or not an hourly employee loses his overtime pay when absent on jury duty on his sixth working day."

The act of June 29, 1940, 54 Stat. 689, 5 U.S.C. 30n et. seq., provides as follows: "That the compensation of any employee of the United States or of the District of Columbia who may be called upon for jury service in any State court or court of the United States shall not be diminished during the term of such jury service by reason of such absence, except as provided in section 3, nor shall such period of service be deducted from the time allowed for any leave of absence authorized by law.

"Sec. 2. Any employee specified in section 1 who may be called upon for jury service in any court of the United States shall not receive any compensation for such service.

"Sec. 3. There shall be credited against the amount of compensation payable by the United States to any employee specified in section 1 for such period as such employee may be absent on account of jury service in the court of any State any amounts which such employee may receive from such State on account of such jury service."

Daily and hourly employees of the Department are employed and paid in accordance with the act of March 28, 1934, 48 Stat. 522, 5 U. S. C. 673c, which establishes a maximum regular work week of forty hours for the several trades and occupations whose compensation is fixed by a wage board or other wagefixing authorities and provides that all overtime for work worked in excess of forty per week shall be compensated for at the rate of not less than time and one-half. Pursuant to this law, and in accordance with decisions of your office, this Department has established for such employees a regular weekly tour of duty of five 8-hour days for which compensation is paid at the regular hourly or daily rates. As a rule, this tour of duty begins on Monday and ends on Friday of each calendar week and work performed on Saturday is compensated for at overtime rates. In the event that work is not actually performed on the sixth day (that is, outside of the forty-hour tour of duty)-unless such day be a holiday-no compensation is ordinarily paid and no charge is made to the employees' leave account.

However, under present war-time conditions, in conformity with the policy set forth in a letter from the President of December 22, 1942, general administrative orders have been issued requiring a regular work week of six 8-hour days, the sixth day of work being considered an "overtime day." Therefore, daily and hourly employees are expected and required to work the same number of hours as per annum and monthly employees but compensation for overtime is paid for work performed upon a specific day rather than prorated over the year as is the case with employees paid additional or overtime compensation under the War Overtime Pay Act of 1943. As stated in your decision of December 8, 1943 (R38663, 23 Comp. Gen. 415) “while Saturdays normally would not come within the regular tour of duty of forty hours fixed for the purpose of the 1934 law, nevertheless such days are, under existing war conditions, a part of the administrative work week."

This Department feels that to deny overtime compensation to daily and hourly employees because they chance to perform jury service upon a day which tech

nically falls without the regular tour of duty established for the purpose of the 1934 law, but within a part of the administrative work week, would defeat the apparent intent and purpose of the act of June 29, 1940. This act seemingly provides that an employee of the United States called for jury service shall not be penalized by a diminution in the amount of his compensation or by a reduction in the time allowed for leave because of such service. Daily and hourly employees are required to work six days a week and are paid overtime compensation for work on the sixth day. If they are denied overtime compensation for work on the sixth day upon which work would have been but was not performed solely because jury service prevents the performance of their regular duties, their compensation would appear to have been diminished contrary to the 1940 law.

It is also pointed out that the diminution of such compensation would result in discrimination not only as between daily and hourly employees subject to the provisions of the act of March 28, 1934, and monthly and per annum employees receiving additional or overtime compensation on a prorated basis but also as between such daily and hourly employees who happen to be called for jury duty upon the sixth day of the work week and those called for duty upon a day within the regular tour of duty.

If it should be decided that daily and hourly employees are not entitled to overtime under the circumstances above set forth, your decision is also requested as to the following questions:

1. Does section 2 of the act of June 29, 1940 prohibit the payment of compensation for service upon jury in a court of the United States, or does the fact that the employees have, as a practical matter, been penalized by a reduction in pay bring them within the principle announced in your decision of October 30, 1940 (B-13334. 20 Comp. Gen. 276), in which it was held that an employee who is not entitled to leave and who must employ a substitute while serving as a juror "would occupy a status similar to a juror not connected with the Government service"?

2. Does section 3 of the act of June 29, 1940, require amounts or any portion thereof received by such employees on account of jury service in the court of any State to be credited against or deducted from compensation payable by the United States? In this connection, your decision of September 3, 1941 (B–13341, 21 Comp. Gen. 191) held that where it is necessary for an employee to pay for additional clerk hire as a result of absence on jury duty, the payment for such hire would result in a diminution of his compensation and that, accordingly, there should be credited against the compensation payable by the United States "only the difference between the amount required to be paid for necessary clerical hire and the amount received by him from the State for the jury service." Under the principle of this decision, it would seem that section 3 of the 1940 law might be held to require the crediting against compensation payable to daily and hourly employees of only the difference between the overtime they would have received if not called for jury service, and the amount received for jury duty in the State court.

In decision of November 22, 1940, 20 Comp. Gen. 276, 277, it was stated:

Section 1 of the act of June 29, 1940, supra, provides that the compensation of "any employee of the United States" shall not be diminished during jury service and that the time involved in such jury service shall not "be deducted from the time allowed for any leave of absence authorized by law." The purpose or intent of the statute in its entirety is that an "employee of the United States" shall receive his regular compensation or pay during the time he is absent on account of jury service, if otherwise in a pay status, and that the period of such service shall not in any event be charged as annual leave.

The act of June 29, 1940, 54 Stat. 689, does not limit an employee's compensation during the jury service to basic compensation, that is, exclusive of overtime compensation. The purpose of the statute is to make Federal employees available for jury service without loss of the total compensation they would have received had they remained on

duty in their civilian positions. Under the present wartime conditions, and in accordance with administrative orders, it is understood the employees to whom you refer have no discretion to determine whether they will or will not work on the sixth day of the week for which overtime rates of compensation are paid. If an employee is required to serve on a jury on the sixth day of the week, unquestionably his compensation would be diminished if he were not paid the overtime rate of compensation he would have received had he remained on duty. Consequently, and for the reasons stated in your letter, I am in agreement with the view expressed by you that employees whose compensation is computed and paid in accordance with section 23 of the act of March 28, 1934, 48 Stat. 522, are entitled to overtime compensation for a sixth day of the week on which they are required by competent authority to serve on a jury.

The above answer to the principal question presented renders unnecessary any answers to subquestions 1 and 2.

(B-42126)

DAMAGE TO RENTED EQUIPMENT; FRAUDULENT CLAIMS; ETC.

In a bailment for hire, the Government, as bailee, is required to exercise only ordinary diligence in the care of the property and, in the absence of specific contract provision, is not liable for loss of or damage to the property sustained without fault or negligence on the part of any officer or employee of the Government.

The mere fact that a truck, rented to the Government under a contract which established a bailor-bailee relationship and which obligated the contractor to make all repairs, was damaged while in the possession of the Government does not establish negligence on the part of Government employees so as to authorize allowance of the contractor's claim for reimbursement of the cost of repairing the truck; rather, payment is authorized only where the record may be taken as reasonably establishing that the damages were proximately caused by the failure of the Government to exercise the degree of care imposed by the bailment contract.

Persons who present claims against the United States must establish clearly the facts and principles on which their claims are based and the burden imposed by the rule must be met squarely in each case in order to justify the accounting officers in certifying such claims for payment from appropriated moneys.

The restatement of a claim for a smaller amount after discovery by the Government that the original claim, supported by false or fraudulent evidence, was deliberately presented for an amount greater than that actually due does not eradicate the taint or suspicion of fraud so as to authorize payment of the claim in the smaller amount.

Comptroller General Warren to Bowles and Weller, May 30, 1944:

There has been received from C. C. Cuzzort, attorney, a letter dated May 3, 1944, with enclosures, requesting review of settlement dated April 19, 1944, which disallowed your claims for $110.40 and $220.35

as reimbursement for the costs of repairs to trucks alleged to have been damaged while in the possession of the Government under rental agreement No. ER-T43ps-18214, dated March 17, 1942.

Under the terms of the contract you agreed to furnish four trucks, including the two here involved, for a rental consideration of $5.65 each per day. With respect to maintenance and repairs, the contract contained the following provisions:

Services of vendor. The vendor shall furnish, deliver and remove the equipment to and from the point of operation. The vendor shall make all repairs required to keep the equipment in proper operating condition while in the custody of the Government, but he shall not otherwise be responsible for maintaining the equipment.

Repairs and maintenance.-The Government shall do all maintenance required to keep the equipment in proper operating condition except that of making repairs. All repairs shall be made by the vendor, and shall be made promptly upon request of the Government.

With respect to the claim for $110.40, the record indicates that truck bearing license No. 9100F was damaged when it was driven over a piece of a shovel handle which was thrown up and wedged between the drag link and the front axle of the truck, locking the steering mechanism and severing the hydraulic brake tube. As a result, the brakes failed on a down-grade and the truck overturned, sustaining damages in the amount now claimed.

The relationship between yourself and the Government with reference to the trucks was that of bailor and bailee, and the rights and liabilities in the premises are to be determined by the rules applicable under the general law of bailments. It is well settled that in a bailment for hire, such as here, the bailee is required to exercise only ordi nary diligence in the care of the property bailed. See 6 C. J. 1121. et seq. The general rule in such cases is that, in the absence of specific contract provision, the United States is not liable for loss of or damages to hired property sustained without fault or negligence on the part of any officer or employee of the Government. 16 Comp. Dec. 68; 19 id. 131; 1 Comp. Gen. 192; 5 id. 557; 15 id. 64; and 16 id. 123.

No evidence has been presented which would tend to substantiate your contention that the damage to the truck was occasioned by carelessness and gross negligence on the part of some WPA employee. On the contrary, the administrative office has reported that the operator, one Clarence Ashley, was a competent and efficient driver and that an investigation revealed no evidence of negligence on his part in the operation of the truck.

Careful consideration has been given to the contents of the affidavit submitted by Chester Bowles, and more particularly to the averment

to the effect that the Government should be required to prove that it was entirely free from negligence and that under bailment relationships such as here involved "liability of the government should be construed liberally in favor of the private citizen", since such citizen, from the very nature of the transaction, has no representative with his equipment and, therefore, must have his rights determined on the basis of evidence submitted by Government employees.

The mere fact that the truck was damaged while in the possession of the Government under a bailment for hire does not establish negligence on the part of Government employees engaged in the operation thereof. It is well settled that a bailee-even under a gratuitous bailment is not an insurer of the thing bailed and is not responsible for damages or losses arising from an unforeseeable accident or under circumstances which might not reasonably be foreseen and provided against. Furthermore, persons who present claims against the United States must establish clearly the facts and principles on which their claims are based and the burden imposed by the rule must be met squarely in each case in order to justify the accounting officers in certifying such claims for payment from appropriated moneys. In other words, allowance in cases such as here involved is unauthorized unless the record may be taken as reasonably establishing that the damage to the bailed property was proximately caused by the failure of the Government to exercise the degree of care imposed by the bailment contract.

In view of the foregoing, since the Government was required to exercise only ordinary diligence in the care of the truck, and since the damages to the truck have not been shown to have resulted from negligence on the part of the operator-or any other Government employee-there is no legal basis for the allowance of your claim for reimbursement of the cost of repairing said truck.

With respect to the other item of your claim, the record indicates that trucks bearing license Nos. 9101F and 9100F were damaged when the motor blocks cracked as the result of freezing weather. It is admitted by the administrative office that such damages resulted directly from negligence on the part of Government employees, in that they failed properly to drain the motor blocks when weather and storage conditions indicated the necessity therefor as a protection against freezing.

The record further shows that your original claim for such damages amounted to $316.70 ($158.35 per truck) and was supported by receipted bills for such amount. An investigation, which included the questioning of members of the firm of Gene & Jimmie, Owensboro, Kentucky, which made the repairs and receipted the bills furnished in sup