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"To provide for the reimbursement of officers for expenses incurred during delay incident to mode of travel."
In the Assistant Comptroller General's comments on this proposed legislation it is stated, in part, as follows:
"This office does not appear to have had before it for decision for per diem purposes, the travel stutus of an officer during a period of delay at port of embarkation in a situation where his orders directed commercial air travel without troops, from a point in the United States to such port of embarkation and travel hy the same means of transportation to a foreign country.
In connection with the above quoted statement, your decison is requested on the specific question as to whether officers may be paid per diem or actual expenses for periods of unavoidable delay at port of embarkation where they are traveling under orders without troops by air from a point in the United States to an ultimate destination outside of the United States.
The subject of the report to the Director, Bureau of the Budget, dated June 26, 1941, referred to in the first paragraph of your letter, was a bill proposed by the Navy Department to reimburse officers of the Navy and Marine Corps for actual expenses not to exceed $7 per day during periods of delays incident to mode of travel without any defined limitation and in illustration of the necessity for such legislation an extreme case was given where a delay of 10 days elapsed between the time of arrival of the traveler at New York and the time he was finally able to leave New York for London, due to motor trouble of a Clipper plane and adverse weather conditions. The status of the officer prior to arrival at New York; the nature of his orders and the directions which may have been contained therein as to the method of travel were not even suggested, and it was pointed out that the status of the traveler could possibly have been such that even allowing for the 10-day delay at New York he would have been put to no personal expense incident to travel between the terminal points of the journey. As was pointed out in the report of June 26, 1941, that situation could have arisen and undoubtedly does arise where an officer in a mileage status elects to travel by commercial air line over a journey of considerable distance.
Your present question relates to travel by air of an officer not in a mileage status, but who by competent orders is directed to proceed by air from a point within, to a destination outside the United States. Section 204 (c) of the act of June 23, 1938, 52 Stat. 983, 984, provides:
Travel by personnel of the United States Government on commercial aircraft, domestic or foreign, including travel between airports and centers of population or posts of duty when incidental to travel on commercial aircraft, shall be allowed at public expense when authorized or approved by competent authority, and transportation requests for such travel may be issued upon such authorizations. Such expense shall be allowed without regard to comparative costs of transportation by aircraft with other modes of transportation.
In 18 Comp. Gen. 256, it was held:
An Army officer ordered to travel by commercial aircraft with transportation furnished on Government transportation request under the provisions of section 204 (c) of the act of June 23, 1938, 52 Stat. 983, is not entitled to mileage, with deductions for transportation furnished, but to actual expenses, or per diem
in lieu thereof, under and within the limitations of the act of March 2, 1931, 46 Stat. 1461.
If by unavoidable delay is meant delay due to mode of travel, the travel by air from a point in the United States to an ultimate destination outside the United States would constitute a continuous journey by air; and if the orders direct travel by air, without troops, and prescribe reimbursement as for such travel, the delay incident to mode of travel at port of embarkation for the overseas portion of the journey would not affect the travel status so as to deny reimbursement of actual travel expenses or per diem in lieu thereof, whichever method of reimbursement may have been authorized as prescribed by the act of March 2, 1931, 46 Stat. 1461.
PRIVATE PROPERTY DAMAGE-CAUSED BY NEGLIGENCE OF EMPLOYEE DRIVING PRIVATELY OWNED VEHICLE ON A MILEAGE REIMBURSEMENT BASIS-GOVERNMENT LIABILITY
There is no liability upon the Government under substantive rules of law for damage to private property caused by the negligent operation of a privatelyowned automobile while being used on a mileage basis by an employee authorized to so travel in connection with Government business, and, therefore, a claim for such damage may not be considered under a statutory provision authorizing administrative settlement of claims on account of private property damage resulting from the negligence of employees acting within the scope of their employment.
Comptroller General Warren to the Federal Security Administrator, December 2, 1941:
Reference is made to your letter of September 25, 1941, as follows:
Under paragraph 19 of the National Youth Administration Appropriation Act of 1941 [approved June 26, 1940, 54 Stat. 593], the National Youth Administrator, subject to the approval of the Federal Security Administrator, is authorized to consider, ascertain, adjust, determine, and pay from the appropriations made in paragraph 1 of the act any claim, not in excess of $500, arising out of its operations on account of damage to or loss of privately owned property caused by the negligence of any employee of the National Youth Administration, while acting within the scope of his employment.
The National Youth Administrator has before him for consideration a claim for damage to a privately owned truck arising out of an accident caused by the negligence of an employee of the National Youth Administration, while acting within the scope of his employment. At the time of the accident the aforesaid employee was traveling in his privately owned automobile on a mileage basis under a travel authorization properly issued in accordance with paragraph 12 (a) of the Standardized Government Travel Regulations.
The National Youth Administrator has requested, therefore, that your decision be solicited on the question whether a claim of this type is for consideration under paragraph 19 of the act referred to above, and if otherwise proper, whether such claim may be paid from the appropriation made under that act. The statutory provision in question, 54 Stat. 593, reads as follows: The National Youth Administrator, subject to the approval of the Federal Security Administrator, is authorized to consider, ascertain, adjust, determine, and pay from the appropriation in paragraph 1 any claim arising out of operations thereunder accruing after June 30, 1940, on account of damage to,
or loss of, privately owned property caused by the negligence of any employee of the National Youth Administration, while acting within the scope of his employment. No claim shall be considered hereunder which is in excess of $500 or which is not presented in writing within one year from the date of accrual thereof. Acceptance by a claimant of the amount allowed on account of his claim shall be deemed to be in full settlement thereof, and the action upon such claim so accepted by the claimant shall be conclusive.
It is the general understanding that the purpose of the statute quoted, as well as of certain related acts, was to provide a process for the settlement-within the limits of the statute of claims sounding in tort wherein liability of the Government under substantive rules of law is not enforceable because of the sovereign immunity to suit in such matters. 19 Comp. Gen. 503; 21 id. 341 (B-20680, October 17, 1941); 21 id. 411 (B-19298, November 4, 1941); 38 Ops. Atty. Gen. 514; Carver v. Haynes (D. C., Calif., 1941) 37 F. Supp. 607. Therefore, the test for application in the case you submit may be said to be whether the relationship between the Government and an employee of the National Youth Administration is such as to result in a liability for the negligent acts of the employee in the circumstances recited.
The decided cases upon the same question with respect to private employment are very numerous, and may be found collected in the annotations at 57 A. L. R. 739; 60 id. 1163; 87 id. 787; 112 id. 920, and the later cases referring thereto. In the greater number of cases, the decision appears to be that, in the typical private employment relationship, the employer is liable, if the travel at the moment of the accident was within the scope of the employment, and the use of the employee's car was authorized. 5 American Jurisprudence 728-9. That conclusion, however, does not follow automatically, but is the result of various incidents of the particular relationship in question, which must be developed and proved in every case. See Moore Handley Hardware Co. v. Williams (Ala., 1939) 189 So. 757; Darner v. Colby (Ill., 1941) 31 N. E. (2d) 950; Dr. Pepper Bottling Co. of Ky. v. Haselip (Ky., 1940) 144 S. W. (2d) 798, where the Court remarked, "To hold a master liable whenever a servant does something in his behalf would be an unreasonable rule * * *" In Kennedy v. American National Insurance Co. (Tex. 1937) 107 S. W. (2d) 364, 112 A. L. R. 916, the Court quoted from the case John Wesolowski, Jr. v. John Hancock Mutual Life Insurance Co. (Penn., 1932) 162 At. 166, 87 A. L. R. 783, as follows:
To hold a master legally responsible for the act of a servant who is engaged in furthering his master's business and who while doing so negligently uses some instrumentality that carries him from place to place, it must either be proved that the master exercises actual or potential control over that instrumentality, or the use of the instrumentality at the time and place of the act complained of must be of such vital importance in furthering the business of the master that the latter's actual or potential control of it at that time and place may reasonably be inferred
Negligence in the conduct of another will not be imputed to a party if he neither authorized such conduct, nor participated therein, nor had the right or power to control it.
and the Pennsylvania court added:
In the case before us the defendant had no control over Adams' car. It was in no position to require him to use it, for the use of his car was no part of his contract of service. It could not direct him when, where, or how to drive his car. It had no more control of Adams' car in which he transported himself than it had of the shoes he used in walking from patron to patron. The employer was indifferent as to whether Adams walked, rode a bicycle, or operated a motorcar to reach the people with whom he transacted business. If Adams had chosen to walk from person to person with whom he had his employer's business to transact and in walking he had negligently knocked over and injured another pedestrian, it could not reasonably be contended that his employer should respond in damages for Adams' negligent pedestrianism. So to hold would be to construe the phrase "respondeat superior" beyond its fundamental meaning and to carry its principle to absurd lengths and to consequences forbidden by every sound consideration of public policy. The California Supreme Court, with a related question before it in Billig v. Southern Pacific Co. (1922) 209 Pac. 241, has summarized the principle in this language:
In other words, the application of the doctrine of respondeat superior in any given case depends upon the power of control which the superior possesses, and which for the protection of third persons he is required to exercise, over the conduct and activities of his subordinates. *
That the foregoing represents the accepted view is indicated by the Restatement of the Law of Agency, American Law Institute, section 239 thereof reading in part:
A master is not liable for injuries caused by the negligence of a servant in the use of an instrumentality over the use of which it is understood
the master is to have no right of control.
In the application of the foregoing rules there are necessarily for consideration various factors common to the arrangement under which an employee drives his car in the performance of the Government's business, some of which are as follows:
(a) In nearly every case, the car is used merely by permission, and not by command. The usual travel order, while directing the employee to go to certain named points, or to where his services are required within a certain area, authorizes him, if he desires, to drive his car and claim mileage. In other words, the Government's concern is only that the employee appear when and where he is directed to be; how he may get there is of interest only in measuring the reimbursement he may be paid for his expenses;
(b) Where a Government car is furnished, it is an obvious administrative duty to have the car in mechanical good order for safe driving, and such duty carries a corresponding liability. The private automobile, however, is maintained not merely at the owner's expense, but in such condition-safe or otherwise-as he may decide upon, the matter of control of that condition being a power-if not a duty— of the local authorities, and not of the United States;
(c) Similarly, the driver of a Government car on official business is not legally subject to examination and licensing by the States, but, rather, his qualifications and abilities are for the Government to determine. Johnson v. Maryland (1920) 254 U. S. 51. So far as known, no such immunity is claimed for the ordinary employee driving his own car, nor is his driving ability (or, in fact, his ownership of a car) understood to be a qualification for employment.
(d) There is no authorized civilian travel on a mileage basis except when "payment on such mileage basis is more economical and advantageous to the United States," and that allowance is "in lieu of actual expenses of transportation" (act of February 14, 1931, 5 U.S. C. 73a). When mileage is payable, it has been the invariable rule that the Government's obligation begins and ends with that payment, and while an employee may profit if the travel costs him less, the risk, also, is his that it may cost more. The mileage commutes every expense, whether for storage, towing, ferriage, or repairs due to hazards of the weather or to accidents (2 Comp. Gen. 809; 7 id. 284; 11 id. 175; 15 id. 76; id. 349; id. 735; 19 d. 39; 20 id. 339; and see report dated October 8, 1923, of the Federal Traffic Board's Special Committee on Uniform Travel Regulations. As a corollary, the mileage traveler pays State gasoline and other taxes (Travel Regulations, 12 (a)), it apparently being the view that in his capacity as a car owner and driver, his status is not that of a Federal instrumentality to which immunity may attach.
In other words, in the mileage arrangement the employee substitutes himself for the common carrier usually employed, and, as in the case of a common carrier, the legal incidence of such transportation— referring both to the power of control and the liability for resultswould seem to fall upon the employee, and not upon the Government. Khoury v. Edison Illuminating Co. (Mass., 1928) 164 N. E. 77, 60 A. L. R. 1159. It follows that, upon the facts stated in your letter and those necessarily assumed in the foregoing, there is no substantive liability upon the Government, and the claim is not for consideration or payment under the appropriation act in question.
ADVERTISING-NECESSITY OR NON-NECESSITY-COMMON CARRIER TRANSPORTATION SERVICE
The removal-by the proviso to section 321 (a) of the Transportation Act of 1940 of the advertising for bids requirement "in connection with the procurement of transportation services when the services required can be procured from any common carrier lawfully operating in the territory where such services are to be performed" is applicable not only with respect to common carriers lawfully operating in the United States and contiguous territory, but also with respect to those operating in the territory of any country under the laws of such country, or on the high seas.