12. GOVERNMENT REIMBURSEMENT OF PERSONAL INJURY-JUDGMENT AGAINST CONTRACTORS

War Department, J. A. G. O., January 4, 1918.-To the Adjutant General.

1. The Adjutant General refers to this office a letter from the officer in charge of the cantonment construction at Yaphank, Long Island, dated December 29, 1917, requesting an opinion as to whether the Government shall defend a suit for damages for personal injuries of one Dominick Perrone v. Thompson-Starrett Company, a general contractor for the construction of Camp Upton; and if there is a judgment for plaintiff, is the Government liable to the defendant under its contract? The first paragraph of the letter from the officer in charge of the cantonment construction, of December 29, refers to a letter from the Constructing Quartermaster, Camp Upton, dated December 26, 1917, with reference to the subject matter and inclosing a copy of a letter from the Thompson-Starrett Company, dated November 10, 1917, which is not included in the papers submitted.

2. The papers submitted show that the Thompson-Starrett Company, a corporation, is the general contractor for the construction of Camp Upton, doing its work under the usual form of contract for emergency work. The Barrett Construction Company, another contracting concern, had the contract for the road construction at Camp Upton. On September 20, 1917, one Tony Reale, who was the owner of and operating his truck in the service of the Thompson-Starrett Company, struck a scraper being operated by Dominick Perrone, an employee of the Barrett Company, causing injury to the said Perrone resulting in his death. The representatives of Dominick Perrone have brought suit against the Thompson-Starrett Company for damages arising out of the death of the decedent and the Thompson-Starrett Company regards the defense of this suit as a matter for the attention of the Government.

3. The pertinent parts of the contract with the Thompson-Starrett Company are:

"Article II.

"The Contractor shall be reimbursed in the manner hereinafter described for such of its actual net expenditures in the performance of said work as may be approved or ratified by the Contracting Officer and as are included in the following items: *

* *

"(h) Such bonds, fire, liability and other insurance as the Contracting Officer may approve or require; and such losses and expenses, not compensated by insurance or otherwise, as are found and certified by the Contracting Officer to have been actually sustained (including settlements made with the written consent and approval of the Contracting Officer) by the Contractor in connection with said work, and to have clearly resulted from causes other than the fault or neglect of the Contractor.

4. In an opinion by this office under date of December 20, 1917 (J. A. G. 152), in the case of William and Helen Braasch v. The Thompson-Starrett Company, in a claim for personal injuries, it was

stated:

"This suit does not concern the United States. It is a suit against the Thompson-Starrett Company, based upon its alleged negligence, and should be defended by it at its own expense."

In the instant case the action is grounded upon alleged negligence of an employee of the Thompson-Starrett Company and if recovery should be had, it would be upon the theory of negligence. Section h, article II, of the contract, supra, expressly provides that the contractor shall not be paid for losses or expenses incurred by his fault or neglect. This provision is broad enough to and does preclude any payment to the contractor for losses or expenses incurred by reason of an act of negligence of its agents or employees.

The company is an independent contractor and the fact that its compensation is fixed in article III of its contract upon a percentage basis does not make it an agent of the Government; and if it were an agent of the Government, the United States would not be liable for an act of negligence committed by it or its agent, it being a well settled rule of law that the United States is not liable for negligence of its officers or agents. Bigby v. U. S., 188 U. S. 400, 23 Sup. Ct. 468, 47 L. Ed. 519.

5. There appears in the papers submitted a telegram from O'K. Myers, Major Quartermaster, under date of September 20th, addressed to Colonel I. W. Littell, in which this officer assumes that the instant case is a public liability case, basing his assumption upon the telegram addressed to all constructing quartermasters under date of June 28, 1917, in words and figures following:

"You will at once obtain insurance protecting your material against fire during time between delivery by carrier and acceptance by Government also such workmen's compensation insurance as required by statutes. Other insurance risks assumed by Government. Your attention directed to clause H Article two whereby Government does not assume responsibility for losses and expenses resulting from your fault or neglect. Detailed instructions mailed.

"[Signed] Littell."

This telegram does not warrant such a conclusion. The sentence therein, "other insurance risks assumed by the Government," indicates that after material had been put into a building and become the property of the United States, the Government carried its own risk, which is a policy long adhered to by it.

6. I am of the opinion that the defense of the suit of Dominick Perrone v. Thompson-Starrett Company is not a matter for the Government, but one in which the Thompson-Starrett Company is alone interested; and any judgment recovered therein against the ThompsonStarrett Company would not be properly chargeable to the Government under its contract quoted supra.

[Signed] S. T. Ansell, Acting Judge Advocate General.

13.

ALLOTMENT OF PAY DURING ILLNESS DUE TO MISCONDUCT

Pay and Allowances I C.

2d Ind.

War Dept., J. A. G. O., January 5, 1918.-To the Adjutant General. 1. There are referred to this office for answer the three following questions submitted by the commanding officer of the Army Hospital, Hoffman Island, New York, to the Director of the Bureau of War Risk Insurance:

(a) Can a man make allotment for dependent relative while in hospital under provisions of G. O. 45, W. D. 1914?

(b) In case allotments have been made, are they discontinued during periods when soldier is in hospital under G. O. 45, W. D. 1914?

(c) Are allotments for dependent relatives, insurance and Liberty Bonds automatically discontinued for all periods when soldier is on sick report under provisions of G. O. 45, W. D. 1914?

2. The Act of April 27, 1914 (38 Stat. 351, 353 [Comp. St. 1916, § 2104a]) upon which G. O. 45, W. D. 1914, is based, provides as follows:

"That hereafter no officer or enlisted man in active service, who shall be absent from duty on account of disease resulting from his own intemperate use of drugs, or alcoholic liquors, or other misconduct, shall receive pay for the period of such absence, the time so absent and the cause thereof to be ascertained under such procedure and regulations as may be prescribed by the Secretary of War."

Article II of the War Risk Insurance Act compels an enlisted man who has a wife, child, or divorced wife to whom alimony has been decreed, to allot a portion of his pay for their support. Although this amounts to a disposition of such portion of pay by Congress, it cannot fairly be said to be inconsistent with the above quoted provision, which in terms deprives a man who is absent for the reasons therein specified, of all of his pay. Consequently, during the period of such absence there is no pay from which an allotment, either compulsory or voluntary, can be made. The stoppage or forfeiture of pay herein involved differs materially from a forfeiture imposed by sentence of a court-martial. A court-martial has no power to dispose of any property of an enlisted man which Congress has already disposed of. But Congress has the undoubted right to prevent the accrual of pay or to impose a forfeiture of all pay as a penalty for absence caused by misconduct. Therefore, when Congress disposes of a percentage of a man's pay by compulsory allotment, that percentage is beyond the power of a court-martial to forfeit. But when one statute provides for forfeiture of all pay and another requires a compulsory allotment of a portion of pay, the question presented is not one of power but merely one of statutory construction. As pointed out above, the two statutes are not inconsistent. Reasonably interpreted they require the forfeiture of all pay, whether allotted or not, for absence caused by misconduct of the kind specified. Therefore, the first inquiry must be answered in the negative and the second and third in the affirmative. 3. Closely connected with the questions submitted is that of the

effect of such absence from duty upon the allowances made to dependents under article II of said Act. The object of this legislation is clearly to provide for the support of these dependents during the period of military service of the person upon whom they are dependent. It should, therefore, be construed, if possible, so as not to visit the sins of the enlisted man upon his dependents. And unless the language of the statute so requires, a forfeiture of pay by the enlisted man should not cause a forfeiture of allowance. This view is taken by Judge Mack on page 15 of Bulletin Number 3, Treasury Department, Bureau of War Risk Insurance, Division of Military and Naval Insurance. He there construes the first sentence of section 205 of the Act as authorizing the payment of the allowance to members of Class A, where a compulsory allotment is not waived or exempted. Substantially the same language is used in section 206 with respect to voluntary allotments as in section 205 with respect to compulsory allotments. In this connection the opinions of this office of January 23, 1913 (72-210), and of the Comptroller of the Treasury of January 30, 1913 (19 Comp. Dec. 483), should be noted. These construe the Act of August 24, 1912 [37 Stat. 572], which was practically identical with the Act of April 27, 1914, above quoted. The theory of both these opinions is that the Act in question is penal, that it punishes misconduct rather than regulates pay, and that it forfeits the man's pay as a penalty rather than stops it as unearned. If the Director of the Bureau of War Risk Insurance adopts the theory of these opinions, there will be nothing to prevent his applying Judge Mack's interpretation to cases arising under this Act and G. O. 45, W. D. 1914. With him, and not with this office, rests the decision as to allowances.

[Signed] S. T. Ansell, Acting Judge Advocate General.

14. INDUCTION OF A MINOR FALSELY REGISTERING AS OVER AGE West System Key-No. Army and Navy 20.

January 16, 1918.

From: The Office of the Judge Advocate General.

To: The Division Judge Advocate, 39th Division, Camp Beauregard, Louisiana.

Subject: Opinion on discharge of drafted men.

1. This office is in receipt of your letter of the 4th, in which you ask for an expression of opinion on the following proposition:

"An application for discharge is presented by a soldier who claims that he had not reached the age of twenty-one years complete on the date of his registration. The excuse offered for the registration. is that, if he had said that he was not twenty-one years of age, he would have lost his job. I construe the excuse as an admission that registrant knowingly gave a false answer relative to his age. The application for discharge was not made until after the soldier was inducted into the service and after reaching majority. * * *

"The Adjutant General of Arkansas (the soldier comes from that State) urges the discharge on the theory that he has the right to

have the registration cancelled under the provisions of section 61 of the Selective Service Regulations. My opinion is that the section. mentioned was not intended to cover cases inducted into the service prior to December 15, 1917."

Broadly, the question, as I view it, is whether a man who registered and gave his age as 21 years, thus bringing himself within the draft. act, may be discharged and relieved from the military status thus willingly assumed, and purposely self-imposed.

2. The law involved is not that of voluntary enlistment but is the law as found in section 2 of the Selective Service Act of May 18, 1917 (40 Stat. 76). It is there provided that all male citizens between 21 and 31 years of age are liable to registration and draft; and it is further provided in section 4 of said act, that any and all questions of exemption and eligibility shall be determined by boards therein provided, and appointed by the President under such regulations as he shall prescribe.

Indeed, in any view, the decision of such boards upon questions. of eligibility, including age, are final and beyond judicial inquiry, except in the well-known cases of fraud, etc., which operate to the disadvantage of the soldier himself. The decision of such boards is final and unimpeachable in collateral attack. In this connection your attention is invited to the recent case of United States ex rel. Koopowitz v. Finley, 245 Fed. 871 (D. C. S. D. N. Y. Nov. 3, 1917). * This case is printed in W. D. Bulletin No. 72-Digest of Opinions J. A. G., Dec. 24, 1917, page 27. *

* *

* *

3. In the case to which you refer there is no opportunity for fraud except when committed by the man himself and, of course, he could there take no advantage. Even if it were otherwise and the decisions of such boards were not final, judicial inquiry would of necessity reach the same conclusion; for the reason that questions of age give no privilege to an alleged minor whose contract of enlistment is good as far as he is concerned. This is true because age is not of the substance of the contract of enlistment, and a person who voluntarily enlists, representing himself to be of proper age, cannot destroy the status thus created on the ground that he does not possess the requisite qualifications. To hold otherwise would be to say that a minor is not at liberty to serve his country. It is a fundamental principle of national law, essential to national life, that every citizen, whether of sufficient age to make a contract or not, is under obligation to serve and defend the constituted authorities of the State and Nation and for that purpose to bear arms when such service is required of him. These principles are recognized and discussed in the well known case of In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636, and In re Morrissey, 137 U. S. 157, 11 Sup. Ct. 57, 34 L. Ed. 644, at which an infant shall be competent to perform any military duty depends wholly upon the legislature; and that questions of eligibility for such service are for the benefit of the Government, the party for whose benefit it is prescribed. If the matter of age were not incidental, then a person enlisting could utter a falsehood to create the military status and then by pleading the truth avoid whenever it suited his purpose.