OCCIDENTAL CONST. CO. v. UNITED STATES, 245 F. 817

GILBERT, Circuit Judge (after stating the facts as above). The plaintiff attached to its complaint copies of the contracts, one relating to the mules, and one relating to the grading equipment. It brings to this court none of the evidence in the case, but relies upon the findings of fact of the court below as ground for the recovery of the sums for which it sues.

The plaintiff contends that, notwithstanding the finding of the court that neither Schanck nor Coultis was authorized to enter into the written contracts which were pleaded, and that there was no ratification or estoppel in relation thereto, the plaintiff was entitled to judgment for the injuries to the mules while they were in the actual possession of the defendant, for the reason that the contract was fully performed, citing Clark v. United States, 95 U. S. 539, 24 L.

Ed. 518, a case in which the government was held liable on an implied contract, the court ruling that, when a contract has been wholly or partially executed on one side, the party performing will be entitled to recover the fair value of his property or services as upon an implied contract for a quantum meruit. If the plaintiff were here suing for the value of the use of the mules by the defendant, the case so cited would be directly in point, as would also he St. Louis Hay & Grain Co. v. United States, 191 U. S. 159, 24 Sup. Ct. 47, 48 L. Ed. 130, and United States v. Andrews, 207 U. S. 229, 28 Sup.

Ct. 100, 52 L. Ed. 185. But the plaintiff contends that it is seeking to recover damages for the negligence of the employes of the government in their treatment of the mules. In answer to that contention it is to be said, first, that the complaint does not allege negligence. So far as it relates to the injury to the mules, the complaint contains no more than the following.

Referring to the alleged contract the pleader said: “That the said contract provided that defendant should, and the defendant therein agreed to, take extra care of the said mules and equipment, and return the said mules to the plaintiff herein at its yard in the city of Los Angeles, in the county and state aforesaid, at the termination of the lease and hiring, in as good condition as when taken; that the defendant did not take extra care of the said mules and equipment, as provided in the said agreement, and did not return the said mules and equipment to the plaintiff in as good order as when received; that said mules, upon- their return to the plaintiff as above set forth, were all of them in very poor condition, were emaciated and weak, and the plaintiff could not use nor let the said mules to be used, nor any of them, on account of such poor, weak, and emaciated condition, resulting from such lack of care as aforesaid, until the 1st day of June, 1913.” The claim for damages for injury to the mules is therefore based upon an express agreement to exercise extra care.

But there was no legal contract between the parties. And even if the allegations of the complaint were sufficient to charge negligence, the plaintiff could not recover damages therefor, for, in the absence of an express contract, the government is not liable for the negligence of its employés. In Robertson v. Sichel, 127 U. S. 507, 515, 8 Sup. Ct. 1286, 1290 (32 L.

Ed. 203), the court said: “The government itself is not responsible for the misfeasances, or wrongs, or negligences, or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs, since that would involve it, in all its operations, in endless embarrassments, and difficulties, and looses, which would be subversive of the public interests.” So in Bigby v. United States, 188 U. S. 400, 407, 23 Sup. Ct. 468, 471 (47 L.

Ed. 517), the court said: “The government is not liable to be sued for the torts, misconducts, misfeasances, or laches of its officers or employés.” And, referring to the act of 1887, it further said: “There is no reason to suppose that Congress intended to change or modify that rule. On the contrary, such liability to suit is- expressly excluded by the act of 1887.” The plaintiff cites United States v. Bostwick, 94 U. S. 53, 24 L.

Ed. 65, in which it was held that the United States, as lessee of real property, was under an implied obligation not to permit waste, npr, by its failure to exercise reasonable care, to permit it to be committed. But in that case there was an express contract of lease, and no question was raised as to the authority of the government officer to make it, and the relation between the lessor and the United States was that of landlord and tenant. The plaintiff relies, also, on certain expressions of the court in Clark v.

United States, in which it was said: “In the present case, the implied contract is such as arises upon’a simple bailment for hire; and the obligations of the parties are those which are incidental to such bailment.” And the court went on to say that a bailee for hire— “is only responsible for ordinary diligence and liable for ordiñary negligence in the care of the property bailed.” The question here, however, is whether the government became a bailee for hire with the ordinary incidents of bailment, including responsibility for the negligence of its employés. What was said in Clark v.

United States on the subject of negligence was unnecessary to the decision of the case which was before the court. The only question was whether the government was liable to pay for the benefit which it had received. The question of negligence was not involved, for, as the court said: “Negligence is not attributed to tbe employés of the government.”

Section 3744 was intended, as was said in Clark v. United States, to protect the government against pillage and fraud, and it is mandatory. It originally appeared in the act of June 2, 1862, c. 93, 12 Stat. 411, entitled: “An act to prevent and punish fraud on the part of officers intrusted with making of contracts for the government.” It being well settled that the government is not responsible for torts of its employés, it cannot, we think, be made to answer for damages to property unlawfully taken into the possession of its employés.

There is good reason why the government should pay for that which it actually receives and of which it retains the benefit through the unauthorized act of its employes. But if it is to be held that the government is bound to all the incidents of an implied contract in every case where the oral agreement of its employés has been actually performed, what becomes of the protection intended to be afforded by

section 3744-? The plaintiff asserts that, even if it is not in a position to recover as upon a contract, express or implied, it is still entitled to recover unliquidated damages, since the statute gives a right of suit “for damages, liquidated or unliquidated, in cases not sounding in tort,” and that since the original taking of the property was with plaintiff’s, consent, and not a tortious act, the damages claimed do not sound in tort, citing United States v. Cornell Steamboat Co., 202 U. S. 184, 26 Sup. Ct. 648, 50 L.

Ed. 987, where it was held that a claim for salvage might properly be said to be one for unliquidated damages in a case “not sounding in tort,” under the provisions of the Tucker Act. The difficulty, however, is that the plaintiff’s claim for damages as it is presented to this court does sound in tort. It is a claim for damages for the wrongful acts and negligence of the defendant’s employés. “Causing harm by negligence is a tort.” Bigby v. United States, supra; Peabody v. United States, 231 U. S. 530, 34 Sup. Ct. 159, 58 L. Ed. 351.

The plaintiff contends that the defendant is liable for the damages caused by the taking and detention of the mules by the tax assessor, and asserts that at the expiration of the term for which the property was let, the defendant was bound to return the same to the plaintiff at Los Angeles, that the mules were not taxable in Arizona, and that the defendant wrongfully surrendered possession thereof to the tax assessor. The mules were in Arizona at the time of the levying of the annual taxes.

The law of that state provides in plain terms that: “All property of every kind and nature whatsoever- within this state shall be subject to taxation.” Civil Code, § 4846. The fact that the owner of the taxed property resided in California was immaterial. The property was taxable where found. 37 Cyc. 799. Nor was the property exempt from taxation by reason of the fact that at the time when the tax was assessed, the property was on an Indian reservation or in the possession of government officials. Thompson v. Pacific Railroad, 9 Wall. 579, 19 L. Ed. 792; Baltimore Shipbuilding Co. v. Baltimore, 195 U.

S. 375, 25 Sup. Ct. 50, 49 L. Ed. 242; Gromer v. Standard Dredge Co., 224 U. S. 362, 32 Sup. Ct. 499, 56 L. Ed. 801. A case very similar to the case at bar is United States v. Moses, 185 Fed. 90, 107 C. C. A. 310, in which it was held that the horses and harness of a contractor with the United-States government, which, on the default of the contractor an officer of the government has taken for use in completing the contract, were not, in the absence of

an act of Congress to that effect, exempt from taxation, the government having no ownership in the property. The court said: “It is true that property in the lawful possession of the United States, and in which the United States has a property interest, may not be seized by any process issued under the authority of the state. In this case, however, the United States had no property interest in the property in question. It had a right to the possession of said property under the terms of the contract before quoted until the work required to be done by the Widell-Finley Company was completed and no longer.

That work was completed, as stated, August 31, 1907. Its possession thereafter by Walter was for and on behalf of the Widell-Finley Company, and the mere fact that Walter was an officer of the United States, and claimed that his possession was for and on behalf of the United States, did not prevent its seizure by the sheriff as aforesaid. To render such seizure unlawful, it must appear that the officer had a legal right to hold and retain the possession of said property for and on behalf of the United States. A mere claim of right in the government is not sufficient.” We -find no error.

The judgment is affirmed. <S=5Por other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes