#### GEORGE H. PENROSE v. THE UNITED STATES.

[No. 23971.

Decided December 3, 1906.]

*On the Proofs.*

A quartermaster on a Government transport continues the employment of his predecessor’s clerk. He makes no inquiries concerning the clerk’s reputation for honesty, but relies solely upon the assurances of his predecessor, who is the clerk’s father, that the clerk was thoroughly conversant with the work. He allows the clerk to contiue to have the combination of the safe in which are Government funds. He has no means at hand for changing the combination, but he makes no attempt to get it changed. The clerk abstracts $5,151 from the safe and on the same day deposits $4,060 to the credit of the Treasurer of the United States in the name of his father, and the money is covered into the Treasury to the credit of the appropriation for army transportation.

I. The *Disbursing Officer's Act*(Rev. Stats., § 1059, 1062) is not limited to times of war.

II. The court has jurisdiction under the disbursing officer’s act of every loss which was without fault or negligence on the part of the officer, including a loss caused by the embezzlement of a quartermaster’s clerk.

*30III. Where a disbursing officer made no inquiry as to the character and habits of a clerk and allowed him to have the combination of a safe in which his official funds were kept, and, not being himself able to change the combination with the appliances at hand, made no effort to have it done, he was not free from fault or negligence and is responsible for a loss caused by the embezzlement of his clerk in abstracting money from the safe.

IV. Where a quartermaster’s clerk embezzles public money from the quartermaster and contemporaneously transmits money to the Treasury, his object being to make good the account of » another quartermaster, his own father, the first quartermaster is not entitled to a decree directing that the money in the Treasury be credited to himself, notwithstanding the inference that the money deposited in the bank and covered into the Treasury was a part of the fund taken from the claimant.

*The Reporter's*statement of the case :

The following are the facts of the case as found by the court:

I. The claimant was appointed captain and quartermaster in the Army of the United States April 8, 1901, during recess of Congress, and was thereafter duly appointed captain and quartermaster on December 26, 1901, which latter appointment was thereafter duly confirmed.

II. Prior to and until June 30,1901, Capt. and Asst. Q. M. P. H. McCaull, U. S. Yolunteers, Was in charge of the U. S. army transport Egbert, then at Seattle, Wash.

III. Upon the request of his father, Capt. P. H. McCaull, acting assistant quartermaster, John McCaull was appointed quartermaster’s clerk April 14, 1899, and assigned to duty on the transport ship McGlellan, under his father. On July 14, 1899, he resigned as clerk on the *McGlellan.*On July 24, 1899, he ivas appointed, upon the request of his father, P. PI. McCaull, on the U. S. hospital ship *Missouri.*He served as quartermaster’s clerk on said vessel, which was later converted into a transport and renamed the Egbert, under his father until June 30, 1901. From July 1, 1901, to July 30, 1901, he served on the transport *Egbert*under George H. Penrose, the claimant.

IV. For the safe-keeping of the funds in charge of the quartermaster on said transport, the Government provided *31a combination safe in the storeroom of said transport; that said John McCaull, under the supervision of his father, had charge of such funds and of the safe in which they were kept and knew the combination thereof.

V. On June 30, 1901, acting under orders, claimant took charge of said transport *Egbert*at Seattle, Wash., succeeding Capt. and Asst. Q. M. P. H. McCaull.

VI. When the claimant took charge of the transport Egbert, June 30, 1901, John McCaull was highly recommended to him by his father, Capt. P. H. McCaull, as thoroughly conversant with all the work, and claimant continued him in service; that the combination of the safe was made known to the claimant by the said John McCaull.

VII. There was no key or other provision for changing the combination of such safe, nor instructions concerning the means by which such combination could be changed, nor had petitioner any means of changing such combination. He made no effort to get the combination changed.

VIII. Under orders, the said transport was to sail from Seattle, Wash.-, for Alaska, July 31, 1901; that a few days prior thereto, and in anticipation thereof, claimant had received as such quartermaster $9,513.41, and had disbursed therefrom $3,245.91, leaving a balance, which had been checked, on July 26, 1901, of $6,267.50 in said safe.

IX. On or prior to July 29,1901, John McCaull, the clerk, unlawfully and without the knowledge or consent of the claimant took $5,151.89 of said funds from said safe. On said date John McCaull deposited with the Seattle National Bank, of Seattle, Wash., to the credit of the Treasurer of the United States, in the name of Capt. P. H. McCaull, assistant quartermaster, U. S. Volunteers, the sum of $4,062, and the said amount was covered into the Treasury to the credit of the appropriation for army transportation. Whether the money so taken from the safe was the identical money so deposited in said bank does not appear.

X. On July 30, 1901, the day before the transport was to sail from Seattle, said Clerk McCaull disappeared, taking with him the key to the storeroom in which the transport safe stood.

*32XI. On the morning of July 31,1901, such transport sailed without such clerk, and thereupon claimant caused the door of the storeroom containing such safe to be broken open and thereafter forced the safe open, and thereupon, in the presence of Lieut. P. H. Mullay, Fourteenth TJ. S. Infantry, coxmted the cash and found that there was missing $3,331.4S quartermaster’s funds and $1,820.41 commissary’s funds, making a total of $5,151.89; that there was a sealed ¡package, shaped like bank notes, marked “ Capt. P. H. McCaull, Asst. Q. M. funds, 1901, $4,060.”

XII. On the arrival that night, about 10 p. m., of the transport at Victoria, British Columbia, Captain Penrose telegraphed the quartermaster of the Department, at Seattle, Wash., of the breaking open of the storeroom, of the opening of the safe and finding that the commissary’s and quartermaster’s funds were missing, of the absence of the clerk, describing him, and requesting that such quartermaster find the certificate of deposit of the Seattle National Bank, July 29, to the credit of Captain McCaull, $4,062.02, account army transportation, and that he do everything to apprehend the fugitive, and thereafter, on the arrival of the vessel at Fort St. Michael, Alaska, on August 16, Captain Penrose made a full report to Captain Bingham, chief quartermaster, Department of Alaska, and urged that the certificate of deposit for $4,062.02, referred to, should be returned to him as it was evident that to obtain the funds to make such deposit Clerk McCaull had robbed Captain Penrose.

XIII. By settlement No. 27014, dated November 3, 1902, the claimant was held responsible by the accounting officer of the Treasury in the amount of quartermaster’s funds so stolen, $3,331.48, and by settlement No. 29249, dated March 24, 1903, he was held so responsible for the amount of subsistence fund so stolen, to wit, $1,820.41.

*Mr. Ilenry G. Willcox*for the claimant.

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

• Howry, J.,

delivered the opinion of the court:

This is a suit wherein the court is asked to direct the accounting officers of the Treasury to give the plaintiff, as pay*33master in the Army, credit in the settlement of his accounts for $5,551.90, which amount, he says, was lost through the embezzlement of a clerk under the circumstances disclosed by the findings.

Section 1059 of the Revised Statutes provides relief on the claim of any paymaster, quartermaster, commissary of subsistence, or other "disbursing officer of the United States for relief from responsibility on account of capture or otherwise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge and for which such officer was and is responsible.

Section 1062 defines the jurisdiction of the court to ascertain the facts of any loss of these disbursing officers in the cases provided for in the above-mentioned section, and makes it the duty of the court to make a decree setting forth the amount and for the proper accounting officers of the Treasury to allow to such officer the amount decreed by the court as a credit in the settlement of his accounts.

It is contended by the defendants that relief should be denied in this case because the act under which the relief is prayed relates to a period of war.

Cases of this kind have been too often before the courts, and especially before this court, to consider a plea to the jurisdiction because the loss is the result of causes other than capture in time of war.

Again, it is suggested that the record presents a case of breach of trust and that such a case is not within the statute. If this relates to jurisdiction, the objection is not well taken, because every loss without fault or negligence is the subject-matter of relief. A loss occasioned by a breach of trust may, under some circumstances, possibly, come within that rule. We do not say that it would or would not. It is not for trial courts to refuse to hear and determine in any case of loss without determining whether the loss was the result of fault or negligence from the facts in evidence.

Plaintiff’s contention is that he was justified in trusting the clerk who appropriated the money, because it was impossible for the plaintiff to attend personally to all-the duties imposed upon him on the transport and act as clerk. He for*34tifies his argument by the decision of this court in the early case of *Howell*(7 C. Cls. R., 512), where it was held that the officer was entitled to credit for the act of his clerk in taking-money from the safe under circumstances thought to be similar to this case. There the court found that the fund appropriated was necessarily under the control of a chief clerk. The funds here were not necessarily under the control of this subordinate. The plaintiff has not proven that it was impossible for him to safely keep the money himself. For aught that appears he could have done so, but he permitted his clerk to continuously carry the combination outside of any effort to change it or care for the money otherwise.

Neither is it shown that this subordinate was commended for his honesty. The general presumption of good character ordinarily obtains, but when plaintiff continued the employment of the son of his predecessor without inquiry into the habits and character of the young man he did so at his own risk.

It is contended next that “ a paymaster may in the discharge of his duties intrust a hitherto worthy clerk in various ways without being liable for negligence.” *(Stevens*v. *United*States, 41 C. Cls. R., 344.)

This is true in the abstract and possibly applicable in case of a money loss. But for the reason stated this rule can not be invoked on the facts presented by this record. The officer should have retained the general control of the money. But it is shown that he turned all his funds over to his clerk and gave this clerk the key or combination, and subsequently had to force the safe open, only to find that the funds had been taken.

It is claimed, however, that because the circumstances point to the conclusion that the embezzling clerk stole the money for which plaintiff was responsible and deposited a part of it -in bank to the credit of the clerk’s father to make that father’s accounts balance, and because the United States received that money for another, that plaintiff should be credited with the amount. In other words, plaintiff contends that the credit was erroneously entered and he should now have the benefit of the amount actually taken.

*35There is no proof that the sum deposited in the bank and covered into the Treasury was a part of the fund taken from plaintiff. The identity of the funds stolen with that much deposited in the bank and which subsequently went into the Treasury is wanting. But suppose the identity of the two sums be proven, we are unable to see how this could be available to the plaintiff in not accounting for the funds in his possession. Another person and another account got the benefit of whatsoever was credited. That other person was discharged from his liability to the Government, and he is not before the court in this proceeding. If the credit was erroneously given to one not entitled to it through the scheme of the defaulting clerk, defendants are not at fault, but plaintiff is. Quartermasters’ funds and commissary funds were receipted for by the plaintiff, and he became liable to account for this money as subsistence funds. Army transportation funds were credited in the name of some other officer. The Government would apparently be without remedy if we should direct plaintiff’s accounts to be credited with the fund taken from him.

Accordingly the petition must be dismissed.