
    MAX L. O’NEAL v. THE UNITED STATES
    [No. B-434.
    Decided March 2, 1925]
    
      On the Proofs
    
    
      Loss of funds; relief from Mobility; burden of proof. — The burden of proof in cases brought under section 1062, Rev. Stats., for relief from responsibility for the loss of funds, must rest upon the officer sustaining the loss, and the court will not decree relief unless it is shown by him that such loss occurred without fault or negligence on his part.
    
      The Reporter's statement of the case:
    
      Mr. R. M. Foster for the plaintiff. Mr. Ashby Williams was on the brief.
    
      Mr. Dwight E. Rorer, with whom was Mr. Assistant Attorney General William J. Donovan, for the defendant.
    The facts in the case are set forth in the following
   MEMORANDUM BY THE COURT

This is the case of an Army officer who brings suit for relief under section 1062 of the Revised Statutes from responsibility for the loss of $1,382.55 of Government funds for which the officer was responsible and for which sum he has been charged in his official accounts by the accounting officers of the Government. The plaintiff is not now in the Army, and before resigning therefrom paid the above amount in full to the United States.

Under section 10G2, Revised Statutes, a disbursing officer is not entitled to relief unless the loss occurs “ without fault or negligence on the part of such officer.”

In the case of Boggs v. United States, 44 C. Cls. 367, 384, it is said that “ the responsibility of the court in this class of cases is very great. Each case must depend upon those conditions and circumstances which necessarily arise out of the proof when presented. As, however, redress can only be had in exceptional cases, there is at the outset a presumption of liability, and the burden of proof must rest upon the officer who has sustained the loss.”

In the case at bar we are satisfied that the plaintiff did not exercise that watchfulness over the funds in his possession with such a degree of care as to fairly entitled him to relief. The plaintiff placed the money in the care of a sergeant and permitted both the money and the sergeant to get beyond his control, and then waited forty-five days before taking any steps to ascertain what had become of the money. He exercised no diligence in discovering the loss; and it can not be said that he is without fault or negligence. See also Stevens v. United States, 41 C. Cls. 344; Penrose v. United States, 42 C. Cls. 29; Woog, administrator, v. United States, 48 C. Cls. 80.

The petition of the plaintiff must be dismissed.  