
    PIERRE C. STEVENS v. THE UNITED STATES.
    [No. 23109.
    Decided April 23, 1906.]
    
      On the Proofs.
    
    A paymaster stationed at Atlanta is obliged to pay troops stationed at Fort Barrancas, Florida. He leaves liis office in Atlanta with his clerk and an office messenger, who carries his satchel containing over five thousand dollars. On the way to the train he loses sight of the messenger, who does not reappear until after the train has gone and who explains to the paymaster his not having arrived at the station with the satchel in time for the train. The paymaster does not examine the satchel that night nor the next morning nor until after he arrives at Fort Barrancas, when he finds a package of paper money gone. The messenger has been 18 years in the paymaster’s office and has been trusted and found honest. It subsequently appears that he has abstracted the money.
    I.Under Revised Statutes, § 1059, a disbursing officer is not entitled to relief for loss of funds unless the loss occurs “ while, in the line of his duty.”
    
    II.Under Revised Statutes, § 1002, a disbursing officer is not entitled to .relief unless the loss occurred “ without fault or negligence on the part of such officer.”
    
    III. For a paymaster to allow a messenger carrying a large amount of money to pass out of his sight and, on finding him,'to receive back the satchel in which the money had been placed without examination, and to make no examination that day or the next morning before leaving the city, was negligence.
    IV. The meaning of the words “or othenoise” in section 1059 have been construed to apply to losses occurring in any other way than by capture. A construction of these words is not an open question in this court.
    V.A distinction must be made between the official relation of a paymaster with his clerk and that of his office messenger. A clerk occupies a position of trust and confidence; and the decision in this case does not extend to cases where the paymaster may have reposed the same trust and confidence in his clerk.
    VI.A decree in this class of cases is not for payment but for a credit to be allowed by the accounting officers of the Treasury in the settlement of the officers’ accounts; and the accounts of paymasters in the Army never being closed, the court has' jurisdiction and may render such a decree, although the claimant has been required to make good the loss and has done so.
    
      
      The Reporters’ statement of the case:
    The folloAving are the facts of the case as found by the court:
    I. The claimant herein, after having served sixteen years in the War Department, ivas, on September 9, 1898, appointed a major and additional paymaster of volunteers, and served in that capacity until May 7, 1901, when he ivas appointed paymaster in the United States Army with the rank of captain, and since that date has served in that capacity.
    II. In November, 1901, this claimant was stationed at Atlanta, Ga., and in the performance of his duty as paymaster he was obliged to pay the troops stationed at Fort McPherson, Ga.: Fort Sumter and Sullivans Island, S. C. ; Augusta Arsenal, Ga.; Fort Screven, Ga.; Fort Fremont, S. .C.; Fort Dade, Fla.; Key West Barracks, Fla.; Fort Bar-rancas and Fort Pickens, Fla.; Fort Morgan, Ala.; Jackson Barracks and Fort St. Philip, La.
    Payments at Fort Barrancas were made monthly and it was the custom for the claimant to make these payments in person at some early day in the month, traveling by train leaving Atlanta at 4.20 p. m., accompanied by his clerk, W. A. Milstead. .
    III. When the claimant arrived and took up his station at Atlanta in November, 1900, his predecessor, Maj. E. W. Hal-ford, paymaster, U. S. Army, had left. The office messenger, James H. Alexander, who had been at this time in the paymaster’s office at Atlanta for about eighteen years, delivered to the claimant on arrival a sealed envelope containing the combination of the safe, which had been left with him by Major Halford for delivery to the claimant.
    Until the loss hereinafter stated said Alexander had enjoyed the confidence of the claimant’s predecessors as an honest, upright, efficient, and trustworthy, messenger, and as such had been commended to the claimant by his immediate predecessor, E. W. Halford, major and paymaster, United States Army, and the claimant, prior to the loss of the money hereinafter stated, had no reason to believe otherwise.
    IV. On the morning of the 8th day of November, 1901, the claimant drew the necessary amount of money to pay the troops at Fort Barrancas from tbe Lowry National Bank, in Atlanta, and, accompanied by bis clerk, carried it to bis office in tbe Empire Building in Atlanta and there verified tbe amount. Tbe paper money was banded together by elastic bands and put in manila wrapping paper, making a square package, and tbe subsidiary coin was placed in a small canvas bag, and both currency and coin were placed by him in a satchel. On top of it were placed the necessary books and rolls. The satchel was then locked and placed by him in his office safe, which he locked by a combination lock, where it remained until after he returned from luncheon. In the afternoon he opened the safe, removed the satchel from the safe, opened it, and put in his blouse, which he wore when paying troops, on top of everything else, and locked the satchel.
    V. When it was time to start for the 4.20 p. m. train, the said messenger, James II. Alexander,- who was familar with the claimant’s ordinary method of packing his satchel, was called. He took both the satchel containing the funds and the claimant’s small satchel containing his personal effects and followed tlie claimant and his clerk out of the building toward the railroad station.
    The claimant carried the key of the money satchel. On leaving the building for the railroad station the claimant and his clerk ran across the street to a cigar stand opening like a window on the street, to purchase some smoking materials, which occupied about a minute. In the meantime the messenger disappeared from the claimant’s sight, but was seen by the claimant’s clerk ahead of them, going on the way to the railroad station, immediately after which he was out of sight of both the claimant and his clerk, and he was not seen by them or either of them until after the claimant had stepped off the car, as hereinafter stated. On a former like occasion the messenger had become separted from the claimant.
    On reaching the station the claimant went at once to secure his ticket, but did not find the messenger waiting for him there. After securing his ticket the claimant went to the point where the sleeper taken on at Atlanta awaits the northern train. Not finding the messenger there, claimant sent his clerk to see if be bad overlooked him at the ticket office. The clerk returned, saying that he was not there, and the claimant asked him to go once more and make a thorough search. The claimant stood on the platform step of the cars as it began to move slowly through the station, and when the car was midway down the shed the clerk returned, saying the messenger could not be found.
    The claimant then stepped off the car and passed through the main entrance. The clerk passed through the shed to the extreme end, and passed through the end of the shed on Pryor street. As the claimant neared the corner the messenger came from around the corner with the two satchels and stated to the claimant that he had waited for him at the corner, and thought, perhaps, that he was just behind, and did not see him cross the .street. After ascertaining at the ticket office that the next train for Pensacola would not leave until 5 o’clock the next morning the claimant, his clerk, and the messenger returned to the pay office in the -Empire Building. The satchel was placed on the table adjoining the claimant’s desk, while he wrote a telegram, and it was then locked in his safe with the combination lock. The messenger was separated from the claimant and his clerk long enough to abstract from the bag the money which was afterwards found to have been taken.
    VI. The claimant and his clerk spent the night together in ■ the same room in the Kimball House at Atlanta, and went to the claimant’s office together in the morning, opened the safe, removed the satchel, and the clerk, proceeding with the claimant, carried it to the 5 o’clock train to Pensacola. The satchel was not opened until arriving at Fort Barrancas, when the claimant unlocked the satchel, removed his blouse, and the clerk took out the rolls, preparatory to making payments. The claimant, after putting on his blouse, discovered that the package of paper money, amounting to $4,765, was gone.
    VII. The same messenger had been trusted by previous paymasters by being sent out alone to get small sums of money from the bank and to deposit money. When the claimant or his predecessor went out on pay trips, it was the custom for the messenger to take the satchel with the money-in it to the train, remaining almost alwaj^s in sight of the paymaster, whose satchel, with the money therein, he was carrying.
    Said messenger had been found by the claimant and -by his predecessors for many years to be sober, industrious, devoted to his duty, and in every way trustworthy and reliable, and possessed a general reputation to this effect.
    VIII. The messenger, James H. Alexander, was arrested immediately after the claimant’s return to Atlanta, put in jail and held there for several days, but on the preliminary hearing was released by the judge of the police court and returned to duty in the office.
    On January 11, 1902, he reported to the claimant that he had found $2,755 of the stolen money in an old chest in a room adjoining the claimant’s office, and gave this sum to the claimant, leaving a balance of $2,010 not found, which sum was afterwards paid by the claimant into the Treasury of the United States in settlement of said loss.
    Thereafter said Alexander was indicted by the United States Circuit Court for the northern district of Georgia, and on the 10th day of March, 1902, was tried, found guilty, and sentenced to three years in the United States penitentiary at Atlanta, Ga.
    IX. Upon the foregoing findings of fact the court finds the ultimate fact, so far as it is a question of fact, that the claimant herein was not free from fault or negligence in permitting his messenger carrying the public funds to be separated from him, as set forth in the findings.
    Mr. Wm. B. King for the claimant. Messrs George A. c& Wm: B. King were on the brief.
    
      Mr. George M. Anderson (with whom ivas -Mr. Assistant Attorney-General Van Orsdel) for the defendants.
   Peelle, Ch. J.,

delivered the opinion of the court:

The claimant, a paymaster in the United States Army, seeks relief by way of credit in the settlement of his accounts for money lost through the theft of a messenger, as he avers, without fault or negligence on his part.

The relief is sought under paragraph 3 of Revised Statutes, section 1059 and section 1062, which provide as follows:

“ Sec. 1059. * * * Third. The claim of any paymaster, quartermaster, commissarjr of subsistence, or other disbursing officer of the United States, or of his administrators or executors, 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 held responsible.
“ Sec. 1062. "Whenever the Court of Claims ascertains the facts of any loss by any paymaster, quartermaster, commissary of subsistence, or other disbursing officer in the cases hereinbefore provided, to have been without fault or negligence on the part of such officer, it shall make a decree setting forth the amount thereof, and upon such decree the proper accounting officers of the Treasury shall allow to such officer the amount so decreed, as a credit in the settlement of his accounts.”

Upon the facts found three questions arise. First, was the money lost by the claimant by “ capture or otherwise, while in the line of his duty ? Second, was such loss “ without fault or negligence on the part of such officer? Third, is the claimant concluded from the relief sought by reason of having paid into the Treasury of the United States the amount of money lost ?

The first question, respecting the manner of loss, has been answered by this court. That is to say, loss by “ capture or otherwise has been construed to mean, not only loss by capture and kindred ways under the rule of ejusdem generis interpretation, but the words “ or otherwise ” have been construed to apply to losses occurring in any other way while the officer was in the line of duty and free from fault; such as loss by breaking a safe in the daytime (Clark’s case, 11 C. Cls. R., 698); loss from a train while in motion (Smith’s case, 14 C. Cls. R., 114); failure of bank (Hoyle’s case, 21 C. Cls. R., 189); loss by fire (Hoyle’s case, 21 C. Cls. R., 300), while relief has been granted in several other cases for loss by robbery.

Therefore, the construction of the words “ or otherwise ” in the more limited sense invoked by the claimant is not an open question in this court.

As to whether the loss occurred while the claimant was in the line of duty, the facts found show that, at the time, he was on his way to Fort Barancas to pay the troops stationed there, and that being service “ in the line of his duty,1’ was he, while so engaged, negligent in the care of the money intrusted to him for that purpose ? Here a distinction must be made between the official relation of a paymaster with his clerk and that with his messenger. That is to say, a clerk, in his relations to the paymaster, occupies a position of trust and confidence very different from that which exisls between a paymaster and his messenger. A paymaster may, in the discharge of his duties, intrust a hitherto worthy clerk in various ways without being liable for negligence, while to repose the same trust and confidence in a messenger would render him liable for negligence.

In the present case the claimant was not negligent in directing the messenger to carry his satchel containing the money to the depot, but when he permitted him to get out of his sight and become separated, as set forth in finding v, the messenger was then beyond his control, and, being beyond his control, it’ can not be held that the loss occurred without fault or negligence on the claimant’s part.

Nor was the claimant diligent in discovering the loss. If he had been, he would have examined his satchel immediately upon finding the messenger instead of waiting, as he did, until the next day. Had this course been pursued, there can be little doubt but that the money would have been discovered.

The claimant cites a number of cases which he contends are somewhat analogous to the present case, among which are the Glenn case (4 C. Cls. R., 501), where the money was stolen by soldiers; the Howell case (7 C. Cls. R., 512), where the loss occurred through the theft of a clerk; the Christian case (7 C. Cls. R., 431), where the loss occurred through the plundering of a bank at the time of the Quan-trell massacre, and other cases. But they are unlike the present case in this: That here the loss occurred through the vlieft of a messenger with* whom the claimant had voluntarily intrusted the money and then permitted him to become separated from him.

With this conclusion we might stop here, but we will notice the third question — i. e., By paying the money into the Treasury of the United States, as averred in ihe petition, is the claimant therebj'- concluded from the relief sought?

Tn the Hall case (9 C. Cls. R., 274) the court held that to entitle an officer to relief he must not only have been, but still be, responsible to the Government for what he lost, the effect of a decree in such case being simply to release the officer from existing liability. But in the case of Smith (14 C. Cls. R., 114) that ruling ivas modified upon the theory that under the general practice of the Treasury Department, the accounts of paymasters in the United States Army were never closed. On appeal (105 U. S., 620), while that case was reversed on the question of the statute of limitations, the court in its opinion respecting the time when the officer should have applied for relief in this court, said:

“ It sufficiently appears in this case that claimant’s right was authoritatively denied when he was ordered by the Paymaster-General to pay the money, and that then was the proper time to apply for the protection of the Court of Claims by asking its decree that he should be credited on his account with that sum.”

From that language standing alone.we might be justified in holding in the present case that- relief should have been sought by the claimant in this court before paying the money into the Treasury. But in that same case the court also said:

“ Nor does it appear that there was any balance of money of the Government in the hands of Smith either when he brought suit or when he obtained judgment, on which it could be applied as a credit.
“ It is, therefore, a case in which the judgment amounts to a recovery of the sum once paid by claimant, and as the statute gives no authority to make this effectual by repayment out of the Treasury, it is to be collected by permitting him to retain it out of a future balance in his hands.”

Interpreting the language there used this court is supported in its holding that the accounts of paymasters, never being closed, the accounting officers may secure immediate payment of balances due from them and yet open and readjust their accounts,at any time. But as the loss here complained of was not without fault or negligence on the part of the claimant, he is not entitled to the decree prayed for, and his petition is therefore dismissed.  