IN THE MATTER OF THE RIGHT OF AN AGENT OF THE UNITED STATES TO BE RE-IMBURSED HIS EXPENSES IN DEFENDING A SUIT AGAINST HIM FOR AN ALLEGED TORT COMMITTED IN THE PERFORMANCE OF HIS DUTY, AND ALSO THE AMOUNT OF THE JUDGMENT RENDERED IN SUCH SUIT.—AGENT-RE-IMBURSEMENT CASE. Evidence is presented tending to show that an agent of the Government in the performance of his duty hired a horse to travel to a point four miles distant from the place of hiring. He drove to that point and four miles beyond it. In returning to the place from which he started, and without his fault, the horse was injured. The owner of the horse sued the agent personally as in trover, and recovered judgment against him, including costs, for $363.56, which besides attorneys' fees and expenses, $106.50, the agent paid. He now asks to be re-imbursed by the Government from an appropriation made to pay "for actual and necessary expenses for transportation" of agents of the class of the claimant. Held: 1. This appropriation is not applicable to the payment of such judgment or expenses or to the re-imbursement of the agent who paid them. 2. On the facts stated, if true, the agent was personally liable as in trover for a conversion of the horse to his use. 3. The Government is not liable for the torts of its officers or agents, in the absence of any statute on the subject. 4. If, in the case stated, the horse were hired to travel all the distance for which he was used, if the agent were not guilty of any tort or conversion, and if the judgment were wrongfully rendered, still said agent cannot be re-imbursed for the amount paid by him, in the absence of any appropriation properly applicable to such payment, nor can a balance be certified in his favor, in the absence of a statute imposing an obligation upon the Government to pay such liability. 5. In such case there is no common-law liability of the Government; and, hence, a balance cannot be certified in favor of the claimant. 6. The common-law principles applicable as between a private principal and agent do not in all cases apply as between the Government and its agents. The evidence in this case tends to show the following facts: January 27, 1883, Charles E. Behle, a special examiner of the United States Pension Office, in the performance of his official duties, hired, at a livery stable in Fultonville, New York, a horse and cutter to drive to Stone Ridge, four miles distant. Having driven to Stone Ridge, he found it necessary to drive four miles beyond. On his return, and while beyond the point to which he hired the horse and conveyance to go, he met with an accident on the highway, which was torn up and obstructed by the new West Shore Railway Company. The horse's leg was broken, which rendered him useless, and made his destruction nec essary. The owner of the horse brought an action in trover against Behle, before the Supreme Court of the State of New York in the Montgomery County Circuit, for an unlawful conversion of the horse; and judgment was awarded to said owner for damages $250, and costs $113.56, total $363.56. 19 DEC, VOL 5——19 Charles E. Behle presents a claim, as follows: "The United States to Charles E. Behle, Dr. For actual and necessary expenses incurred in a suit of Samuel Donaldson against him for the loss of a horse, while engaged as special examiner, U. S. Pension Office, in Montgomery County, New York, on January 27, 1883, decided against him February 15, 1884, in the Supreme Court at Fonda, N. Y. Charles E. Behle, being duly sworn, deposes and says, that the above amount is just and true in all respects, that the horse, for whose loss he was sued, was employed by him in his official duties as special examiner solely, and while engaged in the investigation of the pension claim of Frederick Quackenbush, No. 201,063, and [was] destroyed without any fault or neglect on his part, that he had full control of the horse to go to all the places, and especially to the place of one affiant, McLaughlin, on the return from which place the accident happened, and that no part of the above account has been paid by the United States. CHAS. E. BEHLE, Sworn and subscribed before me this 7th day of May, A. D., 1884. J. LAWRENCE GETZ, [SEAL] Approved, May 9, 1884. Approved, May 9, 1884. Approved. Notary Public. E. G. RATHBONE, W. W. DUDLEY, Commissioner of Pensions. M. L. JOSLYN, May 23, 1884, this claim was disallowed by the First Auditor. It is now presented to the First Comptroller for his action thereon. The question for decision is-can said claim be lawfully paid? DECISION BY WILLIAM LAWRENCE, First Comptroller. The claimant is an agent of the United States under the authority of sections 474 and 4744 of the Revised Statutes, as amended by the act of July 25, 1882 (22 Stat., 175). The appropriation out of which payment is asked is that made by act of March 3, 1883 (22 Stat., 557), as follows: "For per diem, when absent from home on duty, for traveling examiners, in lieu of expenses of subsistence, not exceeding three dollars per day, and for actual and necessary expenses for transportation, two hundred thousand dollars. And any balance of the appropriation made for this purpose for the fiscal year eighteen hundred and eighty-three remaining unexpended at the close of the current fiscal year be, and the same is hereby, reappropriated and made available for the fiscal year ending June thirtieth, eighteen hundred and eighty-four." This act appropriates money "for actual and necessary expenses for transportation" of agents, including the plaintiff. The purpose of Congress evidently was, to provide for paying the usual, proper, and necessary traveling-expenses of such agents. It would be a forced and unnatural construction of the provision above quoted to say that it authorizes payment of the claim in this case. This claim includes attorneys' fees. They are not expenses of transportation. The claim also includes money paid in satisfaction of a judgment for damages for a tort committed by the claimant. A sum paid for damages for a tort cannot be said to be paid for traveling expenses. Lawful travel on official duty is not a tort. Money can be paid for the expenses of such travel, but not for the expenses of a tort. The judgment mentioned is, as between the parties to it, conclusive evidence that the defendant therein has been guilty of a tort (Packet Company v. Sickles, 5 Wall., 592; Russell v. Place, 94 U. S., 606; Gunn v. Plant, Id., 664; Cromwell v. County of Sac, Id., 351; Davis . Brown, Id., 423; Wells, Res Adjudicata and Stare Decisis, Sec. 3; 1 Greenleaf, Ev., § 528.) And in law the act of Behle, in riding a hired horse beyond the place to which he was hired to travel, was a tort for all the consequences of which said Behle was liable in damages. Thus, it is said to be a part of the law of bailment: "That if the thing [hired] is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but, if a loss afterwards occurs, although by inevitable casualty, he will generally be responsible therefor. In short, such misuser is deemed at the common law a conversion of the property, for which the hirer is generally held responsible to the latter, to the full extent of his loss." (Story, Bailments, § 413, citing numerous authorities; the Mayor and Council of Columbus v. Howard, 6 Ga., 213; 2 Hilliard, Torts, 3d ed., 526, ch. XLIV, sec. 8.) A public officer is personally liable for such tort (Wharton, Agency, 547; Wharton, Negligence, 285). And it is well settled that the Government is not liable for the torts of its officers or agents (Messenger's case, 1 Lawrence, Compt. Dec., 2d ed., 160; Wharton, Agency, 540; Gibbons v. United States, 8 Wall., 269; Cooke et al. v. United States, 91 U. S., 398; Whiteside et al. v. United States, 93 U. S., 257; Hart v. United States, 95 U. S., 318; Langford v. United States, 101 U. S., 316; Exporters' case, ante, 26). The Revised Statutes provide that in certain specified cases judg ments against some designated officers on account of their official acts shall be paid by the Government, and provision is made for the defense of suits in such cases (Rev. Stat., 771, 989, 3220; Dunnegan's case, 2 Lawrence, Compt. Dec., 2d ed., 87). In the absence of any statute on the subject, on principles of common law, the Government is not generally liable for judgments recovered against its officers by reason of any non-feasance, misfeasance, or malfeasance. The claimant seems to insist that the judgment against him was wrongfully rendered, that is, he alleges in the affidavit in support of his claim that the horse mentioned was "destroyed without any fault or ne glect on his [the claimant's] part, [and] that he had full control of the horse to go to all the places" to which he did go. This is not equivalent to an averment that his contract of hiring provided that he should have the horse to go to all said places. But assuming that such is what the affidavit was designed to say, still the question remains, does it aid the claim? In presenting the affidavit, the claimant necessarily assumes that the judgment is not, in his application for payment, conclusive ev idence that he was guilty of a tort, that is, that, as between him and the Government, the judgment is not conclusive of the facts decided by it (1 Greenleaf, Ev., section 537). If this be conceded, it does not aid the claimant. 1. There is no appropriation to pay the claim. 2. Inasmuch as the Government is not liable for the torts of its officers, it cannot be liable for the damages lawfully recovered in a judg ment founded on a tort. The same rule does not always apply to the Government which applies between private parties as principal and agent. As to these latter, the general rule is, that "agents are entitled to be re-imbursed all advances made in the regular course of a legal employment" (Wharton, Agency, 314; Paley, Agency, by Wa terman, 108, citing authorities; 2 Hilliard, Torts, 3d ed., 464, ch. XL, sec. 23). But it has also been said that "an agent cannot, of course, recover [from his principal] disbursements made by him [the agent] without cause" (Wharton, Agency, 315, citing L. 52, D. 17, 1; Howard v. Tucker, 1 B. & Ad., 712; Wolfe v. Horncastle, 1 B. & P., 323; Pickering v. Demerrit, 100 Mass., 416; Day v. Holmes, 103 Mass., 306). And it has further been said, as to this question, that, in order to enable an agent to recover from his principal for disbursements, "the agent's disbursements must not only be made ex causa mandati, but inculpabili ter, i. e., that it has not been the agent's fault which has given occasion to the expenditure or loss" (Wharton, Agency, 315, citing Bell, Com., 7th ed., 534; Poth., Mand., 78, et seq.; Scott, 9 July, 1752, Elch. Caut., 24; Watson v. Bruce, M., 5964; Huntley v. Sauderson, 1 Cr. & Mees., 467; Simpson v. Penton, 2 Id., 430; Alexander v. Vane, 1 M. & W., 511). The judgment against the present claimant is such evidence of fault that, if open to inquiry, it is not disproved by other evidence. 3. If said judgment were wrongfully rendered, that is, if, in fact, no tort were committed, and this question is open to inquiry, it may be somewhat difficult to determine the GENERAL PRINCIPLE as to the liability of the Government. In Stocking v. Sage (1 Conn., 522), Swift, C. J., said that: "Where an agent, acting faithfully, without fault, in the proper service of his principal, is subjected to expense, he [said agent] ought to be re-imbursed. If sued on a contract made in the course of his agency pursuant to his authority, though the suit be without cause, and he eventually succeeds, the law implies that the principal will indemnify him, and refund the expense (Wharton, Agency, 314, citing Howes v Martin, 1 Esp., 162; Delaware Ins. Co. v. Delaunie, 3 Binn., 295; Frix ione v. Tagliaferro, 10 E. F. Moore, 675).” But, as already stated, the rules of law applicable between private parties as principal and agent do not always apply as between the Government and its agents. And, in practice, long usage has settled the rule that, generally, the Government only pays judgments rendered against its officers or agents when some statute in terms so requires, and also in those cases in which an appropriation has been made in terms sufficiently clear to indicate a purpose to make such payments. There may be cases in which appropriation acts will be favorably construed so as to indemnify officers or agents against loss arising from a lawful performance of a public duty without fault or negligence (Wharton, Agency, 344, 346). It is a general rule in the law of agency as among private persons and corporations, that a principal is liable to third persons in a civil suit for the torts of his agent in the course of his employment (Story, Agency, § 452; Wharton, Negligence, 156; Wharton, Agency, 475). But the Government as a principal is not so liable. A private principal is generally liable to re-imburse his agent for expenses to which he may be illegally subjected. But the Government as a principal is not so liable. The same rule of public policy, which exempts the Government from liability for the torts of its agent, generally exempts it from any obligation to re-imburse its agent for expenses to which he is unlawfully subjected. The Government does not, in employing an agent, guarantee that he will not be subjected to illegal exactions, judgments, or liabilities, nor does it agree to indemnify him, if he is so subjected. In some cases an officer may have a just claim on the Government to be re-imbursed for expenses of a litigation to which he has been subjected. Thus, it has been said by Attorney-General Black (9 Op. Att.Gen., 52), that: "When an officer of the United States is sued for doing what he was required to do by law, or by the special orders of the Government, he ought to be defended by the Government. This is required by the plain principles of justice as well as by sound policy. No man of common prudence would enter the public service if he knew that the performance of his duty would render him liable to be plagued to death with lawsuits, which he must carry on at his own expense. For this |