considered under section 26 of the Emergency Relief Appropriation Act of 1939 (53 Stat. 927), and that of Mr. Meyer under the act of December 28, 1922 (42 Stat. 1066), both of which, in authorizing the consideration and determination of claims for property damage, provide that the damage must be caused by the negligence of a Work Projects Administration employee, while acting within the scope of his employment. All three claims were disallowed on April 6, 1940, for the reason that the Work Projects Administration employee was deemed not to have been acting within the scope of his employment, inasmuch as he was smoking in violation of explicit instructions to the contrary. In view of the foregoing, the Administration, as a matter of law, is constrained to recommend against the enactment of the proposed legislation. However, since the individual responsible for the fire was performing work for the Adminis tration, your committee, as a matter of grace, may desire to report the bill favorably. In the event that it does, there is set forth below information pertaining to the amount of damage sustained by the several claimants. In an affidavit of August 3, 1939, Mr. Meyer avers: * * "Since the burning of this pasture it will be necessary for me to obtain other pasture for the 130 head of cattle, which will cost me at least $0.75 per head, and it will be necessary to pasture these cattle for a period of 6 months until the above damaged * acres will have grown out sufficient to take care of them. In the event that I am unable to find suitable pasture, which is scarce in this vicinity, it will be necessary for me to feed them hay. This will require about 20 tons per month, or about $150 per month for 6 months, or $900; in the event I can secure pasture it will cost me $585. "My loss from the burning of the said * * * pasture due to negligence * * * will cause me a loss of at of Work Projects Administration workers least $585 and possibly $900 if I am unable to find pasture In the same affidavit Mr. Meyer admits to being in possession of 180 acres of pasturage, in addition to the damaged plot. In a supplementary affidavit of January 17, 1940, Mr. Meyer declares: "Since the burning of my pasture * * * on July 26, 1939, it has been necessary for me to buy from Cherokee Cotton Oil Co., of Fort Smith, 300 sacks of meal * * * to a total amount of $829.18, this is beginning with September 9, 1939, and through January 17, 1940. I have also during October and November, 1939, purchased hay from C. N. Geren & Sons, of Fort Smith, to amount of $109. Between July 26, 1939, the date of fire, and October 2, 1939, I purchased hay from Joe Karnopp, of Fort Smith, to the amount of about $300. * * * I have had to purchase a total of about $1,238 worth of hay and cottonseed meal and hulls for my cattle from date of fire until this date. * * * * "After the fire I was unable to rent any other pasture for my cattle, and it was necessary for me to buy the above feed to the amount of $1,238 and if I had the use of the pasture it would not have been necessary for me to buy over $80 to $100 worth of feed, and at this date I have a net loss of about $1,100 with the necessity of buying more feed to finish the winter." Mr. G. M. Measeles, county agricultural agent, in a letter of April 25, 1940, to Mr. Ben T. Rolfe of our State administration for Arkansas, states: "Since this land had been available for grazing until July 26 approximately three-fourths of the grazing period had been available. Therefore, he suffered an actual loss of about one-fourth of the value of the pasture. "This land will normally produce around 1 ton of Bermuda grass per acre when cut, so figuring on this basis considering 160 tons of hay from the pasture, valued at $8 per ton, he would have suffered a loss of about $2 per acre, or 25 percent of the normal value." Several residents of the vicinity of Mr. Meyer's pasture, whose affidavits are enclosed, also state that the loss to Mr. Meyer was about $2 per acre. It further appears that the damage to the 7 acres of Mr. Hach's pasturage was estimated by him to be $2 per acre. Mr. Kelley's claim of 10 cents for each of the 275 fence posts destroyed by the fire was reported by our State administration for Arkansas to be a reasonable valuation. There are enclosed herewith photostatic copies of pertinent papers. Sincerely yours, CORRINGTON GILL, STATE OF ARKANSAS, STATEMENT OF OTTO MEYER County of Sebastian, ss: On this day personally appeared before me, the undersigned notary public, within and for the county and State aforesaid, Otto Meyer, who after first being duly sworn deposes and says as follows, to wit: The copy of lease I have to NW4 sec. 36, T. 8 N., 32 W., under date of November 25, 1936, is the only lease I have had to said land. Mr. Kelley and myself have agreed orally to an extension from year to year. I have spoken to Mr. Kelley about an extension for the year 1940 but we have not made an agreement at this time. There is a balance due Mr. Kelley, under this lease, for rental which I have been unable to pay at this date due to necessity of buying feed for my cattle caused by the burning of pasture on July 26, 1939. I am not sure what balance I owe Mr. Kelley. Since the burning of my pasture on above-described lands on July 26, 1939, it has been necessary for me to buy from Cherokee Cotton Oil Co., of Fort Smith, 300 sacks of meal and a large quantity of cottonseed hulls, an itemized statement being attached and made a part of this statement, to a total amount of $829.18; this is beginning with September 9, 1939, and through January 17, 1940. I have also during October and November 1939 purchased hay from C. N. Geren & Sons, of Fort Smith, to amount of $109. Between July 26, 1939, the date of fire, and October 2, 1939, I purchased hay from Joe Karnopp, of Fort Smith, to the amount of about $300. I do not have a statement at this time for that hay, as Mr. Karnopp was unable to make a statement for me as his books were out at his farm. I have had to purchase a total of about $1,238 worth of hay and cottonseed meal and hulls for my cattle from date of fire until this date. The hay on the above-described land which I had leased from Mr. Kelley was Bermuda grass; I was letting the grass grow and was going to turn my cattle onto that pasture about the 1st of October, at which time the grass should have been about 18 to 24 inches high and at first frost would have been good hay; and I would have carried my entire herd of 130 cattle on this pasture until about March 1. During the year 1937 and 1938 this pasture carried the same number of cattle for the above periods with only the purchase of 3 tons of cottonseed meal at $27 per ton or about $81. After pasturing the cattle on this pasture from October until about March 1 the cattle are taken out and grass allowed to grow until October, or about 10 months, until it is high enough to make a good winter pasture. After a fire it takes some more time for the grass to get started and grow back normal, but I believe the Bermuda grass will be high enough by October 1940 to again use as a winter pasture. After the fire the weather was very dry, with a little rain, but the grass at this time seems to be started out again. After the fire I was unable to rent any other pasture for my cattle and it was necessary for me to buy the above feed to the amount of $1,238, and if I had the use of the pasture on NW4 36-8-32 it would not have been necessary for me to buy over $80 to $100 worth of feed; and at this date I have a net loss of about $1,100 with the necessity of buying more feed to finish the winter. From the time I started using the above-leased pasture my herd has run between 100 and 130 head. I had 130 at time of fire and now have 120 head, having sold 10 head today; the number varying from time to time, but always between 100 and 130 since 1937. If Bermuda grass is handled in the above manner, being allowed to grow until October, it cures and makes a very fine roughage for cattle and I think equal to hay such as red top clover, and I find it as good as alfalfa, and with that hay it is not necessary to feed much meal or hulls. My herd is mixed cattle and the production has not increased to any extent since July when I started feeding the hay and hulls and meal, production being about the same as before. Dated at Fort Smith, Ark., this January 17, 1940. [SEAL] My commission expires August 15, 1943. OTTO MEYER. ETTA M. OATES, Notary Public. О HAROLD BYRNE APRIL 21, 1941.-Committed to the Committee of the Whole House and ordered to be printed Mr. WEISS, from the Committee on Claims, submitted the following REPORT [To accompany H. R. 684] The Committee on Claims, to whom was referred the bill (H. R. 684) for the relief of Harold Byrne, having considered the same, report favorably thereon with amendments and recommend that the bill as amended do pass. The amendments are as follows: Line 6, strike out the figures "$2,500" and insert in lieu thereof the figures "$250". At the end of the bill, add: : Provided, That no part of the amount appropriated in this Act in excess of 10 per centum thereof shall be paid or delivered to or received by any agent or attorney on account of services rendered in connection with this claim, and the same shall be unlawful, any contract to the contrary notwithstanding. Any person violating the provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not exceeding $1,000. The purpose of the proposed legislation is to pay the sum of $250 to Harold Byrne, of Bronx, N. Y., in full settlement of all claims against the United States for personal injuries sustained by John Byrne, his minor son, on March 1, 1937, when he fell into an inadequately guarded excavation dug by employees of the Works Progress Administration. STATEMENT OF FACTS On March 1, 1937, John Byrne, age 5 years, fell into an unbarricaded excavation on Eastern Boulevard, dug by Works Progress Administration employees and as a result of the fall he suffered a laceration of the right eyebrow, extending into the nose, which necessitated four stitches; also, that he sustained a concussion of the brain; that as a result of the injuries the boy is left with a 1%-inch permanent scar with a disfigurement of the nose. The Work Projects Administration in its report to the committee recommends against the enactment of the proposed legislation for the reason that the excavation was barricaded and, furthermore, that since the child's parents were aware of the excavation, the question arises as to whether they were negligent in permitting the child to play or roam about the excavation without supervision. Mary McGorry, of 3150 Roberts Avenue, in an affidavit submitted to the committee, sets forth that she witnessed the accident and that at the time of the accident the street lights were not lit and there was no barricade, guard, protection, or any person in the employ of the Works Progress Administration present to warn persons using this sidewalk of the existence of said excavation. Also, there were submitted photographs, taken of the excavation, which showed that there were no barricades or lights placed around to keep people from falling into same. Your committee, in the light of the above facts, are of the opinion that the employees of the Works Progress Administration were negligent and therefore recommend that the bill pass. Appended hereto is the report of the Work Projects Administration, together with other pertinent evidence. The Honorable AMBROSE J. KENNEDY, FEDERAL WORKS AGENCY, Chairman, Committee on Claims, House of Representatives. MY DEAR MR. KENNEDY: Your records will disclose your communication of September 28, 1939, and my reply of October 2, 1939, relative to H. R. 6932, a bill for the relief of Harold Byrne. The Administration's report is as follows: The bill proposes to appropriate a certain sum to Harold Byrne, of Bronx, N. Y., in full settlement of all claims against the United States on account of personal injuries sustained by John Byrne, minor son of the said Herbert (Harold) Byrne, when on March 1, 1937, he fell into an inadequately guarded excavation dug by employees of the Works Progress Administration on Eastern Boulevard, Bronx, N. Y. It appears that, on March 1, 1937, between 5 and 6 p. m., John Byrne, aged 5 years, fell into an excavation on Eastern Boulevard, approximately 18 inches deep and 24 inches wide, that had been dug by Works Progress Administration employees. Claimant alleges that the excavation was not properly barricaded, guarded, or protected, and that no warning of the existence of the excavation was given. In support of these allegations, there is submitted an affidavit from Mary McGorry, dated May 5, 1937, in which she avers that she witnessed the accident; that John Byrne fell into the street excavation in front of the premises at 3505 Eastern Boulevard; and that "at the time of the accident, the street lights were not lit and there was no barricade, guard, protection, or any person in the employ of the United States Works Progress Administration for the city of New York present to warn persons using the sidewalk of the existence of said excavation." There is also submitted an affidavit from Dr. Adrian P. O'Flaherty, dated May 20, 1937, in which he avers that the child suffered a laceration of the right eyebrow extending into the nose, which necessitated four stitches; that, in addition, the child sustained a concussion of the brain; that he treated the boy on 5 different days between March 1 and 15, 1937; and that, as a result of the injury, the patient is left with a 14-inch permanent scar, with a disfigurement of the nose. Contrary to the foregoing, C. G. Shields, Works Progress Administration assistant superintendent, under date of August 16, 1937, reports that, on the date in question, he was in charge of the project work at 3505 Eastern Boulevard; that when he left the job at 4:30 p. m. barricades were in place; that on the east side of Eastern Boulevard barricades were set out on the sidewalk about 13 feet from the building line, approximately 1 foot apart; that barricades were also located in the middle of Eastern Boulevard on the west side of the excavation; and that the location at which the accident occurred was completely surrounded by barricades. In statements dated August 18, 1937, similar testimony is given by James Spence and Roosevelt Daily, project watchmen, who, between 5 and 6 p. m., on March 1, 1937, were engaged in setting out lighted warning lamps. Mr. Spence states that "the excavation was about 18 inches deep and about 30 inches wide and it had barricades around it. The ends of each barricade were very close to each other. The barricades opposite of 3505 Eastern Boulevard (where the child met with his accident) were placed on the sidewalk and he had to walk underneath the barricades to get to the edge of the excavation." He adds that trouble was experienced in keeping children away from the barricades and the excavation. Mr. Daily states that "the barricades were placed on the sidewalk in front of 3505 Eastern Boulevard and were placed close together" and that" we always had trouble keeping the children from crawling underneath the barricades." Although claimant has submitted a photograph of what purports to be a portion of the project site, and in which a part of the excavation is shown to be unprotected, proper authentication of the photograph has not been made, in that the location has not been identified and the time when the photograph was taken has not been verified. Accordingly, upon the evidence before it, the Administration is of the opinion that it has not been established that the accident was caused by the negligence of Work Projects Administration employees. Furthermore, since the child's parents undoubtedly were aware of the existence of the excavation and since the accident occurred directly in front of the building in which claimant lived, a question arises as to whether they were negligent in permitting the child, then aged 5 years, to play or roam about the excavation without supervision. The Administration, therefore, recommends against the enactment of the proposed legislation. There are enclosed herewith photostatic copies of pertinent papers and the original photograph1 submitted by claimant. Sincerely yours, CORRINGTON GILL, IN THE MATTER OF THE CLAIM OF JOHN BYRNE AGAINST UNITED STATES WORKS PROGRESS ADMINISTRATION FOR-THE CITY OF NEW YORK To United States Works Progress Administration for the City of New York: Please take notice that the undersigned, Harold Byrne, residing at No. 3505 Eastern Boulevard, in the Borough of Bronx, city and State of New York, does hereby file a claim for personal injuries on behalf of John Byrne, an infant now 5 years of age, and claims as damages therefor the sum of $10,000. That hereto annexed and made a part hereof, the undersigned herewith submits an affidavit of Dr. Adrian P. O'Flaherty, who treated the said John Byrne, together with an itemized statement for the services rendered to said infant. That these injuries were sustained on March 1, 1937, at or about 5:45 p. m., through the negligence of the United States Works Progress Administration for the city of New York, their agents, servants, and employees, acting within the scope of their assigned employment in a works project on the westerly side of Eastern Boulevard, in the Borough of Bronx, city of New York, in their failure to properly barricade, guard, protect, or give any warning of the existence of an excavation created by the said United States Works Progress Administration for the city of New York, its agents, servants, and employees on said day, as a result of which said John Byrne was caused to fall into said excavation as a result of which he sustained the following injuries: 1. Concussion of the brain. 2. Laceration of right eyebrow extending into the nose, necessitating four stitches, leaving a 11⁄2-inch permanent scar. That said accident occurred approximately 18 feet from the westerly building line of premises 3505 Eastern Boulevard, in the Borough of Bronx, city of New York. That hereto annexed and made a part hereof is a photograph representing the place where the alleged accident occurred. That no negligence or want of care on the part of the said infant, John Byrne, contributed to the above injuries. HAROLD BYRNE, Claimant. GEORGE HELPRIN, Attorney for Claimant. 1 Not printed. H. Repts., 77-1, vol. 2-73 |