in the Senate Report No. 1455, Seventy-sixth Congress, third session, which is appended hereto and made a part of this report.

[S. Rept. No. 1455, 76th Cong., 3d sess.]

The Committee on Claims, to whom was referred the bill (S. 3493) for the relief of Elliott L. Hovel, having considered the same, report favorably thereon with the recommendation that the bill do pass with the following amendments:

In line 6, strike out "$500 in settlement of damages as a result of" and insert in lieu thereof "$173.29 in full settlement of all claims against the United States for damages sustained as a result of an".

At the end of the bill add the following: ": 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."

This bill, as amended, provides for the payment of $173.29 to Elliott L. Hovel, in full settlement of all claims against the United States for damages sustained as a result of an accident in which his car was struck by an Army truck being driven in a reckless manner.

The records of the War Department show that on June 16, 1937, Private Peter Kaminski, Company B, Second Quartermaster Regiment, Fort Sam Houston, Tex., was detailed to drive a Government truck from the intersection of New Braunsfels Avenue and Grayson Street to Salado Creek Recreation Grounds. On that date, Private Kaminski had no authority to drive the Army truck from the reservation, Fort Sam Houston, Tex. At 6:45 p. m., Private Kaminski, who was apparently sober at the time, was instructed by the first sergeant of his organization to return the truck to the motor pool after the next trip to the recreation grounds. Private Kaminski disobeyed the instructions and left the reservation with the truck without authority. At about 7:45 p. m., Private Kaminski, while drunk, drove the Government truck at a speed of about 50 miles per hour north on Blanco Road, San Antonio, Tex.; collided with a Chevrolet coupe owned and operated by Miss Ina Jones at the intersection of Blanco Road and Hildebrand Avenue; and continued north on Blanco Road for about 50 feet, striking a Chevrolet sedan, owned by Elliott Logan Hovel, which was parked facing north on the east side of Blanco Road.

A claim was filed by Mr. Hovel with the War Department in the amount of $237.50 for property damage to his car. A board of officers which investigated the claim appraised the damages to the car as $223.20, which amount claimant agreed to accept. The claim was processed under the provisions of the one hundred and fifth article of war, and Private Kaminski was assessed $223.20, the preponderance of evidence establishing that he was guilty of more than simple negligence in driving a Government vehicle without authority at an excessive rate of speed and while drunk; and that his actions were wrongful, amounting to criminal recklessness, and indicated wanton indifference to the safety of persons and property. On March 11, 1938, a check in the amount of $49.91 was forwarded to Mr. Hovel. This check represented payment in part for the damage to Mr. Hovel's car which was charged against Private Kaminski. Mr. Hovel was informed that Private Kaminski had been discharged from the United States Army and that no further collection could be made through Army disbursing officers.

Your committee is of the opinion that claimant should, under all the circumstances, be paid the difference between the amount he was willing to accept from the War Department, $223.20, and the amount he received as partial payment, $49.91, leaving a balance of $173.29. As so amended, your committee recommend the passage of the bill.

The letter of the Secretary of War is appended hereto and made a part of this report, as follows:

Hon. EDWARD R. BURKE,

WAR DEPARTMENT, Washington, March 25, 1940.

Chairman, Committee on Claims, United States Senate.

DEAR SENATOR BURKE: Careful consideration has been given to the bill (S. 3493, 76th Cong., 3d sess.) for the relief of Elliott L. Hovel, which you transmitted to the War Department under date of March 5, 1940, with request for information and the views of the Department relative thereto.

The purpose of the proposed legislation is to pay to Elliott L. Hovel the sum of $500 in settlement of damages as a result of an accident in which his car was struck by an Army truck being driven in a reckless manner.

On June 16, 1937, Pvt. Peter Kaminski, Company B, Second Quartermaster Regiment, Fort Sam Houston, Tex., was detailed to drive a Government truck from the intersection of New Braunsfels Avenue and Grayson Street to Salado Creek Recreation Grounds. On that date, Private Kaminski had no authority to drive the Army truck from the reservation, Fort Sam Houston, Tex. At 6:45 p. m., Private Kaminski, who was apparently sober at the time, was instructed by the first sergeant of his organization to return the truck to the motor pool after the next trip to the recreation grounds. Private Kaminski disobeyed the instructions and left the reservation with the truck without authority. At about 7:45 p. m., Private Kaminski, while drunk, drove the Government truck at a speed of about 50 miles per hour north on Blanco Road, San Antonio, Tex.; collided with a Chevrolet coupe owned and operated by Miss Ina Jones at the intersection of Blanco Road and Hildebrand Avenue; and continued north on Blanco Road for about 50 feet, striking a Chevrolet sedan, owned by Elliott Logan Hovel, which was parked facing north on the east side of Blanco Road.

A claim was filed by Mr. Hovel with the War Department in the amount of $237.50 for property damage to his car. He later claimed additional damages of $2.50 per day beginning with June 17, 1937, and to include date settlement of claim is made. This part of the claim was for business loss due to being without the use of his damaged car. A board of officers which investigated the claim appraised the damages to the car as $223.20, which amount Mr. Hovel agreed to accept. The claim was processed under the provisions of the One-hundred and Fifth Article of War (10 Stat. 1577), and Private Kaminski was assessed $223.20, the preponderance of evidence establishing that he was guilty of more than simple negligence in driving a Government vehicle without authority at an excessive rate of speed, and while drunk; and that his actions were wrongful, amounting to criminal recklessness, and indicated wanton indifference to the safety of persons and property. On March 11, 1938, a check in the amount of $49.91 was forwarded to Mr. Hovel. This check represented payment in part for the damage to Mr. Hovel's car which was charged against Private Kaminski. Mr. Hovel was informed that Private Kaminski had been discharged from the United States Army and that no further collection could be made through Army disbursing offices.

Upon review in the War Department, the claim was disapproved for the reason that the evidence of record established that the driver of the Army truck was not acting within the scope of his employment at the time the accident occurred, a condition necessary to be met to bring the claim within the provisions of any act available to the Department for the settlement of claims for damage to private property arising out of the activities of the Army.

While it is the view of the War Department that the damage in this case was occasioned by reason of the negligence of the Government driver, under wellestablished legal principles no legal liability therefor is cast on the United States for the reason, as indicated, that the Government driver was not operating within the scope of his official employment. However, it appears that Mr. Hovel has suffered some damage as a result of this accident to which no negligence on his part contributed. Under the circumstances, the Department refrains from making any recommendations in the premises and prefers to leave the matter to the equitable determination of the Congress, attention being invited to the fact that Mr. Hovel has received $49.91 in part payment of the property damage to his car.

Sincerely yours,

HARRY H. WOODRING,
Secretary of War.

MARY MADELINE ZWALINSKI AND ILENE MARY ZWALINSKI, A MINOR

OCTOBER 3, 1940.-Committed to the Committee of the Whole House and ordered to be printed

Mr. KENNEDY of Maryland, from the Committee on Claims, submitted the following

REPORT

[To accompany H. R. 10110]

The Committee on Claims, to whom was referred the bill (H. R. 10110) for the relief of Mary Madeline Zwalinski, having considered the same, report favorably thereon with amendments and recommend that the bill as amended do pass.

The amendments are as follows:

Page 1, line 6, strike out the name "Ranshaw," and insert "Shamokin,".

Page 1, line 6, strike out the sum "$10,000," and insert in lieu thereof, "$3,024.70, and to the legal guardian of Ilene Mary Zwalinski, a minor, of Shamokin, Pennsylvania, the sum of $2,500,".

Page 1, line 8, strike out the words "her and her minor daughter," and insert in lieu thereof "the said Mary Madeline Zwalinski and Ilene Mary Zwalinski,".

Page 1, line 9, strike out the words "her husband," and insert in lieu thereof "John Zwalinski, husband of Mary Madeline Zwalinski, and father of Ilene Mary Zwalinski,".

Amend the title of the bill to read:

A bill for the relief of Mary Madeline Zwalinski and Ilene Mary Zwalinski, minor.

The purpose of the proposed legislation is to pay to Mary Madeline Zwalinski, of Shamokin, Pa., the sum of $3,024.70, and to the legal guardian of Ilene Mary Zwalinski, a minor, of Shamokin, Pa., the sum of $2,500 in full settlement of all claims against the United States for damages to the said Mary Madeline and Ilene Mary Zwalinski, as the result of the death of John Zwalinski, husband and father of the claimants, by being struck by a rock blown by blasting operations of a Work Projects Administration project on March 23, 1940.

STATEMENT OF FACTS

On the above-mentioned date, at about 11 a. m., the deceased, John Zwalinski, was walking on a public street in Ranshaw (or Brady), Pa., when he was struck by a large rock weighing 46 pounds, which was caused to be hurled through the air for a distance of approximately 306 feet by a heavy blast of dynamite which was set off by a Work Projects Administration employee on an official Work Projects Administration project.

The project referred to was located on the highway running between Shamokin and Kulpmont, Pa., known as Project No. 65-1-23-49, a highway-improvement project.

The rock struck Mr. Zwalinski on the left side of his head causing a fractured skull and instantaneous death.

Mr. Zwalinski was at the time of his death 20 years of age, and he left a widow 21 years of age and a child not quite 2 years of age. At the time of his fatal accident, Mr. Zwalinski was unemployed, although he had been working from November 1939 to 1 week prior to the accident, for the Work Projects Administration as a laborer at a salary of $4 per day for 5 days a week. Prior to his employment as a Work Projects Administration laborer, he had been employed in other capacities.

According to the record, Mrs. Zwalinski was paid a total sum of $1,000 under a $500 insurance policy, with double indemnity in case of death by accident. The record also shows that Mrs. Zwalinski paid in full, funeral expenses totaling $524.70.

The Work Projects Administration, in its report to your committee, recommend passage of appropriate legislation for the relief of the widow and minor child of the deceased, stating that it is the opinion of the administration that the death of John Zwalinski was occasioned by the negligent manner in which its employee, the project blaster, conducted the blasting operations. Your committee has, as part of the evidence in this case, photographs showing damage done to a house immediately across the street from the scene of the accident, caused also by the blasting operation. There can be no question of negligence in the blasting operations on the project involved, and it is understood that steps were taken to correct the manner in which such blasting was conducted.

Your committee has amended the bill to conform with the laws of the State of Pennsylvania in dividing the sum awarded equally between the widow and the minor child, the sum awarded for the latter to be paid to a legal guardian. However, in addition to the $2,500 recommended for Mrs. Zwalinski, your committee has included $524.70 for funeral expenses, having a receipted bill for this amount.

Your committee feels that the untimely death of Mr. Zwalinski was most unfortunate and unnecessary and recommends passage of the bill, as amended for the relief of his widow and child.

Appended hereto is the report of the Work Projects Administration, together with other pertinent evidence.