JUNE 12 (legislative day, MAY 28), 1940.-Ordered to be printed

Mr. ELLENDER, from the Committee on Claims, submitted the

following

REPORT

[To accompany H. R. 2106]

The Committee on Claims, to whom was referred the bill (H. R. 2106) for the relief of Charles Flack, having considered the same, report favorably thereon with the recommendation that the bill do pass without amendment.

The facts are fully set forth in House Report No. 2219, Seventysixth Congress, third session, which is appended hereto and made a part of this report.

[H. Rept. No. 2219, 76th Cong., 3d sess.]

The Committee on Claims, to whom was referred the bill (H. R. 2106) for the relief of Charles Flack, having considered the same, report favorably thereon with amendments and recommend that the bill, as amended, do pass.

The amendments are as follows:

Lines 5 and 6, strike out the words "allocated by the President for the maintenance and operation of the Civilian Conservation Corps", and insert in lieu thereof, "not otherwise appropriated".

Line 7, strike out the amount "$6,000" and insert in lieu thereof, "$3,500".

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."

The purpose of the proposed legislation is to authorize the payment of the sum of $3,500 to Charles Flack, in full settlement of all claims against the United States and in settlement of the judgments obtained against Michael Felotoirch in the United States District Court for the Eastern District of Tennessee, as a result of personal injuries sustained when he was struck by a Civilian Conservation Corps truck driven by the said Michael Felotoirch.

STATEMENT OF FACTS

Mr. Flack was injured as the result of an accident involving a collision between a truck operated by one Michael Felotoirch, an enrollee of the Civilian Conservation Corps, and an automobile driven by one Swan Carr, on Highway No. 25-E, between Tazewell and Cumberland Gap, Tenn., on April 27, 1935.

The accident occurred somewhere between 8 and 9 p. m., and the Civilian Conservation Corps truck had five enrollee passengers, including the driver, and the sedan had four passengers, including the driver. The driver was killed in the accident.

As indicated in the language of the bill, Mr. Flack secured a judgment in the United States District Court for the Eastern District of Tennessee in the amount of $6,000. This judgment was against Michael Felotoirch.

As a result of severe injuries received by Mr. Flack, it was necessary to amputate his left leg, and in addition to that he has suffered severe personal injuries to his head which have permanently affected his sinuses. Your committee is in possession of the transcript of the court's proceedings, and after careful consideration of all the facts involved, your committee is of the opinion that Mr. Flack should be paid the sum of $3,500 for his injuries, pain, and suffering, as well as physical handicap. While the judgment was in the amount of $6,000, the sum of $3,500 is more in line with the standard of compensation allowed by Congress. Attention is called to the fact that a bill was introduced in the Seventy-fifth Congress for the relief of Roberta Carr, whose husband, Swan Carr, was killed in the same accident. This bill was enacted into Private Law No. 678, allowing Mrs. Carr the sum of $5,000 for the death of her husband. In view of this action, the War Department has no objection to the enactment of the proposed legislation, and quoted herewith is part of the report which accompanied the bill for the relief of Roberta Carr.

"In its examination of this claim, your committee have reviewed testimony taken from all witnesses and interested parties before a judge and jury for the circuit court of Claiborne County, Tenn., as well as the Government's evidence, maps, and photographs submitted in connection therewith. The evidence is quite voluminous and most of it will be retained in the files of the committee but may be inspected by interested parties if desired.

"The original claim was for $7,180.45, based on the judgment of a jury and award of the circuit court for Claiborne County, Tenn., wherein all the issues of fact were tried and determined. Another party injured in the accident, in which claimant's husband was killed, also joined the same suit and recovered a $500 judgment. It is believed, therefore, that one-half of the costs recovered by these plaintiffs should be deducted here from the total costs, $180.45, and the bill has been reduced accordingly to $7,090.23.

"The War Department alleges that the sedan driven by Swan Carr was proceeding at a high rate of speed and not on the proper side of the road. For those reasons it opposes the bill. The evidence upon which such findings are based is hereafter made a part of this report, but the Department appears to have taken no cognizance whatever of statements by plaintiff's witnesses, or actually to have had use of same. Nor does it mention the lengthy verbal testimony taken at the trial of the issues. It is the opinion of your committee, although admitting that the evidence is conflicting, that a preponderance of the testimony and proof bears out the claimant's allegations that the sedan operated by Swan Čarr was not only on its proper side of the highway and traveling at a speed not exceeding 35 miles per hour, but that the Government truck was not on its proper side of the highway, which is 16 feet in width, but was in fact rounding a curve to the left whereby it crossed the center of the road and proximately caused this accident. The body of the truck was of open, dump type. The sedan was completely demolished from the left front of its radiator to the rear. The truck was first struck about midway of the left front fender, after which the solid body corner appears to have caused the real damage.

"It is evident that the maps, pictures, and other exhibits filed with your committee were the same used in the trial of the case. They show that the vehicles collided and were damaged as described above and are indicative, we think, of the fact that the truck was procceding diagonally across the road, attempting to return to its proper lane to avoid this collision, and that the sedan was proceeding in a steady course. This is supported by the testimony of witnesses at the trial. Also in the testimony reference is made to the skid marks of the dual tires on the Civilian Conservation Corps truck over the center of the highway, indicating that the truck was crossing diagonally to its right side of the road when its body was caught by the oncoming sedan and knocked over to the right

edge, pivoting on the front wheels at about the center of the road. As stated by the Department, the passenger car came to rest on its own side of the road a considerable distance from the impact.

This

"In addition, the Department has pointed out that its driver was sober. statement is apparently to infer that such was not the case with the sedan, although no affirmative assertion is made. The testimony admits, as does your committee, that an empty pint whisky bottle was found on the floor of the sedan; that, if consumed, it had been consumed by four men; that an odor of alcohol may have been present in the car or on the men; but that none of them were necessarily under the influence of liquor and there is no proof to that effect.

"It is our conclusion, however, notwithstanding the evidentiary dispute on several points, that this claimant is entitled to recover on a preponderance of the evidence. The Congress has on a number of occasions granted a claimant the right to sue on controverted questions of fact as a result of an automobile collision, solely because a fact-finding jury would be empaneled to determine the material issues. Here such action has already been taken, the jury has found for the plaintiff, claimant here, and your committee is not disposed to disturb those findings as an appeals board, yet, on the original evidence. It is obvious from the testimony at the trial that a full defense was accorded the Civilian Conservation Corps driver, that the judge refused to grant his counsel's motion for a directed verdict on important allegations, asserting "it is a very clear-cut case for the jury on the proof," and that the suit was tried in a competent manner. Accordingly, it is believed Roberta Carr is entitled to collect this judgment from the Government and passage of the bill, as amended, is recommended."

Appended hereto is the report of the War Department on the present bill, together with other pertinent evidence.

WAR DEPARTMENT, Washington, June 1, 1938.

Hon. AMBROSE J. KENNEDY,

Chairman, Committee on Claims,

House of Representatives.

DEAR MR. KENNEDY: Careful consideration has been given to the bill H. R. 10584, Seventy-fifth Congress, third session, for the relief of Charles Flack, which you transmitted to the War Department under date of May 16, 1938, with request for information and the views of the Department relative thereto.

The purpose of the proposed legislation is to pay to Charles Flack, Morristown, Tenn., the sum of $6,000 in full settlement of all claims against the United States and in settlement of the judgments obtained against Michael Felotoirch in the United States District Court for the Eastern District of Tennessee, as a result of personal injuries sustained by Charles Flack when he was struck by a Civilian Conservation Corps truck driven by said Michael Felotoirch, a member of the Civilian Conservation Corps, at Arthur, Tenn., on April 27, 1935.

Under date of March 4, 1937, the War Department submitted the following report on the bill H. R. 2191, Seventy-fifth Congress, for the relief of Roberta Carr, whose husband, Swan Carr, was killed in the same accident. The records of the War Department show that Mr. Charles Flack was one of the three passengers injured in this accident.

"The records of the War Department show that on April 27, 1935, at approximately 8 p. m., a Civilian Conservation Corps truck and a civilian car collided on Highway No. 25-E, at a point about 3 miles north of Tazewell, Tenn. As a result of an investigation made after this accident it was disclosed that the Government vehicle was proceeding north on Highway No. 25-E at about 25 miles an hour and well on its right side of the highway. As it was approaching a lefthand curve a civilian car, proceeding in the opposite direction at a high rate of speed, crashed into the Government truck and eventually came to rest in a ditch 90 feet beyond the point of impact. There were in the civilian car, in addition to the driver, Swan Carr, three passengers, who suffered injuries as a result of this accident. Swan Carr was killed.

"The Government vehicle was on an authorized trip, and the operator at the time was sober. It therefore appears that the accident was not due to the fault or negligence of the operator of the Government vehicle, but was due to the manner in which the civilian car was being operated, and while the War Department deeply regrets the tragic accident, it is constrained to recommend against the enactment of the proposed legislation."

Since the rendition of the above report, Senate Report No. 1478, Seventy fifth Congress, on H. R. 2191, has become available to the War Department In view of the additional information contained therein and the action of the Committee on Claims, United States Senate, pertaining thereto, the War Department will interpose no further objection to the enactment of legislation to compensate Mr. Flack for the injuries he has sustained as a result of this accident in such amount as the Congress may deem proper to allow.

Sincerely yours,

HARRY H. WOODRING,

Secretary of War.

District Court of the United States, Eastern District of Tennessee. Cost bill. Charles Flack v. Michael Felotoirch. Docket No. 3237

Costs adjudged against defendant on the 27th day of April 1938.

Cost in the district court of the United States:

Be it remembered, That at a district court of the United States begun and held for the northern division of the eastern district of Tennessee, at the Federal court rooms in the city of Knoxville, within said district and the sixth circuit, on the 1st Monday, it being the 6th day of December A. D. 1937.

Present and presiding, the Honorable George C. Taylor, judge of the United States District Court for the Eastern District of Tennessee.

The following proceedings were had, to wit:

Saturday, April 23, 1938, court met, pursuant to adjournment. Presiding, the Honorable George C. Taylor, judge, etc.

Charles Flack v. Michael Felotoirch. No. 3237

JUDGMENT

This cause came on to be heard before the Honorable George C. Taylor, judge etc., on this the 14th day of December 1937, and before the following jurors, to wit: L. C. Godsey, M. H. Hendran, A. L. Murray, O. S. Walker, R. J. Harrell, James M. Davis, W. B. Burnette, B. F. Duncan, Carroll Glenn, W. O. Denton, Frank Bryan, and E. Barren Walker, all being good and lawful men of the eastern district of Tennessee, who being impaneled and sworn, and came the parties and their attorneys in open court and announced "ready"; from all of the testimony elicited in open court and from argument of counsel, the jury returned in open court and finds that the plaintiff, Charles Flack, was injured April 27, 1935, while riding as a guest in a passenger automobile, same being struck by Civilian Conservation Corps truck being driven and operated by Michael Felotoirch, who was a member of the Civilian Conservation Corps at Arthur, Claiborne County, Tenn., and being on active duty.

As a result of said injuries it was necessary to amputate said Charles Flack's left leg, and he suffered severe personal injuries to his head, which have permanently infected his sinuses.

The jury find the issues in favor of the plaintiff, Charles Flack, and against the defendant, Michael Felotoirch, and assess the damages at six thousand ($6,000) dollars.

Wherefore, it is ordered, adjudged, and decreed by the court that the defendant Michael Felotoirch, pay into this court the sum of six thousand ($6,000) dollars, and all costs of this cause, for which execution is awarded. Approved for entry:

GEO. C. TAYLOR,

Judge.

THE UNITED STATES OF AMERICA,

Eastern District of Tennessee, Northern Division, ss:

FRANK DAVIS,
Attorney for Plaintiff.

I, Lee A. Beeler, clerk of the district court of the United States, within and for the district aforesaid, do hereby certify that the foregoing printing and typewriting is a true, full, correct, and complete copy of the original judgment entered April 23, 1938, on file and remaining of record in my office in the matter of Charles Flack v. Michael Felotoirch, No. 3237, on the civil docket of said court.

In testimony whereof, I have hereunto set my hand and seal of the said district court, at Knoxville, Tenn., this 28th day of April, A. D. 1938.