STATE OF OREGON,

County of Marion, ss:

I, Jean Baumgartner, being first duly sworn, on oath depose and say: That I am a resident and inhabitant of Marion County, Oreg., and that I am more than 21 years of age; that I was present in the Ernest H. Tarpley residence near Rickreall, Polk County, Oreg., on the 29th day of May 1938, when a highexplosive shell exploded causing injuries to Ernest H. Tarpley, Dan A. Tarpley, and Pearl Tarpley; that I was acquainted with Pearl Tarpley for approximately 5 years prior to the 29th day of May 1938, and that prior to said date her hearing appeared normal and she did not seem to suffer from any nervous disorder whatsoever.

JEAN BAUMGARTNER.

Subscribed and sworn to before me this 10th day of May 1939. [SEAL].

My commission expires February 26, 1941.

OTTO K. PAUlus, Notary Public for Oregon.

REPORT OF EXAMINATION OF DAN A. TARPLEY, AGE 22, RESIDENCE, TURNER, OREG.

SALEM, OREG., May 10, 1939.

History of injury.—Mr. Tarpley states that on May 29, 1938, he dropped a high-explosive shell, which exploded and injured his feet.

Injuries received.-Shrapnel wounds, both feet, just below the ankle.

Medical aid.-Mr. Tarpley states that he received first aid from Dr. Page at Dallas, Oreg. On June 11, 1938, a large piece of shrapnel was removed from the right foot.

I was called to see Mr. Tarpley at the Salem General Hospital early on the morning of June 13, 1938. He was bleeding profusely from a severed artery, just below the left ankle. Examination showed a dirty, sloughing wound just below the left and the right medial malleolus. A pressure bandage was put on the ankle and the patient was put to bed. The wound continued to bleed bright red blood, and 2 days later I operated, with the assistance of Dr. W. B. Morse, and found a severed artery, a branch of the posterior tibial. This artery was ligated above and below the severed area. X-ray showed some small pieces of metal in this ankle and the injury was caused by a shrapnel fragment. The wounds healed slowly, by granulation, and the patient was discharged from the Salem General Hospital 3 weeks after admission. I continued to dress the feet and the patient did not walk on them for several weeks after his discharge from the hospital. He was totally disabled from May 29, 1938, to August 1, 1938, and there has been some partial disability since that time. At the present time, Mr. Tarpley complains of a twinging pain of the plantar surface of the right foot and deep pain anterior to the right os calcis on standing. The foot aches, particularly after he has used it for several hours. The left foot is stiff, after some activity, and tires quickly. The feet were quite cold on examination today, and the patient states that the circulation does not seem to be good. It is hard to keep them warm.

Summary and conclusion.-Shrapnel wounds of both feet, complicated by infection and secondary arterial hemorrhage; permanent disability of both feet ranging from 15 to 20 percent; the right foot being somewhat worse than the left. Disability is now due to scar formation around the tendons, nerves, and in the joints of the foot.

CHAS. D. WOOD, M. D.

76TH CONGRESS 3d Session

SENATE

{

REPORT No. 1455

ELLIOTT L. HOVEL

APRIL 18 (legislative day, APRIL 8), 1940.-Ordered to be printed

Mr. HUGHES, from the Committee on Claims, submitted the following

REPORT

[To accompany S. 3493]

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 Chev

rolet 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,

Chairman, Committee on Claims,

United States Senate.

WAR DEPARTMENT, Washington, March 25, 1940.

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, 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. 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 dainage 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.