MARCH 16 (legislative day, FEBRUARY 21), 1949.-Ordered to be printed

Mr. MCCARRAN, from the Committee on the Judiciary, submitted the following

REPORT

To accompany S. 40]

The Committee on the Judiciary, to whom was referred the bill (S. 40) for the relief of William D. Norris, having considered the same to now report the bill to the Senate favorably, with an amendment, and recommend that the bill, as amended, do pass.

The purpose of the proposed legislation is to provide for the payment of the sum of $6,760 to William D. Norris, of Las Vegas, Nev., in full satisfaction of his claim against the United States for compensation for loss of earnings and for pain and suffering incurred as a result of personal injuries sustained in an accident involving an Army vehicle on December 19, 1942.

AMENDMENT

On page 1, line 5 after the word "of" insert "715 North E Street,".

STATEMENT

It appears that on December 19, 1942, at about 8:30 a. m., an automobile owned and operated by William D. Norris was proceeding west on Boulder Dam Roadway, near the Boulder Dam in Nevada. It appears that while his vehicle was passing an east-bound convoy, escorted by two Army trucks, it was struck by one of the Army trucks, which had pulled out of the convoy line and across the center of the roadway. Mr. Norris sustained personal injuries and his automobile was damaged.

Mr. Norris has received the following amounts as compensation from various Federal agencies: Bureau of Employees' Compensation,

$158.75 for hospital expenses and $321 in doctor bills; Department of the Army, $270 for damage to automobile.

Mr. Norris was a man 58 years of age at the time of the accident and is considered 10 percent disabled by the Bureau of Employees' Compensation and 20 percent disabled according to a statement of the Department of the Army.

The War Department has based its disapproval of the bill on the ground that

in view of the fact that Mr. Norris has already been compensated by the United States Employees' Compensation Commission for the injury sustained by him in this accident and will be entitled to further compensation from the Bureau of Employees' Compensation, Federal Security Agency, in the event that "at any future date (he should) be unable to earn the rate of pay he was receiving when injured and can show a loss of wage-earning capacity by reason of a disability from the injury" there appears to be no reason for the enactment of special legislation for his relief.

The Justice Department has concurred in the recommendation of the Department of the Army.

What both the Department of the Army and the Justice Department have overlooked is that in this case, the injury was caused, admittedly, "solely by the negligence of an enlisted man of the Army"; while Mr. Norris was an employee not of the Army, but of the Interior Department.

The statement of the Secretary of the Army that—

Mr. Norris has already been compensated by the United States Employees' Compensation Commission for the injury sustained by him

is incorrect. As pointed out by the Secretary of the Army in a letter dated July 17, 1947, and addressed to the Attorney General, reporting on Senate bill 1307,

*

*

The * * Federal Employees' Compensation Act, as amended does not provide for indemnity for physical impairment as such, but only compensates for loss of wage-earning capacity caused by physical disabilty. [Italics supplied.] Mr. Norris has been compensated for his loss of wages as a result of his incapacity due to the injury incurred through the negligence of an Army Department employee; but he has not been compensated for the injury itself, or for his pain and suffering, or for his disability, which the Employees' Compensation Commission rates at 10 percent, and which the report of the Secretary of the Army indicates was "a 20percent permanent disability" in one knee, at least.

*

Had the accident, in which Mr. Norris was injured, ocurred within the time limitation of the Federal Tort Claims Act, Mr. Norris would have been entitled to sue the War Department, as an alternative to claiming benefits under the Federal Employees' Compensation Act; for the Tort Claims Act provides for actions against the United States: * personal injury * * on account of * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such *** injury in accordance with the law of the place where the act or omis sion occurred. Subject to the provisions of this title, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages.

* * *

If Mr. Norris, an employee of the Interior Department, had been injured by the negligence of a driver employed by the XYZ Manufacturing Co., he would have been able to sue the XYZ Manufacturing Co., regardless of any benefits he might receive under the Federal Employees' Compensation Act by virtue of the fact that his injuries occurred in the course of his employment.

Similarly, had Mr. Norris been employed by the ABC Manufacturing Co., when he was injured by the Army, the fact that he might have been entitled to benefits under a State Employees' Compensation Act would not have prevented him from bringing a claim against the Army; and presumably, since the Department of the Army recognizes that the injury to Mr. Norris was caused solely by the negligence of an employee of the Army, payment of the claim, under such assumed circumstances, would have been recommended.

Specific recognition of this right of the employee to sue, in such an assumed case, is contained in the Employees' Compensation Act itself; in section 26 (5 U. S. C. 776), which provides:

If an injury or death for which compensation is payable under sections 751-791, 793 of this title is caused under circumstances creating a legal liability upon some person other than the United States to pay damages therefor, the commission may require the beneficiary to assign to the United States any right of action he may have to enforce such liability of such other person or any right which he may have to share in any money or other property received in satisfaction of such liability of such other person, or the commission may require said beneficiary to prosecute said action in his own name.

If the beneficiary shall refuse to make such assignment or to prosecute said action in his own name when required by the commission, he shall not be entitled to any compensation under sections 751-791, 793 of this title.

The cause of action when assigned to the United States may be prosecuted or compromised by the commission, and if the commission realizes upon such cause of action, it shall apply the money or other property so received in the following manner: After deducting the amount of any compensation already paid to the beneficiary and the expense of such realization or collection, which sum shall be placed to the credit of the employees' compensation fund, the surplus, if any, shall be paid to the beneficiary and credited upon any future payments of compensation payable to him on account of the same injury.

and in section 27 (5 U. S. C. 777) which provides:

If an injury or death for which compensation is payable under sections 751-791, 793 of this title is caused under circumstances creating a legal liability in some person other than the United States to pay damages therefor, and a beneficiary entitled to compensation from the United States for such injury or death receives, as a result of a suit brought by him or on his behalf, or as a result of a settlement made by him or on his behalf, any money or other property in satisfaction of the liability of such other person, such beneficiary shall, after deducting the costs of suit and a reasonable attorney's fee, apply the money or other property so received in the following manner:

(A) If his compensation has been paid in whole or in part, he shall refund to the United States the amount of compensation which has been paid by the United States and credit any surplus upon future payments of compensation payable to him on account of the same injury. Any amount so refunded to the United States shall be placed to the credit of the employees' compensation fund.

(B) If no compensation has been paid to him by the United States, he shall credit the money or other property so received upon any compensation payable to him by the United States on account of the same injury.

It should be noted that both these sections specifically contemplate the possibility of money recoveries larger than the compensation payable under the Employees' Compensation Act.

Nowhere in the Federal Employees' Compensation Act is it provided that receipt or acceptance of compensation under that act shall

bar an injured person from seeking relief by special act of Congress. Section 7 of the act (5 U. S. C. 757), which provides:

As long as the employee is in receipt of compensation under sections 751-791, 793 of this title, or, if he has been paid a lump sum in commutation of installment payments, until the expiration of the period during which such installment payments would have continued, he shall not receive from the United States any salary, pay, or remuneration whatsoever except in return for services actually performed, and except pensions for service in the Army or Navy of the United States.

clearly does not cover this point.

Consideration must be given to the fact that the Tort Claims Act was passed long subsequent to enactment of the Federal Employees' Compensation Act; and that, by its terms, the Tort Claims Act is intended to cover a broader field and provide a fuller measure of recovery than is the earlier act, as indicated by the provision in the Tort Claims Act (subsec. 410 (b)) that "the judgment in such an action shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the Government whose act or omission gave rise to the claim"; whereas the Federal Employees' Compensation Act specifically recognized the right of a beneficiary under that act to pursue his civil remedy against any other person, whether or not an employee of the Government.

Attention is directed to the decision of the United States District Court for the District of Maryland, in the case of Jefferson v. United States, motion to dismiss denied October 23, 1947, and reported in 16 LW 2204, 2205. The holding in this case was that a veteran may maintain an action under the Federal Tort Claims Act to recover damages for injuries allegedly caused by a negligent operation performed by an Army surgeon, while both were on active duty.

The Justice Department, in defending this action, had contended that the Federal Tort Claims Act was not intended to authorize such suits, since compensation for such damages has otherwise been provided in the system of disability and pension allowances, and also because of the special relationship between the United States and members of its armed forces. The Court held, however, that—

the literal wording of the affirmative provision for liability should not be whittled down by construction unless there is some very controlling reason therefor.

The Court pointed out that although many of the prior bills on the subject affirmatively included in the mentioned exceptions claims for which compensation was provided by the Federal Employees' Compensation Act or by the World War Veterans' Act of 1924, the Federal Tort Claims Act is silent in this respect. The Congress, of course, is conclusively presumed to have known the law at the time of enactment of the Federal Tort Claims Act.

Under the circumstances, the district court pointed out in Jefferson v. United States, above cited, it has been said that:

A presumption arises that where a claim is cognizable under the present law, which is not barred by the two mentioned statutes relating to Federal employees or to World War veterans, such claim may, under the election of remedies theory, be prosecuted hereunder.

The Court said:

It is to be importantly borne in mind that the last-mentioned act represents a marked departure by the United States with respect to the waiving of sovereign immunity. It is a comprehensive act, which, subject to the exceptions therein