81ST CONGRESS 1st Session SENATE MICKEY BAINE { REPORT No. 166 MARCH 28 (legislative day, MARCH 18), 1949.—Ordered to be printed Mr. MCCARRAN, from the Committee on the Judiciary, submitted the following REPORT [To accompany S. 948] The Committee on the Judiciary, to whom was referred the bill (S. 948) for the relief of Mickey Baine, having considered the same, report favorably thereon without amendment, and recommend that the bill do pass. The purpose of the proposed legislation is to provide for the payment of the sum of $4,500, to Mickey Baine, of Nashville, Tenn., in full satisfaction of his claim against the United States for compensation for personal injuries, property damage, and loss of earnings suffered by him, and for reimbursement of medical and hospital expenses incurred by him, as the result of an automobile accident involving a United States Army vehicle. STATEMENT It appears that on September 11, 1943, at about 10 p. m., an Army truck operated by an unidentified enlisted man collided with a private automobile, owned and operated by the claimant, causing extensive damage to the private automobile and personal injuries to Mr. Baine. The Army driver, on the pretext of going for medical assistance for Mr. Baine, left the scene of the accident and never returned. Mr. Baine suffered severe injuries to his chest and fractures of seven ribs. He was confined in a hospital from the date of the accident until September 22, 1943, and then was confined at home for a few weeks. He He incurred hospital and medical expenses in the amount of $461.85. He was 49 years of age at the time of the accident and there was dependent upon him his wife and his mother-in-law. His income was approximately $1,000 per month at the time he was injured and he states that he suffered a net loss of income amounting to $1,250. Both the Department of the Army and the Department of Justice, in the letters attached below, recommend enactment of the bill. The Honorable the Attorney General, Washington, D. C. DEPARTMENT OF THE ARMY, Washington, D. C., August 3, 1948. DEAR MR. ATTORNEY GENERAL: Reference is made to your letter with which you enclosed a copy of S. 2303, Eightieth Congress, a bill for the relief of Mickey Baine. You state that the Senate Committee on the Judiciary has requested the Department of Justice to submit a report on this bill and has advised that if reports are necessary from other sources they will be secured by your Department and submitted along with your report to the committee. You, therefore, request the comments of the Department of the Army on S. 2303. This bill provides as follows: "That the Secretary of the Treasury is authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Mickey (John T.) Baine, of Nashville, Tenn., the sum of $4,500, in full satisfaction of his claim against the United States (1) for compensation for personal injuries, property damage, and loss of earnings suffered by him, and (2) for reimbursement of medical and hospital expenses incurred by him as a result of an automobile accident which occurred in 1943 in Nashville, Tenn., when his automobile was struck by a United States Army vehicle." On September 11, 1943, at about 10 p. m., an Army truck operated by an enlisted man, both unidentified, was proceeding west on Elliston Place in Nashville, Tenn., approaching its intersection with Twenty-fourth Avenue North. Desiring to go east on Elliston Place, the Army driver crossed Twenty-fourth Avenue North and drove through the premises of a gasoline station situated at the northwest corner of the intersection, and, with a view to making a U-turn, reentered Elliston Place. As he did so his truck crashed into the right-hand side of a 1942 Nash sedan, owned and operated by Mickey (John T.) Baine, which was proceeding west on Elliston Place. It appears that after stopping at the scene of the accident the operator of the Army truck drove away, ostensibly to obtain medical assistance, and did not return. The civilian vehicle was extensively damaged and Mr. Baine sustained personal injuries. On September 27, 1944, Dr. Thomas G. Pollard, Nashville, Tenn., made the following statement concerning Mr. Baine's injuries: "Mr. Baine was seen by me soon after having had an automobile accident somewhere in the city limits. At the time I saw him he was at the St. Thomas Hospital. Upon examination I found that Mr. Baine was in considerable shock, and also suffering a great deal with his chest injury. There were many minor bruises over the body and scalp, and quite a contusion of the right chest. X-ray examina tion of the chest showed that he had fractures of the third, fifth, sixth, seventh, eighth, ninth, and tenth ribs of the right chest. He, also, had contusion of the pleura and lung of the right side, which was followed by pneumonia. "The injuries received caused a great deal of suffering to Mr. Baine, and it was several days before he could get any comfort hardly at all. "He, however, recovered from his injuries and pneumonia and left the hospital September 22, 1943, and was confined at his home for a few weeks. "His recovery has been complete, but, of course, it left some deformity to the chest wall, which does not inconvenience him at the present time." On May 13, 1948, Mr. Baine was examined at the Station Hospital, Camp Campbell, Ky., by First Lt. John C. Rawlins, First Lt. Hyman Zahtz, and First Lt. William L. Bridges, Jr., all of the Medical Corps, United States Army. Their report of such examinations contains the following statements: Army truck collided with automobile which examinee was driving in Nashville September 1943 resulting in injury to right side. Has had no trouble physically since that time except shortness of breath on exertion. "Rib studies: There is suggestive evidence of old rib fractures, involving the fourth and fifth ribs on the right anteriorly. These are well healed and in satisfactory position and alinement. The remainder of the bony thorax appears normal." It appears that for the treatment of the injuries sustained by him in this acci dent Mr. Baine incurred medical and hospital expenses in the amount of $461.85. In a sworn statement, dated May 13, 1948, Mr. Baine stated that he was 49 years of age at the time of the accident; that he is the owner and operator of Mickey's Oyster Bar, at which occupation he was earning approximately $1,000 per month at the time he was injured; that by reason of his injuries he was unable to work for more than 10 weeks; and that the expense of employing additional help during that period and the decrease in earnings on account of his absence resulted in a net loss of $1,250. He further states that his wife, Mrs. Ethel Baine, and his mother-in-law, Mrs. A. A. Stanton, 49 and 67 years of age, respectively, at the time of the accident, were both wholly dependent upon him for their support, with the exception of what his wife earned as an employee at the oyster bar. In a sworn statement dated October 3, 1944, L. C. Johnson, the owner of the Johnson Auto Painting & Supply Co., 112 Fifteenth Avenue North, Nashville, Tenn., estimated that the cost of repairing Mr. Baine's automobile "so that it would be in a fair working order," would be $492.31. The evidence clearly shows that this accident and the resulting personal injuries, property damage, and loss of earnings sustained by Mr. Baine were caused solely by the negligence of the unidentified Army driver, who is presumed to have been acting within the scope of his employment, in suddenly proceeding into the street without first ascertaining whether the way was clear of approaching traffic. The Department of the Army, therefore, believes that the claimant should be compensated in a reasonable amount for the damages sustained by him. The proposed award of $4,500 stated in S. 2303 appears to be fair and reasonable ($492.31 for damage to automobile; $461.85 for medical and hospital expenses; $1,250 for loss of earnings; and $2,295.84 for personal injuries). Accordingly, the Department has no objection to the enactment of this bill. For the purpose of accuracy it is recommended that if this bill is favorably considered the word and figures "in 1943", following the word “occurred", on line 11, page 1. of the bill be stricken out and that there be inserted after the word "Tennessee," on the same line and page the words and figures "on September 11, 1943,". This claimant has no remedy under the Federal Tort Claims Act (60 Stat. 842; 28 U. S. C. 921) for the reason that the accident in which the claimant was injured occurred prior to January 1, 1945. Sincerely yours, KENNETH C. ROYALL, DEPARTMENT OF JUSTICE, Washington, March 3, 1949. OFFICE OF THE ASSISTANT TO THE ATTORNEY GENERAL, MY DEAR SENATOR: This is in response to your request for the views of this Department relative to a bill (S. 948) for the relief of Mickey Baine. The bill would provide for payment of the sum of $4,500 to Mickey Baine, of Nashville, Tenn., in full satisfaction of his claim against the United States for compensation for personal injuries, property damage, and loss of earnings suffered by him, and for reimbursement of medical and hospital expenses incurred by him as the result of an automobile accident involving a United States Army vehicle. In compliance with your request, a report was obtained from the Department of the Army concerning this legislation. That report, which is enclosed, was prepared in connection with S. 2303, an identical bill, introduced in the Eightieth Congress, and is to be considered as that Departinent's report on the present bill. It states that on September 11, 1943, an Army truck operated by an enlisted man, both unidentified, was proceeding west on Elliston Place in Nashville, Tenn. At the intersection of Elliston Place with Twenty-fourth Avenue North, the driver, desiring to go west on Elliston Place, drove through the premises of a gasoline station situated at the northwest corner of the intersection and, with a view to making a U-turn, reentered Elliston Place. As he did so his truck crashed into the right-hand side of claimant's car which was proceeding west on Elliston Place. After stopping at the scene of the accident, the Army driver drove away, S. Repts., 81-1, vol. 1- -109 ostensibly to obtain medical assistance but did not return. Claimant sustained personal injuries and his car was extensively damaged. Claimant incurred medical and hospital expenses in the amount of $461.85, as a result of the accident and was unable to work for more than 10 weeks. As owner and operator of Mickey's Oyster Bar, he was earning approximately $1,000 per month and because of the necessity of employing additional help during that period and the decreased earnings on account of his absence, he suffered a net loss of $1,250. He was 49 years of age at the time of the accident and his wife and mother-in-law were both wholly dependent upon him for their support with the exception of what his wife earned as an employee of the oyster bar. The cost of repairing claimant's car was estimated at $492.31. The Department of the Army states that the evidence clearly shows that the accident and resulting personal injuries, property damage, and loss of earnings sustained by claimant, were caused solely by the negligence of the unidentified Army driver, who is presumed to have been acting within the scope of his employ. ment. It states, therefore, that it believes that claimant should be compensated in a reasonable amount for the damages sustained by him. The report observes that the proposed award of $4,500 appears to be fair and reasonable ($492.31 for damage to automobile; $461.85 for medical and hospital expenses; $1,250 for loss of earnings; and $2,295.84 for personal injuries). Accordingly, the Department of the Army states that it has no objection to the enactment of the bill. It recommends, however, that if the bill is favorably considered the word and figures "in 1943" following the word "occurred", on line 11, page 1, of the bill be stricken out and that there be inserted after the word "Tennessee," on the same line and page the words and figures "on September 11, 1943,". In the absence of any proof that the Army driver was acting within the scope of his employment at the time this accident occurred, the enactment of the bill presents a question of legislative policy concerning which the Department of Justice prefers to make no recommendations. The Director of the Bureau of the Budget has advised this Department that there would be no objection to the submission of this report. Yours sincerely, PEYTON FORD, The Assistant to the Attorney General. MARCH 28 (legislative day, MARCH 18), 1949.-Ordered to be printed Mr. MCCARRAN, from the Committee on the Judiciary, submitted the following REPORT [To accompany S. 1168) The Committee on the Judiciary, to whom was referred the bill (S. 1168) to amend section 2680 of Title 28, United States Code, having considered the same, report favorably thereon, without amendment, and recommend that the bill do pass. PURPOSE The bill would exclude claims against the Panama Railroad Company from the provisions of chapter 171, sections 2671 to 2680 inclusive, and section 1346 (b), of Title 28, United States Code, which sections incorporate in substance the Federal Tort Claims Act, originally enacted in Title IV of Public Law 601 of the Seventy-ninth Congress. STATEMENT The definition of "Federal agency" in the Federal Tort Claims Act was so broad as to include the Panama Railroad Company, a company which was originally incorporated by an act of the Legislature of the State of New York in 1849, and reincorporated by Public Law 808, of the Eightieth Congress, as "an agency and instrumentality of the United States, and as an adjunct of the Panama Canal." The varied activities of the Company, which include the operation of a railroad across the Isthmus of Panama with terminals in the Republic of Panama, the operation of a steamship line between the Isthmus and American ports, the operation of hotels and commissary stores, and the operation of related commercial enterprises, are not those to which the principle of governmental immunity to suit should |