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APRIL 7 (legislative day, MARCH 18), 1949.-Ordered to be printed

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

REPORT

[To accompany S. 408]

The Committee on the Judiciary, to whom was referred the bill (S. 408), for the relief of Barbara O'Brien Farquer, having considered the same, report favorably thereon, with amendments, and recommend that the bill, as amended, do pass.

The purpose of the proposed legislation is to pay the sum of $10,232 to the estate of W. E. O'Brien in full settlement of all claims against the United States for the death of said William E. O'Brien as a result of injuries sustained in an airplane accident involving a United States airplane on November 20, 1943.

AMENDMENT

Strike out all after the enacting clause and insert in lieu thereof the following:

That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to the estate of William E. O'Brien, deceased, late of Detroit, Michigan, the sum of $10,232, in full settlement of all claims of the said estate against the United States on account of the death of the said William E. O'Brien, on November 20, 1943, as a result of injuries sustained when an airplane in which he was sitting was struck by an Army airplane at the Detroit City Airport, Detroit, Michigan: 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 agents, attorney or attorneys, 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.

Amend the title to read

A bill for the relief of the estate of William E. O'Brien.

STATEMENT

It appears that on the day in question, Mr. O'Brien, who was by occupation a copilot with Pennsylvania Central Airlines, was sitting in a small plane owned by the Floyd Foren Flyers at the Detroit City Airport, Detroit, Mich. At about the same time, the pilot of a B-17F Army bomber, on an official flight, after making what appeared to be a normal landing, failed to bring the plane to a stop before reaching the end of the runway. Believing that his brakes were not functioning properly, he "ground looped" the bomber in an attempt to check its forward motion, and in so doing crashed into the small plane in which Mr. O'Brien was sitting, causing O'Brien's death almost instantly. A subsequent official investigation by the Army determined that "the pilot used poor technique in not using his emergency brake system which is standard operating procedure. Accident is attributed to 100 percent pilot error."

Mr. O'Brien was 28 years of age at the time of his death and left surviving his wife, Mrs. Barbara O'Brien (who has since remarried), and a daughter, 1 year of age. Mr. O'Brien was not acting in the course of his regular employment at the time of his death, and, therefore, his widow was not entitled to any workmen's compensation benefits on account of his death.

The committee notes that the Department of the Army in its report on this bill recommends reduction of the award to $7,232. It appears, however, from statements received by the committee, some of which are made a part of this report, that the deceased was an extremely capable, ambitious, and intelligent young man, who had made great progress in the profession of his choice, and whose background indicated a great future earning capacity. Under these circumstances, the committee believe that his estate should be compensated in the amount set forth in this bill and so recommend to the Senate.

Attached hereto and made a part of this report are letters received from the Department of Justice and the Department of the Army in connection with a similar bill of the Eightieth Congress. Also attached are letters relating to his employment history and probable future earnings.

Hon.. ALEXANDER WILEY,

Chairman, Committee on the Judiciary,

DEPARTMENT OF JUSTICE, Washington, D. C., August 5, 1948.

United States Senate, Washington, D. C.

MY DEAR SENATOR: This is in response to your request for the views of this Department relative to the bill (S. 1994) for the relief of Barbara O'Brien Farquer. The bill would provide for payment of the sum of $10,232 to Mrs. Barbara O'Brien Farquer, Indianapolis, Ind., in full settlement of her claims against the United States for the death of her husband who died as a result of injuries sustained in a plane accident involving a United States Army plane.

In compliance with your request, a report was obtained from the Department of the Army concerning this legislation. That report, which is enclosed, sets out the facts relating to the accident in question and states that a report of the official investigation of the accident contained the statement that the Army pilot used poor technique in not using his emergency brake system, which is standard operating procedure, and that the accident was attributed to 100-percent pilot error. The decedent was 28 years of age at the time of his death and left surviving his wife and one minor daughter. He was employed by the Pennsylvania Central Airlines as a copilot and was earning $210 a month at the time of his death. The

report further states that it appears that decedent was working on a part-time basis for the Floyd Foren Flyers while not engaged in his regular duties with the Pennsylvania Central Airlines. Since he was not killed while in the course of his employment with the Pennsylvania Central Airlines, his widow was not entitled to any workmen's compensation benefits on account of his death. The report observes that the records of the Department of the Army disclose that expenses were incurred in connection with the burial (cremation) of Mr. O'Brien in the amount of $233.

The Department of the Army states that the evidence in the case clearly establishes that the accident and resulting death of Mr. O'Brien were not caused by any fault or negligence on his part but appear to have been caused by pilot error on the part of the Army pilot involved in the accident. That Department states that it therefore believes that decedent's estate should be compensated in a reasonable amount on account of his death as well as for burial expenses. In this connection it states that the proposed award of $10,232 appears to be somewhat excessive but that it would have no objection to the enactment of the bill if it should be amended to provide for an award to the estate of the decedent in the amount of $7,232, which it is believed would constitute a fair and reasonable settlement for all the damages sustained on account of his death. The report states that since decedent left a minor child and as his widow has since remarried, it is believed any award made by the Congress in this case should be made to the estate of the decedent rather than to his widow as proposed by the bill. Accordingly, it is stated if the bill is favorably considered by the Congress it is recommended that the title and text thereof be amended in accordance with the suggested amended bill which appears on pages 3 and 4 of the Department of the Army report.

The Department of Justice concurs in the recommendation of the Department of the Army.

The Director of the Bureau of the Budget has advised this Department that there would be no objection to the submission of the report.

Yours sincerely,

PEYTON FORD,

The Assistant to the Attorney General.

The honorable the ATTORNEY GENERAL,

DEPARTMENT OF THE ARMY,

Washington, D. C.

Washington, May 17, 1948.

DEAR MR. ATTORNEY GENERAL: Reference is made to your letter with which you enclosed a copy of S. 1994, Eightieth Congress, a bill for the relief of Barbara O'Brien Farquer. 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 this Department on S. 1994.

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 Mrs. Barbara O'Brien Farquer, Indianapolis, Indiana, the sum of $10,232. The payment of such sum shall be in full settlement of all claims against the United States of the said Mrs. Barbara O'Brien Farquer for the death of her husband, W. E. O'Brien, on November 20, 1943, who died as a result of injuries sustained when a Stimson airplane, of which he was pilot, was struck by an Army B-17, piloted by Second Lieutenant Paul O'Bagy, when such Army plane out of control ground looped and struck the Stimson craft which was lawfully parked at the end of the northeast runway of the Detroit City Airport terminal."

On November 20, 1943, at about 4:40 p. m., the pilot of a B-17F Army bomber on an official flight, after making what appeared to be a normal landing at the Detroit City Airport, Detroit, Mich., failed to bring the plane to a stop before reaching the end of the runway. Believing that his brakes were not functioning properly, he ground looped the plane in an attempt to check its forward motion, and as he did so the plane crashed into two small airplanes owned by the Floyd Foren Flyers, Inc., which were properly parked in a parking area adjacent to the end of the runway. The two small planes were completely destroyed and William E. O'Brien, 11149 Charlemagne Street, Detroit, who had been sitting

in one of them and had jumped out when he saw the bomber approaching, was instantly killed.

A report of the official investigation of this accident contains the following statement:

"Both the normal brake system and the emergency brake system were tested and found to be working. However, when the cowl flaps were opened and the switch returned to normal, all pressure was lost in the main brake system. There was a definite indication of a leak in the system somewhere. The emergency system was in correct operating condition.

"It is the opinion of the Aircraft Accident Committee that the pilot used good judgment in ground looping the airplane in the proper direction in order to avoid going into the main thoroughfare and crashing into a crowd of people and parked automobiles. The committee is, however, of the opinion that the pilot used poor technique in not using his emergency-brake system which is standard operating procedure. Accident is attributed to 100-percent pilot error."

William E. O'Brien was 28 years of age at the time of his death and left surviving his wife, Mrs. Barbara O'Brien, age 23 years, and a daughter, Sharon Barbara O'Brien, 1 year of age. Mrs. O'Brien has since remarried, and is now Mrs. Barbara O'Brien Farquer. The date of her remarriage is not of record in this Department. Mr. O'Brien was employed by the Pennsylvania Central Airlines as a copilot and was earning $210 a month at the time of his death. In a statement dated January 28, 1944, C. W. Weiblen, chief pilot, Pennsylvania Central Airlines Corp., said:

"As evidenced by his work under my direct supervision, Mr. O'Brien had proved himself to be most promising material as a copilot and for further advancement to the position of first pilot. Had he proceeded in the normal course of events, his salary would have been increased from the $210 per month he was making at time of his death to $350 per month by August 16, 1946, on or about which date, if he had not been needed before that, he would have been promoted to the rank of first pilot and his salary thereafter would have averaged $600 per month or better."

It appears that Mr. O'Brien was working on a part-time basis for the Floyd Foren Flyers while not engaged in his regular duties with the Pennsylvania Central Airlines. Since he was not killed while in the course of his employment with the Pennsylvania Central Airlines, his widow was not entitled to any workmen's compensation benefits on account of his death.

The records of the Department of the Army disclose that expenses were incurred in connection with the burial (cremation) of Mr. O'Brien in the amount of $232. The evidence in this case clearly establishes that this accident and the resulting death of William E. O'Brien were not caused by any fault or negligence on his part but appear to have been caused by "pilot error" on the part of the pilot of the Army airplane involved in the accident. The Department of the Army, therefore, believes that Mr. O'Brien's estate should be compensated in a reasonable amount on account of his death, as well as for the burial expenses. The proposed award of $10,232 stated in S. 1994 appears to be somewhat excessive, but the Department would have no objection to the enactment of this bill if it should be amended to provide for an award to the estate of the decedent in the amount of $7,232 ($232 for burial expenses; and $7,000 for the death of Mr. O'Brien), which, it is believed, would constitute a fair and reasonable settlement for all of the damages sustained on account of his death.

Since Mr. O'Brien left a minor child, and as his widow has since remarried, it is believed that any award which may be made by the Congress in this case should be made to the estate of the decedent rather than to his widow as proposed by S. 1994. Accordingly, if this bill is favorably considered by the Congress, it is recommended that the title and text thereof be amended to read as follows:

"A BILL for the relief of the estate of William E. O'Brien, deceased

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury be, and he herby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to the estate of William E. O'Brien, deceased, late of Detroit, Michigan, the sum of $7,232, in full settlement of all claims of the said estate against the United States on account of the death of the said William E. O'Brien, on November 20, 1943, as a result of injuries sustained when an airplane in which he was sitting was struck by an Army airplane at the Detroit City Airport, Detroit, Michigan: 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 agents, attorney or attorneys, 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."

Neither the estate nor next of kin of William E. O'Brien have a remedy under the Federal Tort Claims Act (60 Stat. 842; 28 U. S. C. 921) for the reason that the accident which resulted in his death occurred prior to January 1, 1945.

Sincerely yours,

KENNETH C. ROYALL,
Secretary of the Army.

PENNSYLVANIA CENTRAL AIRLINES,

January 18, 1944.

To Whom It May Concern:

The following is the employment record of William E. O'Brien with Pennsylvania-Central Airlines:

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The following is in reference to the work and status of William E. O'Brien, copilot with Pennsylvania-Central Airlines who met his death by accident November 20, 1943.

As evidenced by his work under my direct supervision, Mr. O'Brien had proved himself to be most promising material as a copilot and for further advancement to the position of first pilot. Had he proceeded in the normal course of events, his salary would have been increased from the $210 per month he was making at time of his death to $350 per month by August 16, 1946, on or about which date, if he had not been needed before that, he would have been promoted to the rank of first pilot and his salary thereafter would have averaged $600 per month or better.

Very truly yours,

PENNSYLVANIA-CENTRAL AIRLINES CORP.,
C. W. WEIBLEN, Chief Pilot.

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