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To: District Accounting Officer, Eleventh Naval District.

1. Forwarded, requesting that payment be made to Mr. Patton as requested above.

H. H. RITTER, District Security Officer.

Los ANGELES 44, CALIF., September 8, 1945. Hon. CECIL R. KING,

New Office Building, Washington, D. C. DEAR SIR: I am taking the liberty of forwarding to you copies of correspondence I have had in settlement of a claim, in the hope that you may see fit to introduce a bill into Congress to permit payment of the amount due.

My reason for presenting this to you is that the General Accounting Office, Claims Division, Washington, D. C., has denied what I feel is a just claim.

The substance of my claim is that I was employed for approximately 9 months at a rate of $282 per month under Contract No. N2445-37735, dated September 1, 1943, in the district security office, headquarters, Eleventh Naval District, San Diego, Calif. During that period, I did not use any of the annual leave to my credit for the reason that the work load in the office was such that it was believed that security would have been jeopardized if I had taken my leave. On June 30, 1944, the date of the expiration of my 10-month contract, I was advised that inasmuch as Congress did not approve an appropriation for contract security inspectors for the fiscal year 1945, funds for personal service contracts would not be available after June 30, 1944. Further, on March 13, 1945, I was advised by the General Accounting Office, Claims Division, Washington, D. C., that notwithstanding the circumstances under which I failed to receive the leave which accrued to me, in view of the fact that the Navy Appropriation Act of 1945, Public Law 347, approved June 22, 1944, did not make funds available for the payment of civilian agents on a contract basis after June 30, 1944, there was no authority for payment to me in lieu of the leave which I had failed to receive.

You will please note that the circumstances covered by my claim are the same as covered by ref (f) in the attached file, where payment was made to Mr. Albert R. Lund, a former civilian agent employed in security inspections.

I sincerely trust that you will recognize this as a just claim on my part and that you will be able to assist me by introducing a bill into Congress to permit its payment. Respectfully,

ALVIN G. PATTON. O

ARTHUR HOLBERT; THE ESTATE OF ERNEST L. GASS,
DECEASED; AND THE ESTATE OF JAMES L. THOMAS,
DECEASED

Mar 10, 1949.—Committed to the Committee of the Whole House and ordered

to be printed

Mr. JENNINGS, from the Committee on the Judiciary, submitted the

following

REPORT

To accompany H. R. 3138)

The Committee on the Judiciary, to whom was referred the bill
(H. R. 3138) for the relief of Arthur Holbert, estate of Ernest L. Gass,
and the estate of James L. Thomas, deceased, having considered the
same, report favorably thereon with amendments and recommend
that the bill do pass.

The amendments are as follows:
Page 1, line 5, strike out "$10,000", and insert “$8,396".
Page 1, line 6, strike out “$10,000”, and insert "$2,617.60”.
Page 1, line 8, strike out “$10,000", and insert "$7,500".

The purpose of the proposed legislation is to pay the sum of $8,396 to Arthur Holbert, of Dandridge, Tenn.; to pay the sum of $2,617.60 to the estate of Ernest L. Gass, of Jefferson City, Tenn.; and to pay the sum of $7,500 to the estate of James L. Thomas, late of Jefferson City, Tenn.; in full settlement of all claims against the United States for personal injuries, medical and hospital expenses sutained by the said Arthur Hólbert and Ernest L. Gass, and for the death of James L. Thomas sustained as a result of being shot by M. H. Rogers and A. E. Leake, investigators, Alcohol Tax Unit, Internal Revenue, Department, in the foothills of English Mountains, Jefferson County Tenn., on April 11, 1946.

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STATEMENT OF FACTS

It appears that a few days prior to April 11, 1946, Mr. Holbert, the sheriff of Jefferson County, Tenn., was informed that an illicit moonshine distillery was in operation in the foothills of English Mountains, in Jefferson County, about 12 to 14 miles south of Dandridge. He investigated the report and found the distillery with 6 barrels of

H. Repts., 81-1, vol. 3

41

mash which he presumed would be ready to run off on or about April 11, so he made arrangements to raid the distillery on the morning of April 11. He summoned two of his deputies, Albert McCoig and Ernest L. Gass, and Constable James L. Thomas, who accompanied him to the distillery on the early morning of April 11, 1946.. They arrived at the home of Thomas Seay, about three-fourths of a mile from the distillery, where they left their automobile. This was about 5 o'clock in the morning (central standard time) and approximately at the break of day. It took them about 20 minutes to reach the distillery site and after looking over the scene they decided the operators would appear shortly. So he placed Deputies Gass and McCoig about 120 feet northeast of the distillery site and Constable Thomas and Mr. Holbert took a position southwest of the distillery, at about the same distance. While secreting themselves Mr. Thomas took off his jacket, unfastened his holster in which he carried his gun, laid them on a stone, and was in a crouched position while Mr. Holbert was in about the same position, a few feet away. While in this position, Mr. Holbert heard a noise and the breaking of twigs to the southwest and instantly saw a man coming toward him at a rapid pace with his pistol presented as he neared him. Mr.

Mr. Holbert recognized this man as being Milton H. Rogers, an Alcohol Tax Unit oficer, who had been on raids with him previously, and who was dressed in khaki. As Rogers approached Mr. Holbert, with his gun presented, he said "put your hands up or I will blow you in two. The sheriff stated, "put that gun down, you don't want to shoot anybody. I am Sheriff Holbert and we are here for the same purpose.” Agent Rogers continued to advance and when within about 5 feet or less he shot the sheriff on the left side with a 38-caliber. pistol; the bullet entered just below his ribs and ranged downward, coming out in the right hip, severing the intestines any number of times and shattering the right hip joint. Immediately after he shot the sheriff he yelled, “kill every damn one of them." Mr. Holbert stated he then heard other shots and Agent Rogers shot Constable Thomas three times, killing him instantly; he then returned to Mr. Holbert and beat him with his pistol unmercifully, cutting and bruising his face and head, until Officer McCoig and Agent Rudd went to his rescue.

It was daylight when this shooting took place; the sheriff was unarmed at the time and was in a crouched position and defenseless; he was unable to make very much resistance. He was carried to the Jefferson Hospital at Jefferson City, in his automobile, where he was operated on by Drs. McCown and Fain. He remained in the hospital in a critical condition for 15 days; he was then taken to his home where he was confined about 24 months. He was seriously and permanently injured and is required to wear an elastic belt and still suffers from these injuries.

Mr. Gass, who was seriously injured in this shooting affray, was employed at the time as a pump man for the Universal Exploration Co., at Jefferson City, Tenn., a zinc-mining company, making good wages with which to support his family. After treatment at the Jefferson Hospital he was taken home where he was confined most of the time for more than 3 months, unable to do any work, and from which injury he suffered much pain and anguish. He was taken back to the physician many times for treatment and his family doctor

called on him at his home several times, necessitating the expenditure of considerable money. It appears that Mr. Gass suffered much severe pain and untold discomfort after he resumed work.

Dr. Fain states in his affidavit, dated May 14, 1948, thatErnest Gass had a perforating bullet wound in the right foot, from side to side perforating the bone in the foot. We gave him first aid, tetanus antitoxin, dressed his foot, and sent him home to bed. He was confined to his home for several weeks, unable to stand on this foot and to tend to his duties. I X-rayed him on April 14, 1947, and there is some persistent defect of the bone where he was injured.

In the affidavit signed by Dr. Fain he explains in detail the serious injuries of Sheriff Holbert. Constable Thomas was killed instantly.

The Department of Justice and the Treasury Department have no objection to the enactment of this bill for such sums as the Congress deems adequate. Therefore, your committee recommends the sum of $8,396 paid to Arthur Holbert, $2,617.60 to the estate of Ernest L. Gass and the sum of $7,500 to the estate of James L. Thomas for their relief, and recommends favorable consideration of the bill, as amended.

DEPARTMENT OF JUSTICE,
OFFICE OF THE ASSISTANT TO THE ATTORNEY GENERAL,

Washington, October 19, 1948.
Hon. EARL C. MICHENER,
Chairman, Committee on the Judiciary,

House of Representatives, Washington, D. C. MY DEAR MR. CHAIRMAN: This is in response to your request for the views of this Department relative to the bill (H. R. 6689) for the relief of Arthur Holbert. Ernest L. Gass, and the estate of James L. Thomas, deceased.

The bill would provide for payment of the sum of $10,000 each to Arthur Holbert and Ernest L. Gass, of Jefferson County, Tenn., and to the estate of James L. Thomas, formerly of the same county, in full settlement of all claims against the United States for personal injuries, medical and hospital expenses sustained by the first two-named claimants and for the death of the last-named claimant sustained as the result of being shot by investigators of the Alcohol Tax Unit, Internal Revenue Department.

In compliance with your request, a report was obtained from the Treasury Department concerning this legislation. That report, which is enclosed, sets out in some detail the facts relating to the shooting. Briefly stated, it appears that on April 11, 1946, five investigators of the Alcohol Tax Unit set out for the grapevine section of Cocke County, Tenn., for the purpose of seizing a still which they had previously investigated. They arrived at 3:50 a. m., and, due to the darkness, heavy fog, and overcast skies, visibility was extremely poor and the officers had difficulty in locating the distillery. It was 4:45 a. m. when they arrived at the site. Because of the poor visibility, it was impossible for the investigators to distinguish clearly the figures they saw coming up the trail to the distillery. In the ensuing attempt to capture the men, one was fatally shot and two were wounded. The investigators then learned that the man fatally shot was Constable James L. Thomas, of Jefferson County, and that one of the wounded men was the sheriff of that county. Indictments were returned by the Jefferson County grand jury against all four investigators for murder and assault with intent to commit murder, In addition, one of the investigators was indicted in Cocke Countv for assault and the case was removed to the Federal court for trial. The defendant was convicted and fined $50 and costs. All of the Jefferson County indictments were dismissed with the exception of an indictment against

nvestigator Rogers for murder and for assault with intent to commit murder. The jury was unable to reach an agreement and was discharged. Subsequently, Investigator Rogers pleaded guilty to the assault charge in both indictments and was fined $50 and costs on each.

The Treasury Department states that the tragic encounter between the Federal and State officers was the result of mistaken identity in the early hours of the morning when visibility was poor, and that it was largely due to the failure of the State officers promptly to identify themselves.

The Treasury Department points out that if the Federal Tort Claims Act represents the adoption of a general legislative policy for the determination of tort claims against the United States, based upon the acts or omissions of its employees while acting within the scope of their employment, it would seem that the relief proposed by the bill should be denied and the claimants left to such recourse as they may have under that act. That Department adds, however, that if, notwithstanding the general legislative pronouncement of policy in the Federal Tort Claims Act, the Congress should see fit to award compensation, the Treasury Department would not object to the award of such compensation as the Congress may deem proper. It suggests, however, that in determining the amount of such compensation, the Congress should carefully consider the circumstances of the case, especially the failure of the State officers promptly to identify themselves; the obligations, if any, of the fatally wounded constable to dependents; and the extent of the personal injuries and actual hospital and medical expenses sustained by the other two claimants. The report points out that the record indicates that the injuries sustained by the State officers differed in a substantial degree and that it would seem that if compensation is awarded the award should be made on the basis of the merits obtained in the case of each individual.

The Department of Justice concurs in the conclusions expressed in the report of the Treasury Department.

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.

TREASURY DEPARTMENT,

Washington, July 7, 1948. Hon. PEYTON FORD, Assistant to the Attorney General, Department of Justice,

Washington, D. C. DEAR MR. FORD: Reference is made to your letter of June 3, 1948, addressed to the Secretary of the Treasury, relative to the submission, through the Department of Justice, of a report on H. R. 6689 for the relief of Arthur Holbert, Ernest L. Gass, and the estate of James L. Thomas, deceased.

The bill would authorize and direct the Secretary of the Treasury to pay the sum of $10,000 each to Arthur Holbert and Ernest L. Gass, both of Jefferson County, Tenn., and the sum of $10,000 to the estate of James L. Thomas, formerly of Jefferson County, Tenn., in full settlement of al claims against the United States for personal injuries, medical and hospital expenses by the said Arthur Holbert and Ernest L. Gass, and for the death of James L. Thomas, sustained as a result of being shot by M. H. Rogers and A. E. Leake, investigators, Alcohol Tax Unit, Internal Revenue Bureau, in the foothills of English Mountains, Jefferson County, Tenn., on April 11, 1946.

The facts, according to the files of the Alcohol Tax Unit of the Bureau of Internal Revenue, are substantially as follows:

On April 11, 1946, Special Investigator R. T. Kitts and Investigators Milton H. Rogers, Roy R. Tubb, Arthur E. Leake, and Harold S. Rudd left Knoxville, Tenn., at 2:30 a. m., en route to the grapevine section of Cocke County, for the purpose of seizing a still which they had previously investigated. The officers arrived in the grapevine section at 3:50 a. m. Special Investigator Kitts drove the car out of the section to prevent its discovery by the violators and the other four officers proceeded on foot toward the distillery, which was about threefourths of a mile away. Due to the darkness, heavy fog, and overcast skies, the officers had difficulty in locating the trail leading to the distillery and it was 4:45 a. m. when they arrived at the site. The distillery was located in a small hollow or depression on the west side of English Mountain, approximately half way up the mountainside.

Upon arrival at the still site, Investigator Rogers instructed Investigator Leake to take a position above and to the left of the still, Investigator Rudd to take a position above and to the right of the stiil, and 'Investigator Tubb to take a position to the right of the still. Investigator Rogers took a position below the still and opposite the positions of the other investigators. A few minutes after the investigators were in their respective positions, Investigator Rogers saw four

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