JOE KAWAKAMI

JUNE 29, 1961.-Committed to the Committee of the Whole House and ordered to be printed

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

REPORT

[To accompany H.R. 7610]

The Committee on the Judiciary, to whom was referred the bill (H.R. 7610) for the relief of Joe Kawakami, having considered the same, report favorably thereon without amendment and recommend that the bill do pass.

The proposed legislation was submitted to the Speaker of the House of Representatives by the Secretary of the Army and referred to this committee.

After careful review, the committee recommends favorable consideration of the bill. Identical bills passed the House in the 84th and 85th Congresses.

The communication referred to is as follows:

Hon. SAM RAYBURN,

DEPARTMENT OF THE ARMY,
Washington, D.C., June 2, 1961.

Speaker of the House of Representatives.

DEAR MR. SPEAKER: There is forwarded herewith a draft of legislation for the relief of Joe Kawakami.

The submission of this legislation is in accordance with procedures approved by the Secretary of Defense. The Bureau of the Budget advises that, from the standpoint of the administration's program, there is no objection to the submission of this proposal for the consideration of the Congress, and the Department of the Army recommends its enactment.

The purpose of the proposed bill is to reimburse Joe Kawakami, 3259 Sacramento Street, San Francisco, Calif., for the amount of a judgment and costs obtained against him in the municipal court of Chicago as a result of a traffic accident which occurred when he was

performing his duties as a chauffeur for the Chicago Chemical Procurement District, an agency of the Department of the Army.

On January 9, 1953, Mr. Kawakami was assigned as the driver of a 1951 Chevrolet sedan at the Chicago Chemical Procurement District, 226 West Jackson Boulevard, Chicago 6, Ill. On that date he was instructed to proceed to the Chicago Post Office, on Dearborn Street at Quincy Street, in order to register official mail. On arrival at the post office at about 3:30 p.m., he commenced to park his vehicle by backing into a space on the west side of Dearborn Street at a point opposite its junction with Quincy Street. He had almost completed his parking maneuver when he noticed that parking was forbidden at that point. He then proceeded to vacate the area by maneuvering the Army vehicle to the left and forward around another vehicle which was parked immediately ahead. The latter vehicle was a 1950 Pontiac sedan owned and operated by Martin E. Joyce, 5706 North Kerbs Avenue, Chicago, Ill. As the Army vehicle passed on his left, Mr. Joyce opened the left front door of his vehicle and it collided with the right side of the Army vehicle. No one was injured in the accident. The Army sedan sustained a slight dent in the right rear door and its right rear fender was scratched. The left front door and adjacent parts of Mr. Joyce's sedan were bent.

Mr. Joyce submitted a claim against the United States in the amount of $101.55, the cost of repair of his vehicle. The claim was initially considered by Headquarters, Fifth Army, Chicago, Ill., which determined that the claim was cognizable under the provisions of the Federal Tort Claims Act, as codified and amended (28 U.S.C. 2671 et seq.). It was also determined that the proximate cause of the accident was the negligence of Mr. Joyce in opening his left front door into traffic without first ascertaining that the roadway was clear. The possibility of contributory negligence on the part of the Government driver, in passing too close to the parked vehicle and in not turning aside in time to avoid striking claimant's door, was considered. However, as the damage to the Government vehicle was to the right rear door and fender, the conclusion that Mr. Joyce had opened the door of his vehicle while the Government vehicle was in the act of passing was inescapable. Accordingly, it was determined that Mr. Joyce was clearly negligent and that the United States, if a private person, would not have been liable to him for damages. Therefore, the claim was forwarded with the recommendation that it be disapproved.

Before final action could be taken on the claim, Mr. Joyce, who was a Chicago police lieutenant acting as a special investigator for the Department of Justice, brought suit in the municipal court of Chicago against the Government driver as an individual, asking damages in the amount of $200 for the cost of repairs and loss of use of his vehicle. As the Government was not made a party defendant to the suit, the assistant U.S. attorney who handled the case made no attempt to have the case removed to a U.S. district court as section 9 of the act of May 5, 1950 (64 Stat. 146) permits removal only where members of the Armed Forces are involved and the only other provision of law permitting removal refers solely to cases in which law enforcement officers of the United States are charged in a criminal or civil action (28 U.S.C. 1442). Mr. Joyce testified that he already had dismounted from his vehicle and that the door was in the process of closing and was only open about a foot at the time of the collision. He also testi

fied that at the moment of the collision, he was on the street side of his vehicle to the rear of the door. A witness called on Mr. Joyce's behalf testified that to the best of his recollection it was the front of the Government vehicle which had struck the door of Mr. Joyce's automobile. With Mr. Joyce walking, or even standing, on the street side of his automobile, had the door been open only a foot, or had it actually been the front end of the Army vehicle which contacted the door of his automobile, Mr. Joyce necessarily would have been struck before contact was made with the door. These inconsistencies do not appear to have been called to the court's attention and judgment was rendered for Mr. Joyce in the amount of $101.55. As the United States was not a party to the suit, the costs incurred in making an appeal necessarily would have been borne by Mr. Kawakami, even had the U.S. attorney assisted therein. The office of the U.S. attorney indicated that such an appeal probably would not be successful. Accordingly, no appeal was taken in the 20 days provided therefor, and Mr. Kawakami, on April 29, 1954, personally satisfied the judgment against him by the payment of $106.05, which included court costs of $4.50. Therefore, Mr. Joyce's damages were satisfied and his claim against the United States was closed administratively without action.

In the case of United States v. Gilman (347 U.S. 507), it was held that the United States is not entitled to recover indemnity from one of its employees for whose negligence it has been held liable under the Federal Tort Claims Act, supra. The Court pointed out that "a complex of relations between Federal agencies and their staffs is involved," and very clearly intimated that, far from attempting to obtain contribution from its employees as joint tort-feasors, the legislative history of the Federal Tort Claims Act indicated an intent to save them harmless from the consequences of acts in the scope of their employment even where negligence was involved. In a footnote to the case, the Court invited attention to the testimony of Mr. Francis M. Shea, then Assistant Attorney General, in hearings before the House Committee on the Judiciary on H.R. 5373 and H.R. 6463, 77th Congress, 2d session, that

"It has been found that unless the Government is willing to go in and defend [its drivers] the consequence is a very real attack upon the morale of the services. Most of these persons are not in a position to stand or defend large damage suits, and they are of course not generally in a position to secure the kind of insurance which one would if one were driving for himself" (pp. 9-10) (see also S. Rep. 1196, 77th Cong., 2d sess., p. 5).

H.R. 7577, 86th Congress, an act to amend title 28, entitled "Judiciary and Judicial Procedure" of the United States Code to provide for the defense of suits against Federal employees arising out of their operation of motor vehicles in the scope of their employment, and for other purposes, was passed by both Houses of Congress. On June 11, 1960, H.R. 7577 was vetoed by the President. The veto message stated in part as follows:

"As originally introduced, this legislation provided that when a Government driver is sued in a State court on a claim arising from his operation of a motor vehicle while acting within the scope of his employment, such action should be removed to the appropriate U.S. District Court. There it would become an action against the

United States under the Federal Tort Claims Act and be the plaintiff's exclusive judicial remedy. Government drivers would thus cease to be defendants and would be relieved of personal liability in such cases. These are desirable objectives.

"The bill was amended, however, to require the consent of the plaintiff before any such action could be removed to a Federal court. This amendment is unfortunate, for any plaintiff, by refusing to give his consent, could prevent the conversion of the action to one under the Federal Tort Claims Act and thus thwart the sound purposes of the original bill. The amendment also makes the bill inconsistent internally and could give rise to needless litigation.

"Although unwilling, therefore, to approve this bill, I would gladly sign new legislation corresponding to H.R. 7577 as first passed by the House of Representatives."

Thus it is clear that the Congress and the President have deemed it desirable to enact general legislation to provide for the defense of suits against Government employees arising out of vehicular accidents in the scope of their employment. In this regard it is noted that several bills have been introduced in the 87th Congress to effectuate this purpose. The present case represents one in which the attack upon the morale of Government employees is emphasized. Here, suit was brought after an initial administrative finding that the accident was attributable to negligence on the part of the claimant. It was brought in a court not subject to the provisions of Federal law and in which the provisions of the Federal Tort Claims Act, supra, had no application. The claimant elected to sue only the driver, who was represented by Government counsel, even though the employer of the driver already had determined administratively that the driver was without fault or negligence.

There was no provision of law then, under which the United States could have paid the judgment against Mr. Kawakami, nor is there any provision of law now which would permit his reimbursement except through the enactment of private relief legislation.

The proposed draft of this legislation was introduced as H.R. 3361, 84th Congress. H.R. 3361 passed the House of Representatives on March 15, 1955 (H. Rept. 165). On April 25, 1955, the Senate Judiciary Committee indefinitely postponed action on this bill. An identical bill, H.R. 5082, was introduced in the 85th Congress on February 19, 1957. This bill passed the House of Representatives on April 16, 1957 (H. Rept. 260), and was referred to the Senate Judiciary Committee on April 17, 1957. However, the Senate took no action. on this bill prior to the adjournment of the 85th Congress.

Many parallel cases, involving U.S. Government employees have been considered favorably by Congress. These include Private Laws 779, 810, 811, 816, and 820, 82d Congress, Private Law 135, 83d Congress, Private law 499, 84th Congress, and Private Laws 532, 534, 535, 536, 538, 541, 542, 543, 545, 546, 547, 548, 550, 701, and 748, 85th Congress.

The cost of this bill, if enacted, will be $106.05.

Sincerely yours,

ELVIS J. STAHR, Jr.,

Secretary of the Army.

A BILL For the relief of Joe Kawakami

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 is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Joe Kawakami, 3259 Sacramento Street, San Francisco 15, California, the sum of $106.05, in full reimbursement of the expenses incurred by him personally in paying a judgment obtained against him in a civil action in the Municipal Court of Chicago, as the result of a vehicular accident which occurred on January 9, 1953, at Chicago, Illinois, when be was acting within the scope of his employment as the chauffeur of the Army vehicle involved in said accident: Provided, That no part of the amount appropriated in this Act shall be paid or delivered to or received by any agent or attorney on account of services rendered in connection with such claim, any contract to the contrary notwithstanding. Any person violating any of 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.