and was able to get around to my business somewhat. However, as this was during the war and I didn't have any help, I was forced to go even though I was still sick. I bled considerably after I was shot, and for a long time after this I was dizzy when I leaned over. Then I noticed that I couldn't stay awake, and if I sat down for any length of time I would doze off to sleep. I was not able to move around a great deal, as I had headaches and it seemed like the shot had hit some of the nerves. The doctor told me that the shot went between the vocal cord and the spine. There were X-rays made at this time, but Dr. Kearney of the Dixie Hospital took them. After this accident, I seemed to immediately put on weight; and, although I only weighed 180 at the time I was shot, my weight has increased to 345 pounds. I am not able now to do a full day's work like I was before. I get tired much quicker, and I used to be able to drive my car by myself, but now it seems I just fall off to sleep at the wheel. I am scared to do any night driving, and during the day I have to have somebody with me. My present work requires that I drive one of my trailers considerably on the highway, and the fact that I cannot stay awake has kept me from making as much money as I would otherwise. My eyes are much weaker than they were. I feel like that, had I not been shot, I would be in excellent health today and would not have the disabilities that I have mentioned. I did not make any claim to the Government on account of this shooting previously, as I felt that during the time of war that if I was not going to be permanently injured I would try to get along, but it becomes more evident every day through my work that I am suffering from the wound, and had my health not become worse and had I not believed that this was due to the injury I would not have filed the claim even now, but I feel like it was not my fault and that I should be compensated for this suffering and loss of earnings.

"I feel like I was in a place where I had a right to be and was just trying to help the Government if there was a fire and can't give any reason why Private McCarthy shot me. The other soldier with Private McCarthy told me that he asked Private McCarthy not to shoot me and he seemed to feel that McCarthy was excited and should not have fired at me. I feel like that I am quite lucky to be living and am thankful for that; but, if the Government feels that I have suffered due to the neglect of duty of this soldier, I would like to get paid for it." On October 13, 1948, Thomas R. Harris made the following sworn statement concerning the incident in which Mr Aiken was wounded:

"On or about 12 o'clock on January 4, 1942, Mr. A. A. Aiken and I left Hampton, Va., to go deer and turkey hunting in New Kent County. I was driving a 1940 Chevrolet, and we had guns in our car for the sport in which we were going to engage. After we had hunted up until about dark, we ended up around Walker, Va. Sometime after 12 o'clock I was driving toward Williamsburg on Route CO. I was at the wheel, and Mr. Aiken was in the front seat beside me, and a Mr. Haley was in the back seat of the car, and it was after midnight.

"We were driving along Route 60 when we noticed a fire over around the Williamsburg Airport. I drove the car across the railroad onto the old Richmond Highway and was turning into the road to the airport when I noticed an Army airplane with scaffle on it. I have done some flying and recognized this as a Government plane. I saw two men standing approximately 200 feet from the road. They were standing by the fire. I realized then that these men knew about the fire and turned my car around to leave. After I had turned my car around, a number of shots were fired at the car, and one of the shots went through the rear-door glass behind my head and passed behind me and through Mr. Aiken's neck and out of the right front-door glass. We had never heard any challenge whatsoever, and we did not give the men any reason whatsoever to shoot, as we never got closer than 200 feet at any time of these men.

"There was no cause or justification for these men to fire at us. We were on the old Richmond Highway, where we had a perfect right to be. I was in the United States Marines, and at the time of the hearing neither one of these men knew what General Orders were for a sentry on post, and it was quite apparent to me that they had not been properly instructed. From an investigation around the scene of the accident, it was brought to my attention that there were a lot of beer bottles and wine bottles, and it would appear that possibly these men had been drinking. The other soldier was alleged to have told Private McCarthy that he should not have shot at us and that he tried to prevent him from shooting. "After Mr. Aiken was shot, I took him to the Bell Hospital in Williamsburg and held the blood in the body by putting my fingers over both wounds, and the pressure around his neck stopped the blood from flowing so bad, as he was bleeding a great deal."

On October 13, 1948, William H. Kelly, chief of police of Williamsburg, Va., made the following sworn statement:

Va.

"1. That he is chief of police for the city of Williamsburg, Va.

"2. That in January 1942 he was sergeant of police for the city of Williamsburg,

"3. That on or about January 5, 1942, a bomber from Langley Field, Va., made a forced landing at the Williamsburg Airport, then being used by the Langley Field as an auxiliary airfield.

"4. That an armed guard was placed around the plane by Langley Field authorities.

"5. That because of the extreme cold the guards had built a fire for warmth. "6. That shortly after 1 a. m. on or about January 5, 1942, he received a call to the Williamsburg Airport that a man had been shot by the guards.

"7. That he went to the airport and talked to the guard who had fired the shot. The guard reported to him that an automobile had approached the grounded plane which he with other soldiers was guarding and when ordered to halt refused to do so. Therefore, he fired four rounds from his .45 automatic pistol purposely high and continued to call to the car to halt. That no rounds were fired until after the car had been ordered to halt. That, when the guard ordered the car to halt, the driver turned the car around and attempted to drive away. That, after the four high warning shots, he fired three more shots, one of which struck the window of the fleeing car.

"8. That he went to Bell Hospital, where he found Mr. A. A. Aiken, of Hampton, Va., was being treated for a slight flesh wound in the back of his neck. "9. That Mr. Aiken said the wound had been inflicted when the guard fired at the automobile.

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"12. That Mr. Aiken and his companions admitted to him that they had been in the vicinity of the airport after midnight as they had been hunting deer and that they approached the airport when they saw a fire there.

"14. That an investigation of the incident was made by Langley Field authorities at the time of the incident and also an investigation was made by the Federal Bureau of Investigation, but that the matter was dropped by the FBI when it was determined that the incident did not occur on a "Government reservation and therefore they had no jurisdiction."

The records of the Dixie Hospital, Hampton, Va., contain the following statement made by Dr. H. D. Howe on January 6, 1942, concerning Mr. Aiken:

"A very obese man who was brought in last night in ambulance, about 4 a. m., with history of having been shot in the neck at Williamsburg. He was seen by Dr. Jones and given tetanus antitoxin and dressing applied after first-aid treatment had been given. There is apparently no injury to the bones and he has no paralysis.'

The records of the Dixie Hospital also contain the following statement made by Dr. E. S. Jones on January 6, 1942:

"This man was seen by me in the emergency room, having been admitted from Williamsburg by way of ambulance, suffering from a bullet wound of the neck. According to the history, he was shot without warning while passing or driving into an airport in the vicinity of Williamsburg. He was treated at Dr. Bell's Hospital in Williamsburg as an emergency and sent to Dixie following that. On admission, he was slightly shocked, but there was no active bleeding from either the wound of entrance or exit; 1,500 units of tetanus administered; ice bags applied to side of neck, and patient admitted to the hospital for further observation. General physical examination is negative except for wounds on either side of neck which appeared to be posterior to the spinal column and did not appear to have injured any vital structures."

On October 12, 1948, Dr. Frank A. Kearney, 110 Curry Street, Phoebus, Va.; submitted the following report concerning the condition of Mr. Aiken:

"Mr. Auldon Aiken gives a history of having been shot through the neck with & 45 Thompson submachine gun on January 4, 1942. At this time he was hospitalized in Dixie Hospital for 3 days and discharged against the advice of his doctor. He gives a history of being out of work for 2 months, and since that time has suffered considerable headaches, especially on coughing when his head [feels] as though it will burst open. He gets dizzy on lying down and suffers frequent headaches. X-ray examination at that time showed no evidence of any bony injury.

Physical examination shows a wound entering just at the base of the skull on one side of the neck and coming out the other side. The wounds are well healed at the present time.

"The patient had no other physical findings, and I believe that he does suffer some from headaches. There is a possibility, of course, that he could have hit one of the vessels in this area and might have an aneurysm of same, which might account for his dizziness and feeling as if his head is going to burst. It is remarkable to me that the patient could have had such an injury without involving any vital structures.'

On October 25, 1948, Dr. Thomas Wheeldon, 318 West Franklin Street, Richmond, Va., made the following statement concerning Mr. Aiken:

"I went over Mr. A. A. Aiken today and found as a history that he had been shot through the neck with a .45-caliber missile.

"He gives, as a complaint, headaches, and dizziness when he bends over. Physical examination shows that this man has scars of the wounds of entrance and exit of the missile, which apparently passed just distal to his occiput and posterior to the spinous process of his cervical spine. The wounds are healed well. There is no other evidence of sequelae from the injury from an orthopedic point of view.

"However, in going over the man and finding the position of the gunshot wound, it seems to me that the explosive effect of the bullet could very well have produced this man headaches and giddiness by its effect on the base of the brain stem. He also states that before the accident he had some deafness in the right car and that this has been accentuated since the accident.

"Here, again, I think that the explosive force could have affected his hearing, especially since, as I understand it, the bullet entered the right side of the neck, although this would not necessarily have to be true to affect his ear. In order to thoroughly clarify this case from the relationship of the injury to the man's present complaint, it probably would be a very good idea to have him seen by Dr. J. M. Meredith, neurosurgeon in Richmond.

"In my opinion, however, it would be difficult to divorce the man's complaints and the injury."

On March 31, 1949, the Office of the Surgeon General of the Army, after a review of the evidence of record in the Department of the Army concerning the injury of Mr. Aiken, submitted the following report:

"A careful review of the records pertaining to Auldon Albert Aiken reveals he is now a claimant who relates certain subjective complaints which he attributes to be the residuals of a healed gunshot wound which was perforating in nature through the posterior portion of the neck and which was sustained near Walker, Va., on January 4, 1942. In general, these subjective complaints consist of: weight gain (180 pounds to 345 pounds), unpleasant sensations of fatigue, drowsiness, headache and dizziness which occur irregularly and intermittently. It is further noted that upon hospitalization, which immediately followed the shooting incident, Mr. Aiken's examining physician reported he was 'a very obese man' and 'has been a hard drinker and has had periodic alcoholic bouts.' On admission to the hospital, the physician found Mr. Aiken's general physical status to be negative except for slight shock, and wounds on either side of the neck which appeared to be posterior to the spinal column and did not appear to have injured any vital structures. No evidence of paralysis was noted, and X-ray examination of the neck on January 6, 1942, revealed no evidence of bony injury. Physical examination accomplished by Frank A. Kearney, M. D., Phoebus, Va., on October 12, 1948, revealed Mr. Aiken's former wounds to be well healed and no abnormal physical findings to be present.

"In view of the above, there would appear to be no causal medical relationship between the gunshot wound in this case and the symptoms of which the claimant complains. Furthermore there is no indication that any significant degree of medical disability exists in this case."

It appears that Mr. Aiken's automobile was damaged in this incident by the gunfire of the soldier guard in the amount of $21.44. The evidence shows that Mr. Aiken was 34 years of age at the time he was wounded. It fails to disclose the expenses incurred by him for medical treatment and hospitalization. Likewise, the evidence fails to show the amount of earnings lost by the claimant on account of his injury.

After a careful consideration of all of the evidence in this case, the Department of the Army is of the opinion that the soldier who shot Mr. Aiken was not, under the circumstances then existing, justified in firing upon the Aiken automobile; that the occupants of the Aiken car did not hear the order of the soldier to halt; and that the wounds sustained by Mr. Aiken were not caused by any fault or

negligence on his part. Under the circumstances, it is believed that Mr. Aiken should be compensated in a reasonable amount for the damages sustained by him on account of this incident. The proposed award of $10,000 stated in H. R. 2628 is excessive. The Department is of the view that an appropriation for the relief of the claimant in the sum of $1,500 ($21.44 for damage to automobile, and $1,478.56 for personal injuries, medical and hospital expenses, and loss of earnings) would constitute a fair and reasonable settlement for all of the damages sustained by Mr. Aiken as a result of this incident. The Department, accordingly, would have no objection to the enactment of this bill if it should be so amended as to provide for an award for the relief of the claimant in an amount not exceeding $1.500.

The claimant has no remedy under the Federal Tort Claims Act (60 Stat. 843; 28 U. S. C. 931), as revised and codified by the act of June 25, 1948 (62 Stat. 933; 28 U. S. C. 1346 (b)), for the reason that the incident out of which his claim arises occurred prior to January 1, 1945.

The Bureau of the Budget advises that there is no objection to the submission of this report.

Sincerely yours,

GORDON GRAY, Under Secretary of the Army.

STATEMENT BY A. A. AIKEN

My name is Auldon Albert Aiken. I was born on June 26, 1907, in Brevard, N. C.

On or about October 15, 1929, I moved to Hampton, Va., and went to work with the Newport News Shipyard & Dry Dock Co. At that time I weighed approximately 155 pounds and was about 6 feet 2 inches tall. I have always followed the trade as a mechanic. I was never bothered with any illness and did not have a family doctor. I always considered my health very good. I like the outdoor life and fished and hunted a great deal.

Sometime in June 1935, I went into the automobile-repair business for myself and was actively engaged in that business at the time I was wounded. In the first part of January 1942, my weight was approximately 180 pounds. I still was enjoying good health and had not, at this time, employed a doctor often enough to consider having a family doctor. On or about 12 noon, on January 4, 1942, a Mr. Thomas Renn Harris and I left Hampton to go to New Kent County turkey hunting. We had with us the necessary guns for this sport. We hunted up until it became dark in New Kent County, which is near Walker, Va After sundown we went down to Penneman, Va., and bought some eggs from Mr. Haley. We took him and drove up to Williamsburg to eat. After we ate, we drove toward Richmond back to Walker on Route 60. Mr. Harris, Mr. Haley, and I were in the car.

Mr. Harris was driving the car. I was sitting on the right-hand side in the front seat. Mr. Haley was in the back seat. We were driving a 1940 Chevrolet two-door sedan. As we were driving along Route 60, on the left Mr. Harris saw a large fire and he pulled off of Route 60 onto the old Richmond Road. He told me that we should go over to the fire and put it out, as this was during the time we were at war and we thought that we were doing our duty to protect the property.

As we approached the fire, we saw an airplane and two soldiers standing guard. We backed our car up and drove down the old Richmond Highway. As we were leaving, one single shot was fired at our car. The shot struck the left quarter glass of my car, penetrated Mr. Haley's coat and struck me in the neck. The bullet passed through my neck and out of the car through the right door. The driver then immediately stopped the car. At the time the shot was fired the solders were 196 yards off as we stepped off the distance from our car to the plane. After it was discovered that I had been shot, Mr. Harris drove me to the Bell Hospital at Williamsburg, Va., where Dr. Bell examined me, and then I was placed in an ambulance and brought to the Dixie Hospital, at Hampton, Va., where I was treated by Dr. Howe and Dr. Jones of Hampton, Va.

I stayed at the Dixie Hospital for approximately 3 days, and then I was removed to my home, where my wife took care of me. I was seen by the doctor every other day for approximately 3 weeks. I was operating a service station at that time and was able to get around to my business somewhat. However, as this was during the war and I didn't have any help, I was forced to go, even

though I was still sick. I bled considerably after I was shot, and for a long time after this I was dizzy when I leaned over. Then I noticed that I couldn't stay awake, and if I sat down for any length of time I would doze off to sleep. I was not able to move around a great deal, as I had headaches, and it seemed like the shot had hit some of the nerves. The doctor told me that the shot went between the vocal cord and the spine. There were X-rays made at this time by Dr. Kearney of the Dixie Hospital, who took them. After this accident, I seemed to immediately put on weight, and, although I only weighed 180 at the time I was shot, my weight has increased to 345 pounds. I am not able now to do a full day's work like I was before. I get tired much quicker, and I used to be able to drive my car by myself, but now it seems I just fall off to sleep at the wheel. I am scared to do any night driving, and during the day I have to have somebody with me.

My present work requires that I drive one of my trailers considerably on the highway, and the fact that I cannot stay awake has kept me from making as much money as I would otherwise. My eyes are much weaker than they were. I feel like that, had I not been shot, I would be in excellent health today and would not have the disabilities that I have mentioned. I did not make any claim to the Government on account of this shooting previously, as I felt that during the time of war that, if I was not going to be permanently injured, I would try to get along; but it becomes more evident every day through my work that I am suffering from the wound; and, had my health not become worse and had I not believed that this was due to the injury, I would not have filed the claim even now, but I feel like it was not my fault and that I should be compensated for this suffering and loss of earnings.

I feel like I was in a place where I had a right to be and was just trying to help the Government if there was a fire and can't give any reason why Private McCarthy shot me. The other soldier with Private McCarthy told me that he asked McCarthy not to shoot me, and he seemed to feel that McCarthy was excited and should not have fired at me. I feel like I am quite lucky to be living and am thankful for that; but, if the Government feels that I have suffered due to the neglect of duty of this soldier, I would like to get paid for it.

I have spent approximately $100 for hospital bills, doctor's bills, and medicines. There were approximately $25 repairs to my car due to the damage caused by the rifle shots. For the pain and suffering and the permanent injuries, including the loss of wages due to my present disability. I feel as though I should be entitled to at least $10,000.

The person who actually shot me was Pvt. J. F. McCarthy, a sentry who was stationed at the Army Air Base at Langley Field, Va. The shooting took place in James City County.

The next day, when it became light, friends of mine examined the scene, and whisky bottles and beer bottles were found at the post set up for guard duty by the sentry. The sergeant who was standing duty but who did not shoot advised me that he begged Private McCarthy not to shoot. It was evident to me that there had been drinking at the time of the shooting.

During the war, my attorney advised me that since the war was on that it would not be patriotic, since I was not in the service, to make a claim, and, as I previously stated, I would not have made this claim had my condition not become worse and I feel that it was caused from the shooting.

STATE OF VIRGINIA.

County of Elizabeth City, ss:

A. A. AIKEN.

Sworn and subscribed to before me, Charles H. Gordon, a notary public for the country and State aforesaid, on this the 7th day of February 1949. My commission expires September 18, 1950.

O

CHARLES H. GORDON,

Notary Public.