« PreviousContinue »
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) Fould 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 bunting. 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
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, ho ook 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.
Α. Α. ΑΙΚΕΝ. STATE OF VIRGINIA.
County of Elizabeth City, ss: 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.
CHARLES H. GORDON,
PUBLIC UTILITY DISTRICT NO. 1, OF COWLITZ COUNTY,
JULY 7, 1949.—Committed to the Committee of the Whole House and ordered to
Mr. JENNINGS, from the Committee on the Judiciary, submitted the
[To accompany H. R. 3193)
The Committee on the Judiciary to whom was refer'ed the bill (H. R. 3193) for the relief of Public Utility District No. 1, of Cowlitz County, Wash., having considered the same, report favorably thereon without amendment and recommend that the bill do pass.
The facts will be found fully set forth in House Report No. 365, Eightieth Congress, first session, which is appended hereto and made a part of this report. This bill passed the House and Senate in the Eightieth Congress and was vetoed by the President. However, the committee has received information that the President was not presented with all the facts and now will receive it with an open mind. Therefore, your committee recommend favorable consideration to the
H. Ropt. No. 365, 80th Cong., 1st sess.)
The purpose of the proposed legislation is to pay the sum of $62,299.38 to the Cowlitz County, Wash., Public Utility District No. 1, in full settlement of all claims against the United States for a fee paid by the said public utility district to the clerk of the United States District Court for the Western District of Washington, Southern Division, in cause No. 8592, pursuant to the provision of paragraph 8, section 555, title 28, United States Code Annotated, as then in effect.
STATEMENT OF FACAS
In November of 1940 the Cowlitz County Public Utility District was directed to pay the sum of $62,299.38 to the clerk of the United States District Court for the Western District of Washington, Southern Division, when the district court
entered a decree of appropriation for the acquisition of electrical properties theretofore operated by the Washington Gas & Electric Co. in Cowlitz County. Subsequently the matter was taken up before the Judiciary Committees of the United States House and Senate. The Judiciary Committee for each House rendered & report finding that the fee chargeable under the old law was entirely out of line with the services rendered by the clerk's office. The payment by the Cowlitz County Public Utility District was specifically referred to by both the House and Senate Judiciary Committees as illustrating the unfairness of the old law, and the committee of each House emphasized the need of correcting the law in order to eliminate the unfairness which would otherwise result in pending public utility district condemnation cases in the State of Washington.
It was the basis of these reports that paragraph 8 of the old law which provided as follows was repealed, and the public utility districts were thus relieved from the obligation of paying the 1-percent fee:
“For receiving, keeping, and paying out money in pursuance of any statute or order of court, including case bail or bond or securities authorized by law to be deposited in lieu of other security, 1 per centum of the amount so received, kept, and paid out, or of the face value of such bonds or securities."
At the time the law was changed the Judiciary Committee of the House submitted the following report pertaining to section 2 thereof:
“This section proposes to repeal that provision of existing law which imposes a fee of 1 percent to be collected by the clerk of the district court on receiving, keeping, and paying out money. Hearings were conducted on the bill proposed to exempt States and agencies thereof from payment of the l-percent fee. The attention of the committee was directed particularly to a situation existing in the State of Washington where public utilities districts are faced with the expense of paying the l-percent fee to the clerk of the district court in the acquisition of substantial properties. In one instance, where the jury determined the value of the property involved to be approximately $6,000,000 and made an award in that amount, the fee will amount to some $62,000.
“The service rendered by the clerk in such cases is nominal and not proportionate to the fee charged. The compensation of the clerk is in no way dependent upon the fees collected by him, clerks of the district courts having been put on a salary basis by the act of February 26, 1919. Your committee was of the opinion that, inasmuch as the fee imposed in matters of this kind is out of all proportion to the service performed by the clerk and because of the fact that the fee is not received as compensation by the clerk since he is on a salary basis, the 1-percent fee charged by the clerk for receiving, keeping, and paying out of money should be abolished."
The Cowlitz County Public Utility District was the only district in the State of Washington which was required to pay the enormous fee required under the old law. The unfairness and inequity of this situation was immediately recognized by both House and Senate and was immediately repealed with specific reference having been made in both the Judiciary Committee reports to the Cowlitz County case. It is the belief, that if the matter had been presented to the committee at that time, and they had known that the fee had already been paid, they would have not only remedied all future situations as they did by repealing the old act, but that they would have gone further remedied the Cowlitz County case which they pointed to as showing the inequity and as being the reason for the repeal. The Cowlitz County Public Utility District No. 1 was required to pay out $62,299.38 for clerk's fee to the United States District Court for the Western District of Washington under a manifestly antiquated and unfair law which required this payment from one public body to another. The law was repealed by specific reference to the Cowlitz County case which was the only public utility required to pay this fee, leaving an inequitable situation by which one public utility district was discriminated against to the extent of $62,299.38, and which can only be remedied by the enactment of this legislation.
Therefore, your committee is unanimously of the opinion that this is a meritorious claim and should be paid, and recommend favorable consideration to the bill.
Appended hereto is report from the Administrative Office of the United States Courts, together with House Report No. 1428, Seventy-seventh Congress, first session, Public Law No. 467, Seventy-seventh Congress, repealing the law providing for the payment of fees to clerks of the courts and other pertinent evidence.
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS,
Washington 13, D. C., April 9, 1947. Hon. EARL C. MICHENER, Chairman, Committee on the Judiciary,
House of Representatives, Washington, D. C. DEAR MR. CHAIRMAN: This is in reply to your request of April 8, 1947, for a report with regard to H. R. 2693 entitled “A bill for the relief of Public Utility District Numbered 1, of Cowlitz County, Washington.”
For many years prior to March 3, 1942, clerks of United States district courts were required by statute to collect a fee of 1 percent of the amount involved for receiving, keeping, and paying out money in pursuance of any statute or order of court. All money so received was covered into the Treasury as miscellaneous receipts.
During the first session of the Seventy-seventh Congress the House Judiciary Committee reported a bill (H. R. 5880) repealing the statute requiring the 1. percent fee, which was enacted as Public Law 467 of the Seventy-seventh Congress (56 Stat. 122), approved March 3, 1942. The reasons which prompted the committee's action are stated on page 2 of House Report No. 1428, Seventyseventh Congress, under the heading "Section 2” and the text of the statute repealed is set out on page 3. A copy of this report is enclosed herewith.
The records of this office, including correspondence with the clerk of the court, disclose that in cause 8592 entitled "Public Utility District No. 1 of Cowlitz County, a municipa. corporation, petitioner, v. Washington Gas & Electric Company, a corporation, and the Chase National Bank of the City of New York, and Columbia Electrical Development Company, a corporation, respondents,” there was paid to the clerk of the United States District Court for the Western District of Washington for the respondents, Washington Gas & Electric Co., and the Chase National Bank of the City of New York, a sum in excess of $6,000,000. The clerk acting pursuant to the statute collected a fee of $62,299.38 upon this deposit in the registry of the court which in regular course was covered into the United States Treasury in September 1941,
H. R. 2693 authorizes and directs the Secretary of the Treasury to pay to the public utility district a sum equal to the amount of the clerk's fee referred to, namely $62,299.38. Whether the public utility district should be accorded this relief is a matter of legislative policy for Congress to decide. Although Congress, for sufficient reasons, has since seen fit to repeal the statute under which the fee was charged, at the time the money was collected the law was in full force and effect and as I have stated had been in effect for a good many years. I am not informed of any other claims which have been made for refunds of money paid nrior to repeal of the statute. Sincerely yours.
HENRY P. CHANDLER.
AFFIDAVIT OF W. A. CARDWELL STATE OF WASHINGTON,
County of Cowlilz, 88: W. A. Cardwell, being first duly sworn on oath, deposes and says: That he is now and at all times herein mentioned has been the duly elected, qualified, and acting president of Public Utility District No. 1 of Cowlitz County, Wash. This district is a county-wide municipal corporation, organized pursuant to chapter 1, Laws of Washington, 1931, as amended by chapters 182 and 245, Laws of Washington, 1941, and chapter 143, Laws of Washington, 1945; that on November 26, 1940, affiant, together with the two other commissioners of this public-utility district, caused to be paid to the clerk of the United States District Court for the Western District of Washington, Southern Division, the sum of $62,299.38 in that certain proceeding in eminent domain entitled “Public Utility District No. 1 of Coulilz County v. Washington Gas & Electric Company et al.,” being cause No. 3592. in the records and files of this court; that such payment was made in connection with the entry on that date of a decree of appropriation and amounted to 1 percent of the payments made into court by the district for electrical properties and scilities acquired from the defendants in the proceeding pursuant to such decree; that this payment was made by the district, and accepted by the clerk, pursuant to paragraph 8 of section 8 of the act entitled "An act to provide fees to be charged by clerks of the district courts of the United States," approved February 11, 1925 (43 Stat. 857; U. S. C., 1934 ed, title 28, sec. 555), which was repealed by the