EDGAR BARBRE JULY 25, 1949.-Committed to the Committee of the Whole House and ordered to be printed Mr. DENTON, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 1097] The Committee on the Judiciary, to whom was referred the bill (H. R. 1097) for the relief of Edgar Barbre, having considered the same, reports favorably thereon with amendment and recommends that the bill do pass. The amendment is as follows: Page 1, line 6, strike out "$5,122.50", and insert in lieu thereof "$3,122.50". The purpose of the proposed legislation is to pay the sum of $3,122.50 to Edgar Barbre, of Fields, La., in full settlement of all claims against the United States for the death of his minor son, Joseph Lee Barbre, and all expenses incident thereto, sustained as the result of an accident involving an Army ambulance on Highway No. 171, near Newllano, La., on September 14, 1944. STATEMENT OF FACTS It appears that on September 14, 1944, at about 4:30 p. m., an Army ambulance, operated by an enlisted man on official business, was proceeding north on Highway 171, near Newllano, La., at an estimated speed of 35 miles an hour. The Army driver saw two boys ahead of him on the west side of the road, later identified as Joseph Lee Barbre, 7-year-old son of Edgar Barbre, and Belwin Brinkley, 12 years of age, and when at a distance of about 100 feet from them he reduced his speed somewhat. The evidence shows that Belwin Brinkley observed the approach of the Army vehicle and attempted to restrain Joseph Lee Barbre from crossing the road and that the latter walked or ran into the road from behind an unidentified southbound vehicle directly in the path of the Army vehicle. The Army driver applied his brakes and swerved the ambulance to the right in H. Repts., 81-1, vol. 5—55 as the said district engineer may specify, and shall also notify him promptly, in writing, of the commencement of work, suspension of work, if for a period of more than one week, resumption of work, and its completion. (2) That if the structure or work herein authorized is not completed on or before 31st day of December 1936, this permit, if not previously revoked or specifically extended, shall cease and be null and void. By authority of the Secretary of War: W. H. LANAGAN, War Department, O. C. of E., Form No. 96, Revised April 28, 1922-3-8360. Diagram attached-Proposed fences in Anaheim Bay near Seal Beach, application by Frank Haegele, March 1, 1933, Sunset Beach, Calif. EXHIBIT 4 R. V. PEARSALL, C. E., REGISTERED CIVIL ENGINEER, LICENSED SURVEYOR, I hereby certify that eighty and sixty-five hundredths acres (80.65) of_the Rancho Los Alamitos are included in the oyster-bed location in Anaheim Bay, Orange County, Calif., as recorded in book 483, page 231, Official Records of Orange County, Calif. Signed, EDGAR BARBRE JULY 25, 1949.-Committed to the Committee of the Whole House and ordered to be printed Mr. DENTON, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 1097] The Committee on the Judiciary, to whom was referred the bill (H. R. 1097) for the relief of Edgar Barbre, having considered the same, reports favorably thereon with amendment and recommends that the bill do pass. The amendment is as follows: Page 1, line 6, strike out "$5,122.50", and insert in lieu thereof "$3,122.50". The purpose of the proposed legislation is to pay the sum of $3,122.50 to Edgar Barbre, of Fields, La., in full settlement of all claims against the United States for the death of his minor son, Joseph Lee Barbre, and all expenses incident thereto, sustained as the result of an accident involving an Army ambulance on Highway No. 171, near Newllano, La., on September 14, 1944. STATEMENT OF FACTS It appears that on September 14, 1944, at about 4:30 p. m., an Army ambulance, operated by an enlisted man on official business, was proceeding north on Highway 171, near Newllano, La., at an estimated speed of 35 miles an hour. The Army driver saw two boys ahead of him on the west side of the road, later identified as Joseph Lee Barbre, 7-year-old son of Edgar Barbre, and Belwin Brinkley, 12 years of age, and when at a distance of about 100 feet from them he reduced his speed somewhat. The evidence shows that Belwin Brinkley observed the approach of the Army vehicle and attempted to restrain Joseph Lee Barbre from crossing the road and that the latter walked or ran into the road from behind an unidentified southbound vehicle directly in the path of the Army vehicle. The Army driver applied his brakes and swerved the ambulance to the right in H. Repts., 81–1, vol. 5— -55 an attempt to avoid an accident, but the boy was struck by the left side of the vehicle and the left rear wheel thereof ran over his body. The injured child was taken in the Army ambulance to the Leesville Hospital, Leesville, La., where he died about 30 minutes after arrival. The Secretary of the Army in his report dated July 7, 1949, states: The evidence in this case fairly establishes that the proximate cause of this accident and the resulting death of Joseph Lee Barbre was the negligence of the driver of the Army ambulance involved in the accident in that he was operating his vehicle at a speed in excess of the legal limit and that after observing the two boys standing at the roadside ahead of him he did not immediately so reduce his speed as to be able to avoid an accident if one or both of the boys should attempt to cross the road. In view of the tender years of the decedent no contributory negligence may be attributed to him. The Department of the Army, therefore, believes that Edgar Barbre should be compensated in a reasonable amount for the death of his son. In view of the age of this boy-7 years-the proposed award of $5,122.50 stated in H. R. 1097 is somewhat excessive, but the Department would have no objection to the enactment of the bill if it should be amended to provide for an award in the amount of $3; 122.50 ($122.50 for medical, hospital and burial expenses; and $3,000 for the boy's death), which, it is believed, would constitute a fair and reasonable settlement of the claim. Therefore, your committee concurs in the recommendation of the Department of the Army and recommends favorable consideration to the bill. Hon. EMANUEL CELLER, Chairman, Committee on the Judiciary, DEPARTMENT OF THE ARMY, House of Representatives. DEAR MR. CELLER: The Department of the Army would have no objection to the enactment of H. R. 1097, Eighty-first Congress, a bill for the relief of Edgar Barbre, if it should be amended as hereinafter recommended. * * This bill would authorize and direct the Secretary of the Treasury "to pay, out of any money in the Treasury not otherwise appropriated, to Edgar Barbre, Fields, Louisiana, the sum of $5,122.50, for damages, burial expenses, and hospital expenses, on account of the death of his minor son, Joseph Lee Barbre, resulting from an accident involving an Army ambulance which occurred on September 14, 1944, on Highway Numbered 171, near Newllano, Louisiana * in full settlement of all claims against the United States resulting from said accident". On September 14, 1944, at about 4:30 p. m., an Army ambulance, operated by an enlisted man on official business, was proceeding north on highway 171, near Newllano, La., at an estimated speed of 35 miles an hour. The Army driver saw two boys ahead of him on the west side of the road, later identified as Joseph Lee Barbre, 7-year-old son of Edgar Barbre, and Belwin Brinkley, 12 years of age, and when at a distance of about 100 feet from them he reduced his speed somewhat. The evidence shows that Belwin Brinkley observed the approach of the Army vehicle and attempted to restrain Joseph Lee Barbre from crossing the road and that the latter walked or ran into the road from behind an unidentified south bound vehicle directly in the path of the Army vehicle. The Army driver applied his brakes and swerved the ambulance to the right in an attempt to avoid an accident, but the boy was struck by the left side of the vehicle and the left rear wheel thereof ran over his body. The injured child was taken in the Army ambulance to the Leesville Hospital, Leesville, La., where he died about 30 minutes after arrival. The legal speed limit at the place where the accident occurred was 25 miles an hour. Capt. Wingate M. White, of the Louisiana State Police, in his report of his investigation of this accident, stated that the Army driver was exceeding the lawful speed by 10 miles an hour. On March 1, 1945, a claim was filed with the War Department (now Department of the Army) by Edgar Barbre in the amount of $5,122.50 ($110 for burial expenses; $12.50 for medical expenses; a d $5,000 for the death of his son, Joseph Lee Barbre). Mr. Barbre's claim was approved on May 29, 1945, in the amount of $122.50 (medical, hospital, and burial expenses), and the claimant was so informed by letter dated June 6, 1945, and was advised that that part of his claim in the amount of $5,000 for the death of his son could not be approved under any statute available to the Department for the settlement of claims of this character, An acceptance agreement was enclosed in the above-mentioned letter and Mr. Barbre was advised that if he was willing to accept the amount of $122.50 in full satisfaction and final settlement of his claim and would execute the acceptance agreement and return it to the Department, his claim would be referred to an Army finance officer for payment. He was further advised that the signing of this acceptance agreement would not prejudice his right to seek private relief legislation on account of the death of his son. He did not, however, return the acceptance agreement, and, therefore, no further action has been taken on his claim. The evidence in this case fairly establishes that the proximate cause of this accident and the resulting death of Joseph Lee Barbre was the negligence of the driver of the Army ambulance involved in the accident in that he was operating his vehicle at a speed in excess of the legal limit and that after observing the two boys standing at the roadside ahead of him he did not immediately so reduce his speed as to be able to avoid an accident if one or both of the boys should attempt to cross the road. In view of the tender years of the decedent no contributory negligence may be attributed to him. The Department of the Army, therefore, believes that Edgar Barbre should be compensated in a reasonable amount for the death of his son. In view of the age of this boy-7 years-the proposed award of $5,122.50 stated in H. R. 1097 is somewhat excessive, but the Department would have no objection to the enactment of the bill if it should be amended to provide for an award in the amount of $3,122.50 ($122.50 for medical, hospital, and burial expenses; and $3,000 for the boy's death), which, it is believed, would constitute a fair and reasonable settlement of the claim. This 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)), since the accident out of which the claim arose 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, Secretary of the Army STATE OF LOUISIANA, Parish of Vernon: Before me, the undersigned authority, a notary public in and for the Parish of Vernon, State of Louisiana, duly appointed, qualified and commissioned, on this 15th day of March, 1948, personally came and appeared Belwin Brinkley, known personally to me, who, being first duly sworn, did depose and say: My name is Belwin Brinkley. I am 16 years old and am in the sixth grade at the Leesville Elementary School. I live just south of the Kansas City Southern Railway roundhouse in Leesville, La. On September 14, 1944, I was with Joseph Lee Barbre when he was run over and killed by a United States Army ambulance. The accident happened about 30 minutes after school was out that afternoon. I came home from school and found Joseph Lee visiting at my house with his mother. I discovered that I had left my spelling book under a tree near the schoolhouse and asked Joseph Lee to go back with me and get it. We went and got the book and were returning home when Joseph Lee was hit by the ambulance. Joseph Lee, who was then about 7 years old was run over by the Army ambulance when he crossed United States Highway No. 171 just north of the red and white store in New Llano. He was crossing the highway just in front of me when the ambulance going from Camp Polk to Leesville hit him. The ambulance was going north and had just come over the top of a hill when it hit Joseph Lee who was crossing the road at a place where all the people who live across the railroad tracks usually cross the highway. The ambulance must have been going pretty fast for it was on Joseph Lee before I knew it. The ambulance driver put on his brakes and slid his tires quite a way before hitting the little boy and continued on for about 10 or 15 feet after striking him. After hitting the little boy the two soldiers got out of the abmulance and put him in and took him to the hospital where he died shortly after arriving. This is all I remember about the accident. Sworn to and subscribed before me on this 15th day of March, 1948. (SEAL] BELWIN BRINKLEY. |