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the financial condition of the prime contractor to whom the lumber was being sold. The insertion in the list of lumber of the clause regarding sight drafts was a purely voluntary act on the part of the Central Procurement Agency; and the fact that, through the inadvertent act of some employee, the information failed to reach vendors who, like Knox Lumber Sales Co., had their purchase allocations issued through the Atlanta branch office, created no liability, either legal or moral, on the part of the United States to reimburse this claimant for the loss it sustained in an ordinary business transaction. There was nothing to prevent Knox Lumber Sales Co. from making its own credit investigation or from determining on its own initiative to ship the lumber on a sight draft attached to the bill of lading.

An additional argument advanced by the claimant is to the effect that the lumber was subsequently used in the performance of another Government contract and that the United States has, therefore, been "unjustly enriched." This contention overlooks the fact that title to the lumber had passed to the Campagna Construction Corp.; that Knox Lumber Sales Co. acquiesced in the arrangement made in the bankruptcy proceedings, at least to the extent of agreeing to release its claim against the Campagna Construction Corp. upon payment of 25 percent of the amount due it; and that the United States made payment in full under the contract in the performance of which it is claimed that the lumber was used. It may be contended that the Campagna Construction Corp. was "enriched" by the bankruptcy proceeding in that it discharged an obligation due by it to Knox Lumber Sales Co. in the amount of $14,058.49 for the sum of $3,514.64; but there is certainly no basis for attempting to follow into the hands of subsequent purchasers property which has been involved in a bankruptcy upon the theory that such purchasers have been "unjustly enriched."

The Department of the Army is of the opinion that there is no justifiable basis for the granting of an award to Knox Lumber Sales Co. and therefore recommends that this bill be not favorably considered.

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

Sincerely yours,

KENNETH C. ROYALL,
Secretary of the Army.

Memorandum re purchases through Central Procurement Agency, Washington,
D. C., for Campagna Construction Corp., Easthampton, Mass.
March 21, 1944: List to Charlotte, N. C., 4,982,900 feet of lumber.
Terms: Sight draft with bill of lading on First National Bank, Hartford, Conn.

TRANSFERS FROM CHARLOTTE TO OTHER CITIES

(a) In which specific instructions were given to ship sight draft, etc. (b) In which such instructions to ship sight draft were omitted. (a) Washington, D. C., Apr. 13, 1944_-_

Lumber Sales Corp., Franklin, Va..
Stitzinger Lumber Co., Philadelphia, Pa....

Feet

102, 000

Fee
52, 000
50,000

102, 000 888, 500

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1 889, 000

Difference of 500 feet not explained but not essential.

(b) Birmingham, Ala., June 12, 1944.

Youngblood & Reynolds Lumber Co., Montgomery,
Ala..

Fee

138, 000

Feet

50, 000

H. H. McMain Lumber Co., Union, Miss. (commerce
July 22; complete June 30 2) -

75, 000

E. B. Walker Lumber Co., Mobile, Ala. (commencing
Aug. 10; complete by Aug. 15).

13, 000

There were other transfers from Charlotte to following cities carrying notation to ship in accordance with terms set forth above-sight draft, etc.:

138,000

Feet

Memphis, Tenn., Apr. 13, 1944__

Atlanta, Ga., July 8, 1944..

Birmingham, Ala., July 8, 1944_.

100, 000 45, 000 75,000

Portland, Oreg., no date or amount.

'Apparently because of rather early and few shipments, even though Birmingham shipments failed to carry the requisite instructions to ship sight draft, only 1 car was unpaid for by Campagna, viz, 1 car from H. H. McMain Lumber Co.

Mr. FRANK MORRIS,

WAR DEPARTMENT,

UNITED STATES ENGINEER OFFICE,
Providence 2, R. I., March 14, 1945.

Knox Lumber Sales Co., Thomson, Ga.

DEAR SIR: Reference is made to previous telephone conversations concerning lumber shipped by the Knox Lumber Sales Co. to the Campagna Construction Corp., Easthampton, Mass., for use in fabricating portable barracks and buildings under contract No. W-37-018-eng-(MSP)-187, order No. 31-2344.

Upon completion of the above-numbered contract certain items of lumber were surplus and available to the contractor for use on contract No. W-37-018-eng-(MSP)-396 covering 375 precut barracks. This fact allowed the contractor to proceed immediately with the cutting of parts for the new contract. The time ordinarily required for locating and shipping the necessary lumber was saved and was advantageous to the United States.

Very truly yours.

Campagna Construction Co..
Easthampton, Mass.
In account with

Knox Lumber Sales Co.,
Thomson, Ga.

W. J. TRUSS,
Colonel, Corps of Engineers,
District Engineer.

KNOX LUMBER SALES Co.,

Thomson, Ga., March 23, 1945. CPA Inquiry No. AE-39320-CA Campagna Purchase Order No. 1317

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Mr. WYCK KNOX,

ARMY SERVICE FORCES,
OFFICE OF THE CHIEF OF ENGINEERS,
Atlanta, Ga., August 13, 1945.

Knox Lumber Sales Co., Thomson, Ga. DEAR MR. KNOX: It is with considerable delight that I learned from recent conversation with you that the matter of your account against the Campagna Construction Co., is still alive and that there is some possibility of the Corps of Engineers of the War Department bringing about a reimbursement of your loss. That would seem to be the proper solution, inasmuch as your merchandise was apparently used for the benefit of the Corps of Engineers.

Respectfully,

W. F. WALKER, Lieutenant Commander (D) L, USNR.

ARMY SERVICE FORCES,
OFFICE OF THE CHIEF OF ENGINEERS,
Atlanta, Ga., February 7, 1945.

KNOX LUMBER SALES, INC.,

Thomson, Ga.

GENTLEMEN: Reference is made to telephone conversation of this date with your Mr. Knox concerning the purchase from your company, by the Central Procuring Agency, Atlanta branch, of a certain quantity of lumber for account of the Campagna Construction Co.

This is to confirm statement to you to the effect that at the lumber letting conducted by Macon, Ga., this organization did not advise the attendants at the letting as to the financial responsibility of the Campagna Construction Co., nor were the attendants instructed to ship on a basis of sight draft.

You were simply informed of the contractor's requirements and asked to undertake the supplying of same.

Respectfully,

W. F. WALKER, Lieutenant D-V (S) USNR.

80TH CONGRESS 2d Session

SENATE

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REPORT No. 1486

LESTER L. ELDER AND MRS. ESTHER E. ELDER

JUNE 4 (legislative day. JUNE 1), 1948.-Ordered to be printed

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

REPORT

To accompany H. R. 35001

The Committee on the Judiciary, to whom was referred the bill (H. R. 3500) for the relief of Lester L. Elder and Mrs. Esther E. Elder, having considered the same, do now report the bill to the Senate favorably, with an amendment, and recommend that the bill, as amended, do pass.

AMENDMENT

On page 1, line 7, strike out "$1,183.49" and insert in lieu thereof "$808.49."

STATEMENT

Your committee has amended the bill to provide for the payment of the exact amount of the monetary loss sustained by this claimant. Attached hereto and made a part of this report are extracts from the House report which set forth in detail the facts in this case:

On January 21, 1946, at about 2:30 p. m., an Army Ford sedan, operated by First Lt. John P. Foley, who had taken the vehicle from a military reservation without authority and for a personal mission, was proceeding in a westerly direotion on United States Highway No. 40, about 16 miles east of Wells, Nev., at a speed in excess of 55 miles an hour. A 1937 Chevrolet sedan, owned and operated by Lester L. Elder, was proceeding in the opposite direction on the same road at a speed of about 40 to 48 miles an hour. Riding with Mr. Elder, as passengers. were Mrs. Esther E. Elder (his wife) and their minor daughters, Evelyn Mae Elder and Donna Lee Elder. As the Army sedan approached the civilian automobile the Army vehicle proceeded across the center line of the highway and directly into the path of the oncoming civilian car. In an effort to avoid an accident Mr. Elder reduced his speed and turned to his right, but the Army car crashed head-on into Mr. Elder's automobile. Both vehicles were damaged beyond economical repair and Mr. Elder, his wife, and their two children sustained minor personal injuries. Mrs. Elder received a cut on her chin and an abrasion of her forehead. The cut on her chin left a permanent scar 4 to 5 centimeters in length. Donna Lee Elder, age 6, received a contusion and abrasion of her upper lip with a small inner laceration of the lip. Evelyn Mae Elder (age not of record) received a bruise on her arm and sprained hip. Mr. Elder's injuries apparently consisted of minor bruises.

The Secretary of the Army in his report, dated October 30, 1947, states: "On February 14, 1946, a claim was filed with the War Department by Lester L. Elder in the amount of $2,633.03 ($548.98 for property damages; and $2,084.05 for the medical, hospital, and incidental expenses incurred and the personal injuries sustained by him and his family). After careful consideration the claim was necessarily disapproved under the provisions of the act of July 3, 1943 (57 Stat. 372; 31 U. S. Č. 223b), as amended, on the ground that the driver of the Army vehicle involved in the accident was using said vehicle without authority and for a personal mission and, therefore, was not acting within the scope of his employment, a condition precedent to the administrative settlement of claims of this nature. Thereafter, Mr. Elder appealed to the Secretary of War from the action taken in disapproving his claim. On August 15, 1946, the Secretary of War sustained the previous action of disapproval and denied the appeal therefrom on the same ground on which the claim had previously been disapproved. "It appears that when this accident occurred Mr. Elder and his family were returning to their home in Missouri after a vacation in California. The evidence fails to disclose that Mr. or Mrs Elder sustained any loss of earnings as a result of the accident.

"If, however, in the light of all the facts and circumstances in this case, the Congress should conclude that these claims are meritorious and that relief should be granted, it is the view of the Department of the Army that the proposed award of $5,000, stated in H. R. 3500, is excessive. Inasmuch as the injuries sustained by Mr. Elder in this accident were of a very minor nature, which apparently did not require medical treatment and resulted in no occupational incapacity or disability, no proper showing has been made that would justify the granting of an award to him in any amount on account of personal injuries sustained by him. De minimis non curat lex. If this bill is favorably considered by the Congress, it is believed that an award to Mr. and Mrs. Elder in the amount of $808.49 ($208.49 for the property damages and losses sustained by them in the accident and the medical and hospital expenses incurred for the treatment of Mrs. Elder and the two children, $631.49, total property damages and losses sustained and medical and hospital expenses incurred, less $423 received by Mr. Elder from the final pay of First Lt. John P. Foley; $400 for the personal injuries sustained_by Mrs. Esther E. Elder; $100 for the personal injuries sustained by Donna Lee Elder; and $100 for the personal injuries sustained by Evelyn Mae Elder) would constitute a fair and reasonable settlement for all of the damages sustained by the members of the Elder family for which they now have claims against the United States."

The Congress has from time to time recognized the liability upon the Government when a driver of a Government vehicle was in an accident while not acting within the scope of his employment. The evidence in this case does not indicate

any negligence on the part of Mr and Mrs. Elder. and the sole cause of the accident was the negligence of the Army driver.

The Secretary of the Army further states that the driver had taken the vehicle from the military reservation without authority and for a personal mission. Your committee is of the opinion that there was negligence on the part of some military personnel in permitting the vehicle to leave the reservation without proper permission, and the liability must be placed on the Army authorities. The Secretary of the Army recommends the sum of $808.49 ($208.49 for the damage to automobile and $600 for personal injuries sustained by the Elders). The evidence submitted to the committee indicates that losses in property damage and other expenses amounted to $583.49. Therefore, the sum of $1,183.49 is recommended as being a reasonable and fair allowance.

Hon. EARL C. MICHENER,

Chairman. Committee on the Judiciary,

DEPARTMENT OF THE ARMY, Washington, D. C., October 30, 1947.

House of Representatives.

DEAR MR. MICHENER: Reference is made to your letter enclosing a copy of H. R. 3500, Eightieth Congress, a bill for the relief of Lester L. Elder, and requesting a report on the merits of the bill.

This bill would authorize and direct the Secretary of the Treasury "to pay, out of any money in the Treasury not otherwise appropriated, to Lester L. Elder, Rocky Comfort, Missouri, the sum of $5,000 in full settlement of alí claims against the United States arising out of the accident which occurred

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