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Cong.; H. Doc. No. 122, 80th Cong., 1st sess.), the Congress appropriated the sum of $1,258 in settlement of these two items of the claim. In its opinion approving the administratrix's claim, the War Department stated:

(* * * the evidence now of record fairly establishes that the accident and resulting property damage and death of Mr. Hudson were caused solely by the negligence of the Army driver in not keeping a proper lookout and in not turning to the right side of the highway after observing the civilian vehicle approaching, and were not caused in whole or in part by any negligence or wrongful act or omission on the part of Mr. Hudson. The evidence establishes that the two lanes for west-bound traffic were closed at the time of the accident, and that Mr. Hudson, accordingly, was not negligent in driving west in the north lane of the two lanes for east-bound traffic."

The Department of the Army states in the light of the foregoing facts that it is the view of that Department that the estate of the decedent should be compen sated in a reasonable amount for his death. It further states that while the proposed award of $15,000 is somewhat excessive, it would have no objection to the enactment of the bill if it should be amended to provide for an award in an amount not ceeding $7,500 which it is believed would constitute a fair and reasonable settlement for the damages sustained on account of the death of Mr. Hudson for which compensation has not heretofore been awarded.

The Department of Justice concurs in the recommendation of the Department of the Army.

The Director of the Bureau of the Budget has advised this Department that there would be no objection to the submission of this report.

Yours sincerely,

The honorable the ATTORNEY GENERAL,

PEYTON FORD,

The Assistant to the Attorney General.

Washington, D. C.

JUNE 9, 1948.

DEAR MR. ATTORNEY GENERAL: Reference is made to your letter with which you enclosed a copy of S. 2726, Eightieth Congress, a bill for the relief of Ellen Hudson, as administratrix of the estate of Walter R. Hudson. You state that the Senate Committee on the Judiciary has requested the Department of Justice to submit a report on this bill and has advised that if reports are necessary from other sources they will be secured by your Department and submitted along with your report to the committee. You, therefore, request the comments of the Department of the Army on S. 2726.

This bill would authorize and direct the Secretary of the Treasury "to pay, out of any money in the Treasury not otherwise appropriated, to Ellen Hudson, as administratrix of the estate of Walter R. Hudson, deceased, the sum of $15,000, in full satisfaction of the claim of such estate against the United States for compensation for the death of the said Walter R. Hudson as a result of personal injuries sustained by him when the automobile in which he was riding was struck by a United States Army vehicle, near Pittman, Nev., on April 4, 1943."

The records of the Department of the Army show that on April 4, 1943, at about 12:30 a. m., an official convoy of Army vehicles was proceeding east on U. S. Highway No. 95, about one and a half miles from Pittman, Nev. The highway in question was a four-lane road and was divided in the center by an island. Two of the lanes normally were used for east-bound traffic and the other two for west-bound traffic. On the night in question the two west-bound lanes of the highway in the vicinity mentioned were closed to traffic because the Department of Highways of the State of Nevada was then engaged in the operation of placing oil on those lanes, and all west-bound traffic was directed onto the north lane of the two lanes normally used for east-bound traffic. Mr. Walter R. Hudson, of Whitney, Nev., was driving his 1939 Plymouth sedan on the north lane of the east-bound portion of the highway. The Army convoy was traveling on the south lane of the east-bound section of the road. At a point in the road where it crossed over a culvert a 21⁄2-ton Army cargo truck, the left wheels of which were traveling slightly to the left of the painted white line of the road, struck Mr. Hudson's automobile with great force. Both vehicles involved in the accident appear to have been traveling within the authorized rate of speed. As a result of the collision the civilian automobile was damaged beyond economical repair and Mr. Hudson was severely injured. He was taken from the scene of the accident to the Las Vegas Hospital, Las Vegas, N. Mex., where he was found to be dead upon arrival at about 1:10 a. m. on the same date.

The evidence shows that Mr. Hudson's automobile was damaged in the accident n the amount of $575 and that the expenses incurred in connection with his burial mounted to $683.

Mr. Hudson was 47 years of age at the time of his death and he left surviving is widow, Mrs. Ellen Hudson, 39 years of age, and two minor children, a son nd daughter, 17 and 15 years of age, respectively, all of whom were dependent pon him for their support. It appears that for some time prior to his fatal injury n April 4, 1943, Mr. Hudson had been engaged in the auto-court business, and hat he also had an income from a water-delivery business. The Department of he Army has been informed that at the time of his death Mr. Hudson had an come from these two businesses in the aggregate amount of about $1,500 per month; that sometimes after Mr. Hudson's death his son was inducted into the rmy and was killed in the Pacific; that Mrs. Hudson's health became poor after er husband's death and that in the spring of 1944 she had to lease the waterelivery business; and that in 1946 she sold the auto-court business for $12,000, ter having operated it for 2 years at a loss.

Mrs. Ellen Hudson was appointed administratrix of the estate of Walter R. udson, deceased, by the Eighth Judicial District Court of the State of Nevada, and for the county of Clark, on June 29, 1943, on which date she duly qualified s such administratrix, and it appears that she is still acting in that capacity. On January 8, 1944, Mrs. Hudson, as administratrix of the estate of Walter R. udson, deceased, filed a claim with the War Department in the amount of 15,620 for damages on account of the death of Mr. Hudson and the destruction his automobile as the result of the accident of April 4, 1943. On January 15, 946, the claim was approved by the War Department under the provisions of the et of July 3, 1943 (57 Stat. 372; 31 U. S. C. 223b), as amended, in the amount of ,258 ($573 for damage to the automobile of Mr. Hudson; and $683 for burial penses) for report to the Congress for an appropriation for the relief of said iministratrix in that amount. There was no statute then and there is none now der which any amount might be paid administratively as damages on account the death of Mr. Hudson. The items of the claim of the administratrix for amage to the automobile of the decedent and for the expenses incurred in conection with his burial, aggregating $1,258, were duly reported to the Congress r consideration. The Congress by the First Deficiency Appropriation Act of 47, approved May 1, 1947 (Public Law 46, 80th Cong.; H. Doc. No. 122, 80th ong., 1st sess.), appropriated the sum of $1,258 in settlement of those two items the claim of the administratrix.

The War Department in its opinion approving the aforesaid claim of the Iministratrix of the estate of Walter R. Hudson, deceased, for report to the Ongress, said:

* * the evidence now of record fairly establishes that the accident and sulting property damage and death of Mr. Hudson were caused solely by the gligence of the Army driver in not keeping a proper lookout and in not turning the right side of the highway after observing the civilian vehicle approaching, d were not caused in whole or in part by any negligence or wrongful act or mission on the part of Mr. Hudson. The evidence establishes that the two hes for west-bound traffic were closed at the time of the accident, and that r. Hudson, accordingly, was not negligent in driving west in the north lane of e two lanes for east-bound traffic."

In the light of the foregoing facts it is the view of the Department of the Army at the estate of Walter R. Hudson, deceased, should be compensated in a reasonle amount for the death of Mr. Hudson. While the proposed award of $15,000, ated in S. 2726, is somewhat excessive, the Department would have no objection the enactment of this bill if it should be amended to provide for an award to is estate in an amount not exceeding $7,500, which it is believed would constitute air and reasonable settlement for the damages sustained on account of the death Mr. Hudson for which compensation has not heretofore been awarded. The estate of Walter R. Hudson, deceased, has no remedy under the Federal rt Claims Act (60 Stat. 842; 28 U. S. C. 921) for the recovery of damages on count of the decedent's death for the reason that the accident which resulted his death occurred prior to January 1, 1945.

Sincerely yours,

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80TH CONGRESS 2d Session

SENATE

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REPORT No. 1738

GABEL CONSTRUCTION CO.

JUNE 16 (legislative day, JUNE 15), 1948.-Ordered to be printed

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

following

REPORT

To accompany H. R. 1734'

The Committee on the Judiciary, to whom was referred the bill (H. R. 1734) for the relief of Gabel Construction Co., having considered the same, do now report the bill to the Senate favorably, with an amendment in the nature of a substitute, and recommend that the bill, as amended, do pass.

The amendment is as follows:

Strike out all after the enacting clause and insert in lieu thereof the following:

Jurisdiction is hereby conferred upon the District Court of the United States for the Southern District of Florida, to hear, determine and render findings of fact as to the amount of loss and damages, if any, sustained by Louis E. Gabel, an individual, trading as Gabel Construction Company of Orlando, Florida, under contract numbered NOY-9336 of the Bureau of Yards and Docks of the Department of the Navy arising out of or attributable to the alleged delay in supplying materials as provided for in said contracts: Provided, That the jurisdiction conferred by this section shall be confined to questions of fact.

SEC. 2. The court shall cause such findings to be certified to the Secretary of the Treasury who is hereby authorized and directed to pay out of any moneys, not otherwise appropriated, the amount set forth in said findings to Louis E. Gabel, trading as Gabel Construction Company.

The purpose of the proposed legislation is to authorize a judicial finding of fact in connection with certain alleged losses sustained by this company as a result of alleged failure on the part of a Government agency to carry out its part of the contract.

STATEMENT

The facts are fully set forth in House Report No. 1558 of the Eightieth Congress, second session, and need not be reprinted here.

Attached hereto is the letter received from the Department of Justice in connection with this bill.

S. Repts., 80-2, vol. 4- -89

JUNE 2, 1948.

Hon. ALEXANDER WILEY,
Chairman, Committee on the Judiciary,

United States Senate, Washington, D. C.

MY DEAR SENATOR: This is in response to your request for the views of this Department relative to the bill (S. 2411) for the relief of Gabel Construction Co. The bill would provide for payment of the sum of $65,089.11, to Gabel Construction Co. in full satisfaction of its claim against the United States under a contract entered into with the United States Government through the Bureau of Yards and Docks of the Navy Department.

In compliance with your request a report was obtained from the Navy Department concerning this legislation. That report, which is enclosed, states that the contract in question was a lump-sum contract for construction of a water treatment plant at Florida City, Fla. Claimant was low bidder at $180,000, but change of orders for additional work brought the total contract payments to $191,511. The Navy Department states that it has been informed that claimant's alleged loss was incurred as a result of a 13-month delay in the completion of the contract, which delay was caused by reasons beyond claimant's control. The report states that the 13-month delay allegedly occurred because the contractor's principal subcontractor (Permutit Co.) required 16 months to complete the delivery of its equipment instead of the 16 weeks which had been anticipated. The Navy Department states that it did not specify Permutit equipment, but accepted claimant's proposal to furnish such equipment as complying with the Navy's requirements under the contract. The report further observes that specific reference to Permutit Co.'s proposal to the contractor was incorporated into the contract only for the purpose of identifying the type of equipment to be furnished to the Navy Department by the contractor. The report states that there would seem to be no basis for concluding that the Government assumed any responsibility for the delivery dates which Permutit agreed upon with the contractor. The Navy Department points out that it has already compensated claimant in the amount of $9,976 for losses incurred as a result of changes in the Government's design made by the contractor for the benefit of the Government with the consent of the Navy and for changes in the Government's design necessitated by insufficiency or inaccuracy of detail therein. A prior bill, H. R. 1734, introduced for the relief of this claimant provided for an award of $136,121.86. By amendment, however, this amount was reduced to $65,089.11, before the bill was passed by the House of Representatives on April 6, 1948. The amount provided for in the present bill covers the rental value of equipment allegedly held on the job for 13 months by direction of the Navy inspector and actual losses sustained in carrying out the contract. With respect to the claim for rental value of equipment held on the site, the Navy Department states that claimant was under no obligation to keep such equipment on the site. It further observes that if any Navy representative prevented the removal of such equipment the action was without warrant under the terms of the contract and "the contractor would seem to have a valid claim for any losses resulting there from." It states, however, that these losses and the actual losses incurred by claimant cannot be compensated by the Navy Department since they constitute unliquidated damages within the legal purview of the Court of Claims and the equitable purview of the Congress. The Navy Department states that it entertains real and justifiable concern that enactment of this bill may give rise to a flood of claims for relief against the losses incurred in the performance of war contracts. It also states that if retroactive relief is to be afforded, it should be afforded by general legislation establishing standards for uniform application and not by individual bills for private relief.

It would appear that the burden of the contractor's claim for relief, aside from the rental value of the equipment, rests upon his contention that the Permutit Co's. proposal was made an integral part of the contract upon which he bid and that such proposal stipulated a delivery schedule of 12 to 16 weeks. It also appears from this contention that claimant believes such incorporation by reference of the Permutit proposal rendered the Navy Department a guarantor of the delivery dates mentioned.

The contractor's request for relief seems to be based upon alleged breach of contract. His averments that his major losses arose out of the failure of Permutit to deliver in accordance with its stipulation, that the stipulated delivery was allegedly guaranteed by the Navy Department, and that the Navy Department's inclusion of the stipulation was tantamount to a guaranty, present issues of fact,

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