A-55352, JUNE 1, 1934, 13 COMP. GEN. 406

A-55352: Jun 1, 1934

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APPLY ONLY TO SUCH CASES AS MAY BE PRESENTED TO THE GENERAL ACCOUNTING OFFICE THAT FROM THE STANDPOINT OF LEGAL LIABILITY ON THE PART OF THE GOVERNMENT OR EQUITIES IN FAVOR OF THE CLAIMANT ARE DESERVING OF SPECIAL CONSIDERATION AND WHICH SAID OFFICE COULD CONSIDER WITH A VIEW OF MAKING ALLOWANCE THEREON BUT FOR THE LACK OF ANY AUTHORIZED PREVIOUSLY ENACTED STATUTORY LAW OR APPROPRIATIONS MADE IN PURSUANCE OF LAWS AUTHORIZING THE PAYMENT OF SUCH CLAIMS. ARE NOT FOR REPORTING TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF APRIL 10. FOR $538 ON ACCOUNT OF MEDICAL TREATMENT AND DAMAGES ALLEGED TO HAVE BEEN DUE TO PERSONAL INJURIES RECEIVED BY HIM ON FEBRUARY 9. IT IS REPORTED THAT AT THE TIME OF THE ACCIDENT.

A-55352, JUNE 1, 1934, 13 COMP. GEN. 406

CLAIMS - ACT OF APRIL 10, 1928 - DAMAGES - PERSONAL INJURIES THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413, APPLY ONLY TO SUCH CASES AS MAY BE PRESENTED TO THE GENERAL ACCOUNTING OFFICE THAT FROM THE STANDPOINT OF LEGAL LIABILITY ON THE PART OF THE GOVERNMENT OR EQUITIES IN FAVOR OF THE CLAIMANT ARE DESERVING OF SPECIAL CONSIDERATION AND WHICH SAID OFFICE COULD CONSIDER WITH A VIEW OF MAKING ALLOWANCE THEREON BUT FOR THE LACK OF ANY AUTHORIZED PREVIOUSLY ENACTED STATUTORY LAW OR APPROPRIATIONS MADE IN PURSUANCE OF LAWS AUTHORIZING THE PAYMENT OF SUCH CLAIMS. CLAIMS FOR DAMAGES RESULTING FROM PERSONAL INJURIES CAUSED BY TORTS OR NEGLIGENCE OF FEDERAL PERSONNEL OR ACTIVITIES, ARE NOT FOR REPORTING TO THE CONGRESS UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 1, 1934:

THERE HAS BEEN PRESENTED FOR CONSIDERATION BY THIS OFFICE UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413, THE CLAIM OF W. T. EVANS, 3716 EVANS AVENUE, ST. LOUIS, MO., FOR $538 ON ACCOUNT OF MEDICAL TREATMENT AND DAMAGES ALLEGED TO HAVE BEEN DUE TO PERSONAL INJURIES RECEIVED BY HIM ON FEBRUARY 9, 1934, ON KINGSHIGHWAY BOULEVARD, ST. LOUIS, MO., WHEN STRUCK BY GOVERNMENT FORD NO. 7, OPERATED BY INSPECTOR MASON OF THE BUREAU OF INDUSTRIAL ALCOHOL, TREASURY DEPARTMENT.

IT IS REPORTED THAT AT THE TIME OF THE ACCIDENT, ABOUT 5 P.M., MASON WAS RETURNING FROM DUTY AT THE APPLETON BREWERY AND ICE CO. LOCATED AT OLD APPLETON, MO., AND WAS DRIVING NORTH ON KINGSHIGHWAY BOULEVARD AT AN ESTIMATED SPEED OF 25 TO 30 MILES PER HOUR, INTENDING TO PROCEED TO HIS HOME TO LEAVE LUGGAGE BEFORE RETURNING GOVERNMENT FORD NO. 7 TO THE GARAGE LOCATED AT ELEVENTH AND WALNUT STREETS; THAT IN ORDER TO AVOID COLLIDING WITH AN AUTOMOBILE IMMEDIATELY IN FRONT OF HIM, WHICH HAD STOPPED ABRUPTLY, MASON SWERVED TO THE RIGHT STRIKING CLAIMANT, WHO WAS ABOUT TO BOARD A STREET CAR; AND THAT THEREAFTER MASON TOOK CLAIMANT TO BARNES HOSPITAL WHERE HE WAS EXAMINED BY DR. RICHARDSON. DR. RICHARDSON,WHEN INTERVIEWED BY AN INSPECTOR OF THE BUREAU OF INDUSTRIAL ALCOHOL, REPORTED THAT:

* * * HE MADE A CAREFUL EXAMINATION OF MR. EVANS FOR INJURIES; THAT HE FOUND WATER ON THE LEFT KNEE, THAT THIS COULD HAVE BEEN FROM SOME FORMER INJURY OR AFFLICTION, OR IT COULD HAVE BEEN FROM THIS INJURY; THAT THERE WERE NO EXTERNAL EVIDENCES OF INJURY, EXCEPT A VERY SLIGHT ABRASION OF THE SKIN AT THE FRONT OF THE LEFT KNEE, JUST BELOW THE KNEECAP, AND WHICH HE CONSIDERED NEGLIGIBLE, AND NOT REQUIRING TREATMENT; THAT HE FOUND NO INDICATIONS OF FRACTURED BONES OR DISLOCATION, AND THAT MR. EVANS HAD CONTROL OF HIS LEG; THAT THIS LEFT KNEE APPEARED TO BE SPRAINED; THAT IN HIS JUDGMENT IT WAS NOT INJURED TO THE EXTENT THAT IT WOULD RESULT IN ANY SERIOUS OR PERMANENT INJURY OR DISABILITY; BUT THAT IT WAS HIS JUDGMENT THAT IT PROBABLY WOULD PREVENT MR. EVANS FROM ENGAGING IN ANY WORK REQUIRING HIM TO BE ON HIS FEET FOR ABOUT A MONTH; THAT HE DID NOT DEEM A CAST OR ANY DEFINITE TREATMENT REQUIRED, AND RECOMMENDED TO MR. EVANS THAT HE GO HOME, THAT HE APPLY HEAT TO THIS KNEE AND KEEP IT QUIET AND NOT USE IT FOR A TIME. HE ALSO STATED THAT THE ONLY OTHER INJURIES HE COULD OBSERVE WAS A SLIGHT CUT ON THE INSIDE OF THE UPPER LIP, APPEARING THAT THE LIP HAD BEEN KNOCKED AGAINST A TOOTH, AND ALSO A SLIGHT ABRASION OF THE SKIN ON THE SIDE OF THE JAW, BUT THAT NEITHER WAS SERIOUS ENOUGH TO NEED TREATMENT. HE FURTHER STATED THAT HE COULD NOT MAKE A WRITTEN OR SIGNED STATEMENT WITHOUT THE AUTHORITY OF DR. BRADLEY, THE SUPERINTENDENT OF THE HOSPITAL. HE HAD ONLY SEEN MR. EVANS ON THIS ONE OCCASION.

AFTER THE ACCIDENT, MASON WAS TAKEN TO THE MOUNTED POLICE STATION AT FOREST PARK WHERE HE WAS BOOKED ON A CHARGE OF RECKLESS DRIVING BUT WAS LATER RELEASED FOR THE STATED REASON THAT THERE WAS NO PROSECUTION.

THERE IS SOME EVIDENCE THAT THE CLAIMANT INJURED THE SAME KNEE ABOUT A MONTH PRIOR TO THE ACCIDENT.

THE CLAIMANT ALLEGES ACTUAL DAMAGES IN THE SUM OF $38, ITEMIZED AS FOLLOWS:

TABLE

EXAMINATION ---------------------------------------------- $3.00

X-RAYS --------------------------------------------------- 10.00

DR. EMERSON ---------------------------------------------- 24.00

NOTARY PUBLIC -------------------------------------------- 1.00

$38.00

ALSO, HE CLAIMS ADDITIONAL DAMAGES IN THE SUM OF $500, ITEMIZED AS FOLLOWS:

TABLE

TOTAL AMOUNT TIME LOST ---------------------------------- $200.00

TOTAL AMOUNT SUFFERING ---------------------------------- 300.00

$500.00

THE CLAIMANT ASSERTS THAT HE WAS "CONFINED TO BED FOR 3 WEEKS AND ANOTHER WEEK UP SITTING AROUND IN CHAIR AND PART TIME IN BED UNTIL MARCH 9, FOR 3 WEEKS AFTER DIDN-T WORK MUCH MY KNEE WAS SO SORE COULDN T GET AROUND VERY WELL.'

THE ACT OF APRIL 10, 1928, REFERRED TO ABOVE, AUTHORIZES THE COMPTROLLER GENERAL OF THE UNITED STATES TO REPORT TO THE CONGRESS WITH HIS RECOMMENDATIONS THEREON, CLAIMS, WHICH IN HIS JUDGMENT, CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF CONSIDERATION OF THE CONGRESS. THE PROVISIONS OF THE ACT APPLY ONLY TO SUCH CASES AS MAY BE PRESENTED TO THIS OFFICE THAT FROM THE STANDPOINT OF LEGAL LIABILITY ON THE PART OF THE GOVERNMENT OR EQUITIES IN FAVOR OF THE CLAIMANT ARE DESERVING OF SPECIAL CONSIDERATION AND WHICH THIS OFFICE COULD CONSIDER WITH A VIEW OF MAKING ALLOWANCE THEREON BUT FOR THE LACK OF ANY AUTHORIZED PREVIOUSLY ENACTED STATUTORY LAW OR APPROPRIATIONS MADE IN PURSUANCE OF LAWS AUTHORIZING THE PAYMENT OF SUCH CLAIMS. THE INSTANT CLAIM DOES NOT COME WITHIN EITHER OF THE CONDITIONS PRECEDENT TO ITS CONSIDERATION UNDER THE PROVISIONS OF THE ACT, SUPRA.

GENERALLY, THE UNITED STATES IS NOT LIABLE FOR INJURIES OR DAMAGES TO THE PERSON OR PROPERTY OF AN INDIVIDUAL CAUSED BY TORTS OR NEGLIGENCE OF ITS OFFICERS OR EMPLOYEES OR BY ITS AUTHORIZED ACTIVITIES. THE ACT OF DECEMBER 28, 1922, 42 STAT. 1066, AUTHORIZING THE HEADS OF DEPARTMENTS ,TO CONSIDER, ASCERTAIN, ADJUST, AND DETERMINE CERTAIN CLAIMS" ON ACCOUNT OF DAMAGES CAUSED BY THE NEGLIGENCE OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT IS AN EXCEPTION TO THE GENERAL RULE. HOWEVER, THAT ACT AUTHORIZES THE ADJUSTMENT OF CLAIMS FOR PROPERTY DAMAGE BUT NOT FOR CLAIMS ON ACCOUNT OF PERSONAL INJURY AS HERE INVOLVED. (SEE 10 COMP. GEN. 175.)

SINCE CONGRESS HAS PROVIDED CERTAIN AFFIRMATIVE RELIEF IN THE CASE OF DAMAGES DUE TO NEGLIGENCE OF GOVERNMENT OFFICERS OR EMPLOYEES, IT SEEMS CLEAR THAT THERE WAS NO INTENTION TO AFFORD RELIEF UNDER THE ACT OF APRIL 10, 1928, ON ACCOUNT OF DAMAGES RESULTING FROM SUCH CAUSES, AND, ACCORDINGLY, THE ADMINISTRATIVE REQUEST THAT THE CLAIM BE SUBMITTED TO THE CONGRESS UNDER SAID ACT MUST BE AND IS DENIED.