A-88799, SEPTEMBER 25, 1937, 17 COMP. GEN. 281

A-88799: Sep 25, 1937

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MEDICAL AND HOSPITAL TREATMENT - NATIONAL GUARD ENLISTED MAN - INJURIES CAUSED BY WILLFUL NEGLIGENCE WHERE A NATIONAL GUARD ENLISTED MAN WAS INJURED IN AN AUTOMOBILE ACCIDENT AT NIGHT WHILE RETURNING TO CAMP AS A "HITCH-HIKER" ON THE RUNNING BOARD OF A PRIVATELY OWNED AUTOMOBILE FROM AN AUTHORIZED VISIT TO A NEARBY PLACE ON PERSONAL BUSINESS. HIS INJURIES WERE NOT SUFFERED IN "LINE OF DUTY" AS CONTEMPLATED BY THE ACT OF JUNE 15. WERE THE RESULT OF HIS . 1937: THERE HAVE BEEN RECEIVED FOR PREAUDIT FOUR VOUCHERS CONSTITUTING THE CLAIMS. AUGUST 10 OR 11 (BOTH DATES ARE GIVEN). WHILE RIDING ON THE RUNNING BOARD OF AN AUTOMOBILE ON WHICH HE WAS "HITCH-HIKING" BACK TO CAMP. IT APPEARS CORPORAL EBEN WAS A MEMBER OF COMPANY L.

A-88799, SEPTEMBER 25, 1937, 17 COMP. GEN. 281

PAY, MEDICAL AND HOSPITAL TREATMENT - NATIONAL GUARD ENLISTED MAN - INJURIES CAUSED BY WILLFUL NEGLIGENCE WHERE A NATIONAL GUARD ENLISTED MAN WAS INJURED IN AN AUTOMOBILE ACCIDENT AT NIGHT WHILE RETURNING TO CAMP AS A "HITCH-HIKER" ON THE RUNNING BOARD OF A PRIVATELY OWNED AUTOMOBILE FROM AN AUTHORIZED VISIT TO A NEARBY PLACE ON PERSONAL BUSINESS, HIS INJURIES WERE NOT SUFFERED IN "LINE OF DUTY" AS CONTEMPLATED BY THE ACT OF JUNE 15, 1936, 49 STAT. 1507, BUT WERE THE RESULT OF HIS ,WILLFUL NEGLIGENCE" WITHIN THE MEANING OF THE NATIONAL GUARD REGULATIONS, NOTWITHSTANDING THE STATE LAW OF THE PLACE, OR THE CAMP REGULATIONS, DID NOT PROHIBIT THE "THUMBING" OF RIDES, OR STANDING ON THE RUNNING BOARD OF A CAR IN MOTION, AND THE MAN'S CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD OF HOSPITALIZATION SUBSEQUENT TO THE ORIGINALLY AUTHORIZED TRAINING PERIOD, AS WELL AS CLAIMS OF PRIVATE PHYSICIAN AND HOSPITALS FOR TREATMENT AND HOSPITALIZATION, MAY NOT BE ALLOWED.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, SEPTEMBER 25, 1937:

THERE HAVE BEEN RECEIVED FOR PREAUDIT FOUR VOUCHERS CONSTITUTING THE CLAIMS, UNDER THE ACT OF JUNE 15, 1936, 49 STAT. 1507, OF CORP. ROBERT F. EBEN, WISCONSIN NATIONAL GUARD, FOR PAY AND ALLOWANCES FROM AUGUST 23, TO SEPTEMBER 23, 1936, IN THE AMOUNT OF $42; OF DR. W. B. HOUSE, SAUGATUCK, MICH., IN THE AMOUNT OF $10; OF LEILA Y. POST MONTGOMERY HOSPITAL, BATTLE CREEK, MICH., IN THE AMOUNT OF $78.30; AND OF STATE OF WISCONSIN GENERAL HOSPITAL, MADISON, WIS., IN THE AMOUNT OF $82.80, COVERING CIVILIAN MEDICAL AND HOSPITAL EXPENSES INCURRED BY SUCH ENLISTED MAN BY REASON OF INJURIES SUSTAINED AT ABOUT 9:30 P.M. AUGUST 10 OR 11 (BOTH DATES ARE GIVEN), 1936, WHILE RIDING ON THE RUNNING BOARD OF AN AUTOMOBILE ON WHICH HE WAS "HITCH-HIKING" BACK TO CAMP.

IT APPEARS CORPORAL EBEN WAS A MEMBER OF COMPANY L, ONE HUNDRED AND TWENTY-SEVENTH INFANTRY, WISCONSIN NATIONAL GUARD, ON AUTHORIZED TRAINING DUTY FROM AUGUST 8 TO 22, 1936, IN A CAMP LOCATED NEAR EAST SAUGATUCK, MICH. AT ABOUT 6:30 P.M. OF THE DAY IN QUESTION, HE AND ANOTHER ENLISTED MAN ASKED PERMISSION TO VISIT SAUGATUCK, MICH., TO DO SOME SHOPPING, WHICH PERMISSION WAS GRANTED WITH INSTRUCTIONS TO RETURN TO CAMP ON OR BEFORE 11 P.M. WHEN THEY HAD PROCEEDED ABOUT 1 MILE ON THE ROAD RETURNING TO CAMP THEY WERE PICKED UP BY A CAR DRIVEN BY A CIVILIAN, WHO ALREADY HAD THREE SOLDIERS AS PASSENGERS. IT IS STATED,"THEY PROCEEDED ABOUT ONE-HALF MILE FURTHER WHEN A FRUIT TRUCK TRAVELING IN THE OPPOSITE DIRECTION STRUCK THEM ON THE INSIDE, THROWING CORPORAL EBEN TO THE PAVEMENT.' THE ACCIDENT OCCURRED ABOUT 1 1/2 MILES FROM CAMP. THE INJURED SOLDIER WAS NOT TAKEN TO CAMP BUT WAS TAKEN ABOUT 3 MILES TO THE OFFICE OF DR. HOUSE, A CIVILIAN PHYSICIAN IN SAUGATUCK, MICH. HE WAS THENCE TRANSFERRED BY A MEDICAL DEPARTMENT AMBULANCE, ACCOMPANIED BY A CAMP MEDICAL OFFICER, TO THE CAMP HOSPITAL, WHERE THEY ARRIVED ABOUT 12:30 A.M. OF THE FOLLOWING DAY. WOULD APPEAR HE WAS TRANSFERRED ON THE SAME DAY TO STATION HOSPITAL, CAMP CUSTER, MICH., THENCE TO LEILA Y. POST MONTGOMERY HOSPITAL, BATTLE CREEK, MICH., FROM WHICH INSTITUTION HE WAS DISCHARGED AUGUST 19, 1936, AND WAS RETURNED TO STATION HOSPITAL, CAMP CUSTER. ON SEPTEMBER 4, 1936, HE WAS TRANSFERRED TO STATE OF WISCONSIN GENERAL HOSPITAL, FROM WHICH HE WAS DISCHARGED SEPTEMBER 23, 1936, IT BEING CERTIFIED HE WAS FIT TO TRAVEL TO HIS HOME AT JEFFERSON, WIS., ON THAT DATE. THE ORDERS DIRECTING THE VARIOUS TRANSFERS ARE NOT ATTACHED TO THE VOUCHERS, AND THE REASON FOR TRANSFERRING THE PATIENT FROM THE ARMY HOSPITALS TO THE CIVILIAN HOSPITALS IS NOT SHOWN.

IT IS STATED THERE IS NO LAW IN THE STATE OF MICHIGAN PROHIBITING "THUMBING" A RIDE OR RIDING ON THE OUTSIDE OF A MOTOR VEHICLE WHILE IN MOTION, AND THAT THERE WAS NO CAMP REGULATION SPECIFICALLY PROHIBITING SUCH ACTION BY MEMBERS OF THE NATIONAL GUARD. THE QUESTION FOR DETERMINATION IS WHETHER THE INJURIES IN THIS CASE WERE SUFFERED IN LINE OF DUTY AS CONTEMPLATED BY THE CITED ACT OF JUNE 15, 1936.

NATIONAL GUARD REGULATIONS 62, PARAGRAPH 4 A (1) AND B (4) PROVIDES:

THE TERM "IN LINE OF DUTY" DOES NOT MEAN MERELY THAT THE PERSON WAS ON A DUTY STATUS AT THE TIME THE INJURY WAS SUFFERED OR THE DISEASE CONTRACTED, BUT THAT THE INJURY OR DISEASE OCCURRED WHILE THE PERSON WAS ON SUCH DUTY STATUS, WAS INCIDENT TO SUCH DUTY STATUS, AND WAS NOT THE RESULT OF WILLFUL NEGLECT OR MISCONDUCT ON THE PART OF THE INDIVIDUAL.

B. NOT IN LINE OF DUTY.--- NEITHER DISEASE NOR INJURY IS IN LINE OF DUTY-

(4) WHEN OCCURRING IN CONSEQUENCE OF WILLFUL NEGLECT OR MISCONDUCT OF THE MAN HIMSELF.

CORPORAL EBEN WAS PERMITTED TO LEAVE CAMP, AFTER HIS TRAINING DUTIES FOR THAT DAY HAD BEEN COMPLETED, FOR A LIMITED TIME FOR THE PURPOSE OF SHOPPING IN A NEARBY TOWN. HIS MOVEMENTS AT ALL TIMES WERE REASONABLY KNOWN TO THE MILITARY AUTHORITIES, AND WHILE NOT ACTUALLY IN THE PERFORMANCE OF DUTY HE WAS CONSTRUCTIVELY UNDER MILITARY CONTROL AND JURISDICTION WHEN INJURED. A DUTY STATUS IS, HOWEVER, NOT SUFFICIENT IN ITSELF TO CONSTITUTE HIS INJURY "IN LINE OF DUTY.' HIS INJURY MUST NOT BE THE RESULT OF HIS "WILLFUL" NEGLECT OR MISCONDUCT. WHILE LAWS HAVE BEEN ENACTED IN NUMEROUS JURISDICTIONS AND REGULATIONS HAVE BEEN PROMULGATED AT CERTAIN CAMPS PROHIBITING THE "THUMBING" OF RIDES, OR STANDING ON THE RUNNING BOARD OF CARS IN MOTION, THE ABSENCE OF SUCH PROVISION DOES NOT RELIEVE AN ENLISTED MAN FROM HIS RESPONSIBILITY TO AVOID PARTICIPATING IN ANY ACTIVITY INVOLVING REAL OR APPARENT DANGER.

THE ESTABLISHED RULE IS THAT AN OCCUPANT OF A MOTOR VEHICLE WHO, WITHOUT SOME REASONABLE NECESSITY OR EXCUSE, RIDES IN A PLACE OR POSITION WHICH HE KNOWS, OR IN THE EXERCISE OF ORDINARY CARE SHOULD KNOW, EXPOSES HIM TO DANGER, IS GUILTY OF CONTRIBUTORY NEGLIGENCE, IF SUCH CONDUCT CONTRIBUTES PROXIMATELY TO CAUSE HIS INJURIES. 42 C.J. 1175.

THIS ENLISTED MAN'S INJURIES WERE INCURRED AS A RESULT OF WHAT IS COMMONLY KNOWN AS ,HITCHHIKING" AND PRIMARILY BY REASON OF HIS RIDING AT NIGHT ON THE RUNNING BOARD OF AN AUTOMOBILE TRAVELING ON THE PUBLIC HIGHWAY. THAT HIS NEGLIGENCE IN INTENTIONALLY UTILIZING SUCH MEANS OF TRANSPORTATION IN RETURNING TO CAMP CONTRIBUTED TO HIS INJURIES IS OBVIOUS; IF HE WAS INTENTIONALLY NEGLIGENT IT WAS "WILLFUL" NEGLIGENCE; HIS INJURIES WERE NOT SUFFERED IN LINE OF DUTY AS CONTEMPLATED BY THE ACT OF JUNE 15, 1936, 49 STAT. 1507.

ACCORDINGLY IT MUST BE HELD THAT PAYMENT OF THE VOUCHERS IS NOT AUTHORIZED, AND THE VOUCHERS WILL BE RETURNED WITHOUT CERTIFICATION FOR PAYMENT.