A-97178, OCTOBER 11, 1938, 18 COMP. GEN. 327

A-97178: Oct 11, 1938

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IS ENTITLED UNDER THE APPLICABLE REGULATIONS. 1938: THERE ARE FOR CONSIDERATION THE CLAIMS BY THE INSTITUTION AND PERSONS NAMED BELOW FOR THE PAYMENT OF AMOUNTS AS SHOWN FOR SERVICE RENDERED EDWARD DAVIS. - 20.00 IT APPEARS FROM THE PAPERS SUBMITTED THAT DAVIS WAS AN AUTHORIZED DRIVER AND HAD FORMERLY BEEN ASSIGNED TO DRIVE THE TRUCK ON THE NIGHT SHIFT BUT BECAUSE IT HAD BEEN REPORTED THAT DAVIS HAD BEEN SEEN RIDING WITH A GIRL IN THE B.A.E. THE TRUCK AND DRIVER WERE REQUIRED TO LEAVE THE CAMP ON AN OFFICIAL TRIP AT 9 P.M. TO THE FREY DITCH PROJECT IS STATED AS 27 MILES. THE OCCUPANTS OTHER THAN DAVIS WERE KILLED. THERE WERE NO EYEWITNESSES TO THE ACCIDENT BUT IT WAS DISCOVERED ALMOST IMMEDIATELY AFTER ITS OCCURRENCE BY THE TRAIN CREW OF A PASSENGER TRAIN WHICH HAD STOPPED NEAR THE CROSSING TO AWAIT THE CLEARING OF THE TRACK BY THE FREIGHT TRAIN WHICH WAS TAKING THE SIDING.

A-97178, OCTOBER 11, 1938, 18 COMP. GEN. 327

MEDICAL TREATMENT - PUBLIC OR PRIVATE - INJURY WHILE PERFORMING UNAUTHORIZED OFFICIAL DUTY AN ENROLLEE OF THE CIVILIAN CONSERVATION CORPS INJURED WHILE DRIVING A TRUCK IN THE PERFORMANCE OF A REQUIRED OFFICIAL DUTY, ALTHOUGH SUBSTITUTING FOR THE REGULAR ASSIGNED DRIVER, WITHOUT PROPER AUTHORITY, ON THE PARTICULAR DUTY FROM WHICH PREVIOUSLY HE HAD BEEN REMOVED FOR CAUSE, IS ENTITLED UNDER THE APPLICABLE REGULATIONS, TO THE SAME BENEFITS IN THE WAY OF MEDICAL TREATMENT AND HOSPITALIZATION--- PUBLIC AND PRIVATE--- THAT WOULD BE PROVIDED IN THE SAME CIRCUMSTANCES FOR THE ASSIGNED DRIVER OF THE TRUCK, THE INJURY NOT HAVING OCCURRED DURING OR BECAUSE OF THE ACTUAL PERIOD OF ABSENCE WITHOUT LEAVE INVOLVED BUT WHILE IN THE PERFORMANCE OF OFFICIAL DUTIES.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, OCTOBER 11, 1938:

THERE ARE FOR CONSIDERATION THE CLAIMS BY THE INSTITUTION AND PERSONS NAMED BELOW FOR THE PAYMENT OF AMOUNTS AS SHOWN FOR SERVICE RENDERED EDWARD DAVIS, ENROLLEE OF THE CIVILIAN CONSERVATION CORPS IN NOVEMBER 1937, FOR INJURIES SUFFERED IN AN ACCIDENT WHILE DRIVING A GOVERNMENT- OWNED TRUCK DESCRIBED AS A BUREAU OF AGRICULTURAL ENGINEERING 1935 CHEVROLET PICK-UP TRUCK DURING THE NIGHT NOVEMBER 2 3, 1937: METHODIST HOSPITAL, FORT WAYNE, IND. (NO. 0748858) NOVEMBER 3 TO 15 ---------------- ------------------------- $92.67 C. B. PARKER, M.D., FORT WAYNE, IND. (NO. 0748859) NOVEMBER 3 TO 6, 1937 ----------- ------------------------ 51.00 VERNA REED, R.N., BOURBON, IND. (NO. 0748860) NOVEMBER 3 TO 6, 1937 ------ ------------------------------ 20.00 THELMA NOBLE, R.N., FORT WAYNE, IND. (NO. 0748861) NOVEMBER 3 TO 7, 1937 ------------------------------------ 20.00 THELMA KOONTZ, R.N., FORT WAYNE, IND. (NO. 0748862) NOVEMBER 4 TO 7, 1937 ------------ ----------------------- 20.00

IT APPEARS FROM THE PAPERS SUBMITTED THAT DAVIS WAS AN AUTHORIZED DRIVER AND HAD FORMERLY BEEN ASSIGNED TO DRIVE THE TRUCK ON THE NIGHT SHIFT BUT BECAUSE IT HAD BEEN REPORTED THAT DAVIS HAD BEEN SEEN RIDING WITH A GIRL IN THE B.A.E. TRUCK, HE HAD BEEN PLACED ON THE DAY SHIFT AND AN ENROLLEE, BREDEMEYER, HAD BEEN ASSIGNED TO DRIVE THE TRUCK ON THE NIGHT SHIFT. THE TRUCK AND DRIVER WERE REQUIRED TO LEAVE THE CAMP ON AN OFFICIAL TRIP AT 9 P.M. NOVEMBER 2, 1937, TO THE FREY DITCH PROJECT FOR THE PURPOSE OF RETURNING TO THE CAMP THE NIGHT CREW, CONSISTING OF ANOTHER C.C.C. ENROLLEE AS OILER AND A CIVILIAN EMPLOYEE AS DRAGLINE OPERATOR ON THE FREY DITCH DRAINAGE ENTERPRISE. THE DISTANCE FROM THE CAMP, CAMP D-2, FT. WAYNE, IND., TO THE FREY DITCH PROJECT IS STATED AS 27 MILES. ON THE AFTERNOON OF NOVEMBER 2, 1937, BREDEMEYER, THE ASSIGNED DRIVER ON THE NIGHT SHIFT, HAD THE TRUCK GASSED FOR THE NIGHT RUN TO FREY DITCH AND THEREAFTER AT ABOUT 7 P.M., AT THE REQUEST OF DAVIS, TURNED OVER THE KEYS OF THE TRUCK TO DAVIS, HE (DAVIS) OFFERING TO MAKE THE RUN TO FREY DITCH AND RETURN FOR THE ASSIGNED DRIVER. IT APPEARS HE LEFT THE CAMP WITH THE TRUCK AT ABOUT 7 P.M., CALLED ON A YOUNG LADY IN FT. WAYNE, AND AT ABOUT 9 P.M. PROCEEDED TO THE FREY DITCH. IN RETURNING TO THE CAMP WITH THE ENROLLEE AND THE CIVILIAN EMPLOYEE FROM FREY DITCH, AT A PENNSYLVANIA RAILROAD UNATTENDED CROSSING AT WALLEN, IND., AT ABOUT 12.08 A.M., C.S.T., NOVEMBER 3, 1937, AND WHILE DRIVING AT AN UNDETERMINED SPEED, THE TRUCK STRUCK THE EIGHTH CAR FROM THE ENGINE OF A FREIGHT TRAIN MOVING OVER THE CROSSING TO A SWITCH. THE OCCUPANTS OTHER THAN DAVIS WERE KILLED, ONE INSTANTLY AND THE OTHER DYING A FEW HOURS THEREAFTER. DAVIS' INJURIES CONSISTED OF, AMONG OTHERS, A DEPRESSED FRACTURE OF BOTH FEMURS ABOUT FOUR INCHES ABOVE THE KNEE, AND FRACTURE OF THE RIGHT WRIST. THERE WERE NO EYEWITNESSES TO THE ACCIDENT BUT IT WAS DISCOVERED ALMOST IMMEDIATELY AFTER ITS OCCURRENCE BY THE TRAIN CREW OF A PASSENGER TRAIN WHICH HAD STOPPED NEAR THE CROSSING TO AWAIT THE CLEARING OF THE TRACK BY THE FREIGHT TRAIN WHICH WAS TAKING THE SIDING. DAVIS AND THE OTHER INJURED PERSON WERE TAKEN TO THE METHODIST HOSPITAL AT FT. WAYNE, IND., WHERE SUBSEQUENTLY THE OTHER PERSON DIED. ON NOVEMBER 15, 1937, DAVIS WAS TRANSFERRED TO THE STATION HOSPITAL, FORT BENJAMIN HARRISON, IND., FOR FURTHER TREATMENT. A BOARD OF TWO OFFICERS WAS APPOINTED TO INVESTIGATE THE ACCIDENT AND REPORTED THEIR FINDINGS AS FOLLOWS:

AFTER CAREFUL CONSIDERATION OF ALL THE EVIDENCE IN THE CASE, THE BOARD FINDS:

1. THAT ENROLLEE EDWARD DAVIS, CC5-156920, CCC CO. 1590, CAMP D-2, FORT WAYNE, IND., DEPARTED FROM CCC CAMP D-2, SHORTLY AFTER 7:00 P.M., NOV. 2, 1937, WITHOUT AUTHORIZATION TO DO SO, DRIVING A B.A.E. PICKUP WITHOUT AUTHORIZATION; THAT THE UNAUTHORIZED ABSENCE TERMINATED AT TIME OF INJURY, NOV. 3, 1937, AT 12:10 A.M.

2. THAT ENROLLEE DAVIS WAS INJURED AT 12:10 A.M. NOV. 3, 1937, AT WALLEN, IND., AS HE COLLIDED WITH A FREIGHT TRAIN OF THE PENNSYLVANIA RAILROAD CO., THAT ENR. DAVIS WAS DRIVING A B.A.E. PICKUP AT THE TIME OF ACCIDENT, EN ROUTE WITH DRAGLINE OILER FROM FREY DITCH, A REGULAR CCC WORK PROJECT, TO CCC CAMP D-2, FT. WAYNE, IND.

3. THAT THERE WAS NO INDICATION OF THE USE OF INTOXICATING BEVERAGES ON THE PART OF THE INJURED ENROLLEE NOTED AFTER THE ACCIDENT.

4. THAT THE INJURIES TO ENROLLEE EDWARD DAVIS, CC5-156920, DID NOT OCCUR IN THE PERFORMANCE OF DUTY, AND WAS THE RESULT OF THE INJURED ENROLLEE'S OWN MISCONDUCT.

THE CASE APPEARS TO HAVE BEEN CONSIDERED BY THE ADMINISTRATION DEPARTMENT ON THE THEORY THAT THE INJURY OCCURRED WHILE DAVIS WAS ABSENT WITHOUT LEAVE.

CHANGES NO. 75, C.C.C. REGULATIONS DATED AUGUST 24, 1937, PROVIDE:

PRIVATE MEDICAL ATTENDANCE AND PRIVATE HOSPITALIZATION OF A MEMBER OF THE CIVILIAN CONSERVATION CORPS SICK OR INJURED WHILE ON LEAVE ARE NOT CHARGEABLE TO PUBLIC FUNDS. ENROLLEES ON A LEAVE STATUS MAY BE HOSPITALIZED AT GOVERNMENT HOSPITALS AND GIVEN MEDICAL TREATMENT BY GOVERNMENT MEDICAL OFFICERS, THE COST OF SUCH HOSPITALIZATION OR MEDICAL TREATMENT TO BE BORNE BY CIVILIAN CONSERVATION CORPS FUNDS.

IN A CASE IN WHICH THE ENROLLEE IS IN FACT ABSENT WITHOUT LEAVE WHEN THE INJURY OCCURS, THE EFFECT OF THE REGULATIONS, OF COURSE, CANNOT BE EVADED BY AN ADMINISTRATIVE FINDING TO THE EFFECT THAT THE ABSENCE WITHOUT LEAVE TERMINATED AT THE MOMENT OF THE INJURY SO AS TO ENTITLE HIM TO PRIVATE MEDICAL TREATMENT AT THE EXPENSE OF THE GOVERNMENT. TREATMENT OFA CIVILIAN CONSERVATION CORPS ENROLLEE AT PUBLIC EXPENSE BY PRIVATE PHYSICIANS AND IN PRIVATE HOSPITALS FOR AN INJURY SUFFERED WHILE ABSENT ON LEAVE, EITHER PERMISSIVE OR WITHOUT PERMISSION, IS NOT AUTHORIZED UNDER THE REGULATIONS. THE LANGUAGE OF THE REGULATIONS SHOWS CLEARLY THE PURPOSE TO DENY TREATMENT AT THE EXPENSE OF THE GOVERNMENT IN PRIVATE HOSPITALS OR BY PRIVATE PHYSICIANS FOR INJURY OR ILLNESS DEVELOPING OR OCCURRING WHILE ABSENT ON LEAVE AND THAT PURPOSE AND THE PRECISE LANGUAGE CANNOT BE EVADED BY A FINDING THAT ABSENCE TERMINATED WITH THE OCCURRENCE OF THE INJURY OR THE DEVELOPMENT OF ILLNESS.

BUT IN THE PRESENT CASE DAVIS WAS ACTUALLY IN THE PERFORMANCE OF A REQUIRED OFFICIAL DUTY AT THE TIME OF THE ACCIDENT. IT IS TRUE HE WAS SUBSTITUTING FOR THE ASSIGNED DRIVER WITHOUT AUTHORITY FROM THE COMMANDING OFFICER OR OTHER PROPER AUTHORITY, AND BEING IN THE PERFORMANCE OF OFFICIAL DUTY AWAY FROM THE CAMP TECHNICALLY HE, PERSONALLY, WAS ABSENT WITHOUT AUTHORITY AND, THEREFORE, SUBJECT TO SUCH DISCIPLINARY ACTION AS IS APPROPRIATE FOR THAT OFFENSE. ALSO, IT APPEARS THAT HE WAS ACTUALLY ABSENT WITHOUT LEAVE FROM ABOUT 7 P.M. TO 9 P.M. BUT HE WAS INJURED NOT DURING OR BECAUSE OF THE TWO HOUR PERIOD OF ABSENCE WITHOUT LEAVE, BUT WHILE IN THE PERFORMANCE OF OFFICIAL DUTIES--- NOT REQUIRED OF HIM, IT IS TRUE--- AS A SUBSTITUTE FOR THE ASSIGNED DRIVER; AND WHILE IN THE STATUS OF AN ENROLLEE AND SO PERFORMING OFFICIAL DUTIES HE WAS ENTITLED TO THE SAME BENEFITS IN THE WAY OF MEDICAL TREATMENT AND HOSPITALIZATION THAT WOULD BE PROVIDED IN THE SAME CIRCUMSTANCES FOR THE ASSIGNED DRIVER OF THE TRUCK, THE QUOTED REGULATIONS NOT PROVIDING OTHERWISE. FOR THESE REASONS AND NOT FOR THE REASONS ADVANCED IN THE PAPERS ACCOMPANYING THE CLAIMS, THE CLAIMS, TO THE EXTENT OTHERWISE PROPER, WILL BE ALLOWED.