Omaha. It was subsequently discovered that this advice was erroneous, and all of the widow's claims for damages flow from the decisions she made with the erroneous statements of the Army officer in mind.

In the Eightieth Congress, a bill (S. 69) was introduced for the purpose of making direct award to Mrs. Benolken in the amount of $4,257.48. This bill was considered by the Judiciary Committee of the Senate at that time, and a favorable report was made to the Senate in which the amount awarded was reduced to $306.43. This bill subsequently passed the Senate.

Neither the claimant nor the sponsor felt that this amount was sufficient compensation.

The committee believe that this claimant is entitled to some measure of relief and are willing the controversy should be submitted to a court for determination.

LOUIS J. WALINE

MAY 18, 1949.-Committee to the Committee of the Whole House and ordered to be printed

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

following

REPORT

[To accompany S. 1911

The Committee on the Judiciary to whom was referred the bill (S. 191) for the relief of Louis J. Waline, having considered the same, report favorably thereon without amendment and recommend that the bill do pass.

The facts will be found fully set forth in Senate Report No. 122, Eighty-first Congress, which is appended hereto and made a part of this report. Your committee concur in the recommendation of the Senate.

[8. Rept. No. 122, 81st Cong., 1st sess.

The purpose of the proposed legislation is to compensate Louis J. Waline, o Lincoln, Nebr., in the amount of $2,500 in full satisfaction of his claim against the United States for compensation for personal injuries sustained by him when struck by a Civil Air Patrol plane while said plane was being operated as a part of the armed forces.

AMENDMENT

Strike out all after the enacting clause and insert in lieu thereof the following: That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Louis J. Waline, of Lincoln, Nebraska, the sum of $2,500, in full settlement of all claims against the United States on account of personal injuries sustained by him on October 28, 1943, at the Lincoln Army Air Field, Lincoln, Nebraska, when he was struck by an airplane operated by a member of the Civil Air Patrol on business for the Army Air Forces: Provided, That no part of the amount appropriated in this Act shall be paid or delivered to or received by any subrogee: And provided further, That no part of the amount appropriated in this Act in excess of 10 per centum thereof shall be paid or delivered to or received by any agent or agents, attorney or attorneys, on account of services rendered in connection with this claim, and the same shall be unlawful, any contract to the contrary notwithstanding. Any person violating any of the provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not exceeding $1,000.

STATEMENT

It appears that on October 28, 1943, at about 10 a. m., a Culver Dart airplane owned and operated by Lt. Donald C. Henry, a member of the Civil Air Patrol, after landing on the Lincoln Army Air Field, Lincoln, Nebr., was taxying north on the taxi strip toward a parking area. The Civil Air Patrol at that time, pursuant to Executive Order 9339, was operating as an auxiliary of the Army Air Forces, and Lieutenant Henry was operating his plane on a regular_courier service flight for the Army. Louis J. Waline, a civilian employee of the Roberts Construction Co., was at work on the taxi way. The pilot states that when he was about 75 to 100 feet from the workman he saw the latter near the right-hand edge of the strip, apparently well out of danger. The pilot's vision was partly obscured by the forward part of the plane. Sgt. Jose B. Ortiz, who was flagging the plane to a parking space, states that Waline was directly in the path of the plane and that he, Ortiz, made a vain attempt to warn him, but Mr. Waline apparently neither saw the approaching plane nor heard the warning and was struck by the right wing of the plane.

Mr. Waline was 73 years of age at the time of the accident and was employed as a laborer at a wage of 70 cents an hour. His only dependent is his wife, age 72. He received severe crushing injuries to his chest and multiple abrasions and contusions. He has received State compensation benefits in the aggregate amount of $5,477.10. which includes $617.10 for medical, hospital, and incidental expenses.

The Department of the Army in its report, which is concurred in by the Department of Justice, recommends an award of $2,500, as well as other amendments which have been incorporated in the bill under consideration.

Attached hereto and made a part of this report are letters received from the Department of the Army and the Attorney General in connection with an identical bill of the Eightieth Congress.

The honorable the ATTORNEY GENERAL,

Washington.

SEPTEMBER 13, 1948.

DEAR MR. ATTORNEY GENERAL: Reference is made to your letter with which you enclosed a copy of S. 1991, Eightieth Congress, a bill for the relief of Louis J. Waline. 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 this Department on S. 1991.

This bill provides as follows: "That the Secretary of the Treasury is authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Louis J. Waline, of Lincoln, Nebr., the sum of $15,542.80, in full satisfaction of his claim against the United States for compensation for personal injuries sustained by him on October 28, 1943, when he was struck by a United States Army airplane while working as a member of a repair crew at the Lincoln Armv Air Base.

On October 28, 1943, at about 10 a. m., a Culver Dart airplane, owned and operated by Lt. Donald C. Henry, a member of the Civil Air Patrol, after landing on the Lincoln Army Air Field, Lincoln, Nebr., was taxying north on the taxi strip toward a parking area. Louis J. Waline, a civilian employee of the Roberts Construction Co., was at work on the taxi way, cleaning out joints in the concrete strip. It appears that the forward part of the plane prevented the pilot from seeing directly ahead of him and that in order to determine whether the way was clear he was swinging the tail from side to side. The pilot states that when he was about 75 to 100 feet from the workman he saw the latter near the right-hand edge of the strip, apparently well out of danger. Sgt. Jose B. Ortiz, however, who was flagging the Civil Air Patrol plane to a parking place, states that Mr. Waline was directly in the path of the plane and that he (Sergeant Ortiz) made a vain attempt to warn him of his imminent peril. Mr. Waline apparently neither saw the approaching plane nor heard Sergeant Ortiz' warning, and was struck by the right wing of the plane.

As a result of this accident Mr. Waline sustained serious chest injuries. On October 30, 1943, Maj. William W. Chase, Medical Corps, United States Army, Chief of Surgical Service, station hospital, Army Air Base, Lincoln, Nebr., made the following statement:

"This is to certify that Lewis (Louis) J. Waline, civilian, was first seen by me in the surgical emergency room at approximately 1000 [10 a. m.] o'clock, October 28, 1943, at which time he was in a severe condition of shock, complaining of inability to breathe and also of severe pain in the region of his left chest and upper abdomen.

"Examination revealed the patient to be completely disoriented with a severe crushing injury of his left chest, revealing multiple simple and comminuted fractures extending from the fourth to the ninth ribs.

"Portable X-rays of the chest, made after the initial treatment for shock, revealed the numerous fractures above-mentioned, along with evidence of hemorrhage within the left lung itself. Due to the seriousness of this patient's condition, he was admitted directly to the hospital for continuation of shock therapy and observation.

"Subsequent examination revealed a definite injury. In all probability an intracapsular laceration of the left kidney determined by the presence of frank blood in the urine, bladder injury having been ruled out by previous examination. There is probably abdominal or retroperitoneal hemorrhage present, the exact location of which cannot be definitely stated and apparently is under control at this time.

"The mental condition of this patient revealed definite disorientation which, in all probability, occurred as a result of the injury per se. There was no evidence of alcohol or drugs.

"The condition of this patient is serious, although at the time of this examination his condition was definitely improved over that of the past 24 hours."

On May 21, 1948, First Lt. D. P. Burt, Medical Corps, United States Army, Chief of Medical Service, Air Force station hospital, Offutt Air Force Base, Fort Crook, Nebr., made the following report of an examination of Mr. Waline:

ABSTRACT OF CLINICAL RECORD

"Register No. 37500 (carded for record only). Date of admission: May 17,

1948.

"Name: Waline, Louis J., civilian. "Age: 77. Race: White.

Waline (wife), Holdrege, Nebr.

Name and address of nearest relative: Castina C.

"Diagnoses: 1. Fracture, simple, healed, posterior portion of left fourth, fifth, sixth, seventh, eighth, ninth, and tenth ribs, AI when patient was struck by wing of CAP aircraft while aircraft was taxying at Lincoln AAFld, Lincoln, Nebr.. October 28, 1943.

"2. Pleuritis, chronic adhesive, caused by trauma, left costophrenic angle.

"3. Arteriosclerosis, generalized, moderate.

"4. Arrhythmia, cardiac, cause unknown, premature contractions.

"5. Undiagnosed condition manifested by dilated left pupil that does not react to light

*

* * *

"Pertinent history, chief complaint, and condition on admission: Chief complaint: Shortness of breath, pain in left side-duration 5 years. General appearance and condition on admission: 77-year-old white male, obviously short of breath, weak, senile. Family history: Noncontributable. Previous personal history: Noncontributable. Injuries: 1943, hit in left side by moving wing of airplane. Broke seven ribs on left side and says he suffered ruptured left kidney. History of the present illness: Patient says that since 1943 and the accident he has suffered from shortness of breath and pain in the left side of his lower chest. Review of system: Dizziness when stands up suddenly, occasional nocturia, appetite fair. Past history: Fracture left tibia 15 years ago. Denies all else. Physical examination: Skin: Thin, wrinkled. Head: Left pupil dilated, does not react to light. Right pupil smaller, reacts to light and accommodation. Extra-ocular movements good. Neck: Negative. Thorax: Respiration 27 per minute. Lungs: Decreased breath sounds left posterior chest. Vascular system: Generalized arteriosclerosis. Blood pressure: Systolic: 120 lying, 110 sitting, 80 standing. Diastolic: 70 lying, 70 sitting, 60 standing. Heart: Occasional premature ventricular extra-systoles. No thrills or murmurs. Not enlarged. Abdomen: No masses or tenderness. Liver and spleen not palpable. Hernia: None. Genitourinary: Negative. Anus and rectum: Negative. Glandular system: Negative. Bones and joints: Negative, except as stated above. Muscular system: Negative. Nervous system: Reflexes physiological. Progress notes: Chest X-ray shows healed fractures

*

H. Repts., 81-1, vol. 3—81

of left fourth through tenth ribs and pleural thickening left lower chest. Urinalysis negative. Kahn negative. Impression: Only findings referable to injury are: (1) Healed fractured ribs fourth through tenth, left chest; (2) old pleurisy left chest; (3) dilated left pupil. Other findings: (1) Generalized arteriosclerosis; (2) moderate cardial arrhythmia; * * *

"Radiologic report: Healed fractures, posterior portion of left fourth, fifth, sixth, seventh, eighth, ninth, and tenth ribs. Pleural thickening left costophrenic angle and left lower chest. Calcified aortic knob. Otherwise essentially negative * * * "

Because of the injuries sustained by Louis J. Waline in this accident he incurred medical, hospital, and incidental expenses in the aggregate amount of $617.10, which were paid by his employer's workmen's compensation insurance carrier under the Nebraska Workmen's Compensation Act. Following the accident there was paid to Mr. Waline compensation at the rate of $15 a week in the aggregate sum of $3,285, and thereafter there was paid to him additional compensation in the sum of $1,575 under a lump-sum settlement which was approved by a judgment of the District Court of Lancaster County, Nebr., entered on January 21, 1948. The total compensation paid to Mr. Waline on account of his injury in this accident, therefore, amounted to the sum of $4,860.

Mr. Waline was 73 years of age at the time of his injury on October 28, 1943, at which time he was employed as a laborer at a wage of 70 cents an hour. His only dependent is his wife, Mrs. Castina Katherine Waline, 72 years of age.

The Civil Air Patrol, which was established in the Office of Civilian Defense on December 8, 1941, was transferred to the War Department by Executive Order 9339, on April 29, 1943, to be operated as an auxiliary of the Army Air Forces. At the time the accident of October 28, 1943 occurred, Lt. Donald C. Henry, a member of the Civil Air Patrol, was operating his airplane on a regular courier-service flight for the Army. It appears that he was paid by the Army for the use of his plane and for his flying time.

It is the view of the Department of the Army that the injury of Mr. Waline was proximately caused by the negligence of the Civil Air Patrol pilot, in that after observing the claimant working on the airstrip ahead of him he failed to take such positive measures as would have prevented his airplane from striking him. As herein before stated, this pilot at the time the accident occurred was engaged on a regular courier-service flight for the Army and was being paid by the Army for the use of his plane and for his flying time. It is, therefore, believed that under such circumstances he may properly be regarded as an employee of the Army, and that Mr. Waline is equitably entitled to reasonable compensation from the United States for the damages sustained by him as a result of the accident. The proposed award of $15,542.80 stated in this bill is excessive, particularly in view of the compensation benefits in the aggregate amount of $5,477.10 ($4,860, compensation paid to Mr. Waline, and $617.10 for medical, hospital, and incidental expenses incurred by him as a result of his injury), which were paid to and for the benefit of the claimant under the Nebraska Workmen's Compensation Act. Considering the age of the claimant at the time of this accident, the nature of the injuries sustained by him in the accident, which have resulted in a large degree of permanent disability, the pain and suffering he has undergone, the fact that he has a wife dependent upon him for support, and the amount of workmen's compensation benefits which have been paid to him or for his benefit, it is believed that an award to the claimant by the Congress in the amount of $2,500 would constitute a fair and reasonable settlement of his claim against the United States for damages on account of his injury in this accident.

The Department of the Army, accordingly, would have no objection to the enactment of this bill if it should be amended to provide for an award to the claimant in an amount not exceeding $2,500.

If this bill is favorably considered by the Congress, it is recommended that the text of the bill be amended to read as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Louis J. Waline, of Lincoln, Nebraska, the sum of $2,500, in full settlement of all claims against the United States on account of personal injuries sustained by him on October 28, 1943, at the Lincoln Army Air Field, Lincoln, Nebraska, when he was struck by an airplane operated by a member of the Civil Air Patrol on business for the Army Air Forces: Provided, That no part of the amount appropriated in this Act shall be paid or delivered to or received by any subrogee: And provided further, That no part of the amount appropriated