Hon EARL C. MICHENER, JANUARY 20, 1948. House of Representatives, Washington, D. C. My DEAR Mr. CHAIRMAN: This is with response to your request for the views of this Department relative to the bill (H. R. 4130) for the relief of Dennis (Dionesio) Fernandez. The bill would provide that for the purposes of the Immigration and Naturalization laws, Dennis (Dionesio) Fernandez shall be considered to have been lawfully admitted to the United States for permanent residence. The files of the Immigration and Naturalization Service of this Department disclose that Dennis Fernandez, who is also known as Dionisio Fernandez Issamendi, is a native of Spain and 22 years of age. He entered the United States on July 13, 1944, at El Paso, Tex., under section 3 (2) of the Immigration Act of 1924, as an experienced sheep herder under contract with the Eastern Nevada Sheep Growers Association. He is unable to adjust his immigration status in the United States because the quota to which he is chargeable has been oversubscribed for a number of years to come. The files further show that the alien entered the United States Army on January 28, 1946 and was honorably discharged May 6, 1947. He claims to have become stateless by reason of his military service. His parents are still in Spain, but he stated that about 6 years prior to the time he came to the United States he went to Mexico where he has an uncle. At present he resides with another uncle in California and is attending the General Trade School in Los Angeles to learn the trade of upholstering. He has stated that he has $2,000 in the bank and that he receives $65 a month under the GI Bill of Rights while attending school. Whether the bill should be enacted presents a question of legislative policy concerning which the Department of Justice prefers not to make any recommendations. Attention is invited to the absence in the bill of the customary provision relating to the proper quota deduction to be made in the event the bill is enacted. Sincerely yours, 80TH CONGRESS HOUSE OF REPRESENTATIVES 2d Session JOHN C. NUNES { REPORT No. 1518 MARCH 5, 1948.-Committed to the Committee of the Whole House and ordered to be printed Mr. JENNINGS, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 4266] The Committee on the Judiciary, to whom was referred the bill (H. R. 4266) for the relief of John C. Nunes, having considered the same, report favorably thereon with amendments and recommend that the bill do pass. The amendments are as follows: Page 1, line 5, strike out "Virginia" and insert "John C.". Page 1, line 8, strike out "Miss" and insert "his minor daughter, Virginia". Amend title so as to read: A bill for the relief of John C. Nunes. The purpose of the proposed legislation is to pay the sum of $500 to John C. Nunes, of Taunton, Mass., in full settlement of all claims against the United States for personal injuries, medical and hospital expenses sustained by his minor daughter, Virginia Nunes, when she was struck by a Navy vehicle in Taunton, Mass., on September 21, 1944. STATEMENT OF FACTS The investigative report of the circumstances surrounding the incident upon which the subject legislation is based disclosed that, at about 8:05 a. m. on September 21, 1944, Richard L. Fulkerson, water tender, second class, United States Navy, was driving Navy station wagon No. 31935 southward along Somerset Avenue, North Dighton, Mass., on authorized official business of the Navy Department. The Navy vehicle was traveling at a speed stated by the driver and by Lt. Robert F. O'Neill, United States Naval Reserve, the only passenger, to have been between 30 and 35 miles per hour. The area was residential in character, and the road was straight, smooth, dry, and unobstructed. Upon approaching the vicinity of No. 33 Somerset Avenue, the home of the claimant, the occupants of the Navy vehicle saw, about 500 feet ahead, three girls standing on the left side of the road waiting for a school bus which was approaching from the opposite direction. One of the girls, Virginia Nunes, the claimant herein, suddenly left the group and ran across the road to speak to her brother, John Nunes, who was standing at the right side of the road in front of the children's home. As both the Navy vehicle and the school bus approached the immediate vicinity of the group of children, Virginia Nunes turned and started back across the road, coming into the path of the Navy station wagon. The driver of the Navy vehicle applied the brakes and swerved to the left to avoid hitting the child, but she was struck by the right rear fender and wheel of the vehicle, fracturing the tibia and fibula of her left leg. The law of Massachusetts requires a driver to reduce the speed of his vehicle to 10 miles per hour when passing a school bus which is stopped. In this case, it was stated by the Navy driver that the bus had not yet come to a stop at the time the accident occurred, therefore there appears to have been no violation of the pertinent Massachusetts statute. In view of the circumstances of the accident, however, with the approach of a school bus and the presence of children in and upon either side of the highway noted well in advance by the occupants of the Navy vehicle, it is the opinion of the Navy Department that the Navy driver was negligent in failing to reduce his speed and bring his car under complete control in anticipation of the further presence of children in the road ahead. There is no indication in the investigative report that the driver of the Navy vehicle reduced his speed until Miss Nunes turned and started to recross the road, although it is stated in the driver's report of the accident that he sounded his horn three times prior to striking the child. Fulkerson brought the station wagon to a stop in a distance of from 50 to 75 feet, picked up the injured child, and drove her immediately to the Mount Hope Hospital in North Dighton, Mass., where her injuries were treated. There is a possibility, however, that the child did exercise the care required of her and that she saw the approaching Navy vehicle, formed a reasonable but erroneous judgment that she could cross and recross the street in safety, and proceeded into the road relying upon the Navy driver to exercise the degree of care due to her, which was certainly to reduce his speed below 30 or 35 miles per hour. In the case of Pond v. Somes (302 Mass. 587, 20 N. E. (2d) 449 (1939)), the Supreme Judicial Court of Massachusetts relied upon similar reasoning to uphold a finding of a lack of contributory negligence on the part of an 11-year-old boy who alighted from a school bus and dashed in front of an overtaking car traveling 50 miles per hour. The Navy Department, in its report dated November 5, 1947, states: In view of the clear negligence on the part of the Navy driver and the considerable doubt which exists with regard to contributory negligence on the part of the claimant, and in view of the seriousness of the injury suffered by the claimant as result of the accident and the reasonableness of the amount of relief claimed, the Navy Department has no objection to the enactment of the bill (H. R. 4266) for the relief of Virginia Nunes. Therefore, your committee recommend favorable consideration to the bill as amended. NAVY DEPARTMENT, Hon. EARL C. MICHENER, OFFICE OF THE JUDGE ADVOCATE GENERAL, Chairman of the Committee on the Judiciary, House of Representatives. MY DEAR MR. CHAIRMAN: The bill (H. R. 4266) for the relief of Virginia Nunes, was referred by your committee to the Navy Department with a request for a report thereon. The purpose of the bill is to authorize and direct the Secretary of the Treasury to pay to Virginia Nunes the sum of $500 in full settlement of all claims against the United States for personal injuries and medical and hospital expenses sustained by Miss Nunes when she was struck by a Navy vehicle on September 21, 1944, in Taunton, Mass. The investigative report of the circumstances surrounding the incident upon which the subject legislation is based discloses that, at about 8:05 a. m. on September 21, 1944, Richard L. Fulkerson, water tender, second class, United States Navy, was driving Navy station wagon No. 31935 southward along Somerset Avenue, North Dighton, Mass., on authorized official business of the Navy Department. The Navy vehicle was traveling at a speed stated by the driver and by Lt. Robert F. O'Neill, United States Naval Reserve, the only passenger, to have been between 30 and 35 miles per hour. The area was residential in character, and the road was straight, smooth, dry, and unobstructed. Upon approaching the vicinity of No. 33 Somerset Avenue, the home of the claimant, the occupants of the Navy vehicle saw, about 500 feet ahead, three girls standing on the left side of the road waiting for a school bus which was approaching from the opposite direction. One of the girls, Virginia Nunes, the claimant herein, suddenly left the group and ran across the road to speak to her brother, John Nunes, who was standing at the right side of the road in front of the children's home. As both the Navy vehicle and the school bus approached the immediate vicinity of the group of children, Virginia Nunes turned and started back across the road, coming into the path of the Navy station wagon. The driver of the Navy vehicie applied the brakes and swerved to the left to avoid hitting the child, but she was struck by the right rear fender and wheel of the vehicle, fracturing the tibia and fibula of her left leg. There is no indication in the investigative report that the driver of the Navy vehicle reduced his speed until Miss Nunes turned and started to recross the road, although it is stated in the driver's report of the accident that he sounded his horn three times prior to striking the child. Fulkerson brought the station wagon to a stop in a distance of from 50 to 75 feet, picked up the injured child, and drove her immediately to the Mount Hope Hospital in North Dighton, Mass., where her injuries were treated. The extent of the injury suffered by Miss Nunes and the nature and effect of the treatment afforded are recorded in a series of letters written by the Mount Hope Hospital to Dr. Joseph L. Murphy, the attending physician, containing interpretations of progressive X-ray studies of the injury. Immediately upon Miss Nunes' admission to the hospital on September 21, 1944, an X-ray was taken and Dr. Murphy reduced the fracture of the tibia and fibula of the left leg, applying a plaster cast. A hospital report dated September 22, 1944, is quoted as follows: "Roentgen examination of the left leg shows an epiphyseal separation of the distal end of the tibia, with displacement of the ankle laterally. There is an oblique fracture of the diaphyseal end of the tibia, which extends from the middle of the epiphsyis up to the lateral aspect of the tibia for about 3 centimeters above the epiphysis, with the distal fragment also displaced laterally. In addition there is a slight ventromedial bowing of the fragments of both fractures. "Reexamination of the left leg and ankle, following manipulation, shows a successful reduction of the epiphyseal separation, and a marked improvement in the alinement of the fibular fragments, though the distal fragment is still displaced laterally for about 60 percent. "Reexamination of the left ankle, made through a plaster cast, shows the reduced position of the fragments to be maintained, as above." Miss Nunes was discharged from the hospital to her home on October 5, 1944, where she remained, with the cast applied, until October 16, 1944. She was then readmitted to the Mount Hope Hospital for X-rays and a change of cast. She remained in the hospital overnight and was again discharged to her home on October 17, 1944, at which time the following report was made: 'Reexamination of the left ankle with the cast removed, and comparison with the film taken September 21, shows the position of the tibial and fibular fragments to have been maintained, with a slight amount of callus already present. On November 18, 1944, X-rays were again made at the Mount Hope Hospital and the cast was removed from the injury at the office of the attending physician. The report of the examination at that time was as follows: "Reexamination of the left ankle, and comparison with the films taken October 16, 1944, shows the tibial and fibular fragments to have retained their positions, but there is no appreciable increase in the amount of callus. Marked atrophy of disuse is present in the tarsal bones, and in the ends of the tibia and fibula.' On August 19, 1947, Miss Virginia Nunes was examined by a Navy medical officer whose report of the child's present condition is quoted below: "Physical examination: The patient is a well-developed and well-nourished Portuguese adolescent in no apparent discomfort. Following a complete physical examination, emphasis was placed on the examination of the left leg. There was no deformity or disability noted, and the patient was asymptomatic. Orthopedic exercises revealed freedom of motion and good function of all joints. "A final X-ray on August 11, 1947, was taken and report is enclosed. [Reexamination of the left leg and ankle, and comparison with the film taken November 17, 1944, now shows complete union of the fragments of the fractured tibia and fibula, with restoration of normal alinement in both bones.] "Diagnosis: Epiphyseal separation of the distal end of tibia with an oblique fracture of the diaphyseal end of tibia and comminuted fracture of the fibula, distal end of the left leg. "Comment: The above diagnosis was substantiated by the records of the Mount Hope Hospital, in North Dighton, Mass., which were reviewed by me. Following the removal of the cast, the patient was incapacitated for a period of approximately 8 months and at that time the prognosis was poor. However, at the present time, there is complete recovery from the injury and the prognosis is excellent, with normal function and no deformity. "I feel that there should be no further interference with normal activity from the injury incurred. "W. E. BALDOCK, "Lieutenant (Junior Grade) Marine Corps, The complete recovery of Miss Nunes from her injury as indicated by the above-quoted report of the Navy medical officer is substantiated by a letter written on August 15, 1947, by Dr. J. L. Murphy to the Navy medical officer, quoted as follows: "On consulting my records I find that the last time I saw Virginia Nunes officially was December 9, 1944. At that time there was a slight limp but no other disability. However, I saw her again in March 1945 and could see no limp remaining and considered that the leg had entirely recovered. inspected the last X-ray and think I can claim a good result. "Yours truly, I have "J. L. MURPHY." Dr. Murphy's charge for professional services rendered to Miss Nunes totaled $49 and the bills submitted by the Mount Hope Hospital totaled $101, all medical and hospital expenses thus amounting to $150. Should the Congress conclude that liability rests with the United States Government under the circumstances of this case, an award of $500 as provided in the bill H. R. 4266 is considered not to be excessive as reimbursement for the medical and hospital expenses actually incurred plus a reasonable compensation for pain and suffering incident to the injury. The law of Massachusetts requires a driver to reduce the speed of his vehicle to 10 miles per hour when passing a school bus which is stopped. In this case, it was stated by the Navy driver that the bus had not yet come to a stop at the time the accident occurred, therefore there appears to have been no violation of the pertinent Massachusetts statute. In view of the circumstances of the accident, however, with the approach of a school bus and the presence of children in and upon either side of the highway noted well in advance by the occupants of the Navy vehicle, it is the opinion of the Navy Department that the Navy driver was negligent in failing to reduce his speed and bring his car under complete control in anticipation of the further presence of children in the road ahead. |