the same time William L. Owen, 11-year old son of Homer F. Owen, of Nashville, was riding his bicycle in a northerly direction along the east edge of the highway. At a point about 5 miles south of Nashville, the Army vehicle passed to the left of another southbound car and thereafter continued to its left of the center of the highway until it struck the bicycle and threw the boy to the pavement.

As a result of the accident the boy sustained serious personal injuries, resulting in a large degree of permanent disability. He was taken from the scene of the accident to the Protestant Hospital, Nashville, Tenn., where he was treated until August 2, 1943, when he was returned to his home. Upon arrival at the hospital he was attended by Dr. Paul E. Purks, of Nashville, who treated him for brain injury, shock, and fractures of the right arm and left and right legs. Because of the serious nature of the bone injuries, the case was referred to Dr. J. Jefferson Ashby, an orthopedic specialist. Dr. Ashby's findings are fully set forth in the War Department's report of March 23, 1944. The records show that medical and hospital expenses amounted to $1,436.70 and that the cost of future treatment would amount to between $250 and $350.

The War Department states that inasmuch as the evidence establishes that this child was seriously injured by reason of the negligence of the driver of an undentified Army vehicle, in that the Army driver was traveling at such a rapid rate of speed that, after passing another vehicle, he was unable to return to his proper side of the road or stop in time to avoid striking a bicycle lawfully proceeding in the opposite direction, and was not caused in whole or in part by any fault or negligence on the part of William L. Owen, it is the view of the War Department that he should be compensated in a reasonable amount for the damages sustained by him.

Therefore, your committee, after carefully considering the serious nature of the injuries sustained, which have resulted in a large degree of permanent disability, the extensive medical and hospital expenses incurred, and the opinion of an orthopedic surgeon that another surgical operation is required, feels that the sum of $6,800 ($5,000 for injuries; $1,800 for medical expenses), should be paid to the legal guardian of William L. Owen.

Your committee recommends favorable consideration to the proposed legislation, as amended. Appended hereto is the report of the War Department, together with other pertinent evidence.

War DepartMENT, Washington, March 23, 1944.

Hon. DAN R. McGEHEE,

Chairman, Committee on Claims,

House of Representatives.

DEAR MR. MCGEHEE: The War Department is opposed to the enactment of H. R. 4226, Seventy-eighth Congress, in its present form. This bill would authorize and direct the Secretary of the Treasury to pay "the sum of $5,000 to H. F. Owen, of Nashville, Tenn., in full settlement of all claims against the United States for personal injuries sustained by his 11-year old son as a result of being hit by a United States Army jeep driven by a soldier while on duty in maneuvers of the Second Army on May 1, 1943." The Department, however, would not oppose the enactment of the bill if it should be so amended as to authorize the payment of $5,000 to the legal guardian of William Lawrence Owen.

On May 1, 1943, at about 6:30 p. m., an unidentified Army reconnaissance car, operated by an enlisted man, upon a mission the nature of which is not known, was proceeding south on the Nolensville Pike near Nashville, Tenn., at an undetermined but rapid rate of speed. At the same time, William Lawrence Owen, 11-year-old son of Homer F. Owen, 469 Radnor Street, Nashville, was riding his bicycle in a northerly direction along the east edge of the highway. At a point about 5 miles south of Nashville, the Army vehicle passed to the left of another southbound car and thereafter continued to its left of the center of the highway until it struck the bicycle and threw the boy to the pavement. As a result of the accident William Lawrence Owen sustained serious personal injuries, resulting in a large degree of permanent disability. He was taken from the scene of the accident to the Protestant Hospital, Nashville, Tenn., where he was treated until August 2, 1943, when he was returned to his home.

On July 27, 1943, William Lawrence Owen testified before the investigating officer, Maj. I. R. Collard, Inspector General's Department, in part as follows: "Q. Will you tell me in your own words just what happened?-A. I was going towards the jeep and it was coming towards me. I was going up the hill. He was going out towards Nolensville and I was coming towards town. I was up at the filling station to get air in my tire.

"Q. You saw the jeep quite a ways up coming towards you?—A. When I saw him it seemed like he was right on me. He came around a car. There was a car in front of him and he was passing it. I was going around one that was parked at the side of the road. Instead of coming back after he passed the car, he swung across to my side of the road and hit me. He knocked me all the way up to the sidewalk. When he hit me it seemed like I saw him and the next minute I didn't.

"Q. He came around a car and instead of swinging back into his lane of traffic he came right on across to your side of the road and hit you? A. Yes sir. "Q. Did he hit you head on?-A. I was on a bicycle and he hit me head on.

"Q. Were you on your own side of the road at all times even when the jeep hit you? A. Yes; I was.

"Q. He was coming so fast that you had no chance to get out of his way?—A. That's right. I was coming out from behind the car and he hit me. I wasn't going fast. I just started riding my bike from the filling station."

Joseph Henry Huber, Elgin Street, Nashville, Tenn., who witnessed the accident, testified before the investigating officer on the same date in part as follows:

"Q. Continue please.-A. It was somewhere around 6:30 or 7 in the evening. I don't remember the exact time. Mr. Roberson kind of hollered with a little excitement and I looked up and saw the kid fall to the ground and the bicycle after him. I didn't see the full accident but I saw him fall and saw the jeep so that I know that it was the jeep that hit him. The driver of the jeep was wearing one of these skull helmets. He kind of looked over and saw us looking at him but he speeded up and went away. There was no way of getting the identification of the jeep.

"Q. How fast would you say the driver was going at the time of the accident?— A. Roughly, around 40 or 45.

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"Q. The vehicle driver saw you looking at him and then speeded up. Is that correct?-A. He looked right at us and just speeded right on past. He knew he hit the boy."

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On July 27, 1943, Charles E. Roberson, 932 Fourth Ave, South Nashville, who also witnessed the accident, testified as follows before the investigating officer: "Q. * Would you tell me in your own words just what you witnessed there?-A. This jeep was traveling about 45 or 50 miles per hour and when I noticed the boy he was coming north on the pike toward Nashville and I really couldn't say whether he crossed the street or whether he was on the right hand side. It is my opinion that he did cross the street. The right wheel of the jeep struck the bicycle about middle ways and threw the boy off. When I got to him about 2 or 3 minutes later, there was another jeep coming the other way with two soldiers in it and they got out and helped the boy.

"Q. Would you say that the driver of the jeep definitely knew that he had struck the boy?-A. No doubt whatsoever.

"Q. Did the driver of the vehicle stop after hitting the boy?-A. No, sir. H. Repts., 78-2, vol. 3-83

"Q. After striking the boy, would you say that he increased his speed in an endeavor to get away?-A. I couldn't truthfully say that he increased it any but it was about the same speed.

"Q. He never slowed down at all?-A. No, sir. He didn't check his speed.

"Q. Mr. Roberson, do you feel that if the vehicle had been traveling at the lawful rate of speed that this accident would not have happened?-A. Yes, sir. "Q. You feel then that the vehicle was out of control from the standpoint of making a quick stop?---A. Yes, sir."

Mrs. Eva Bowden, 517 Timmons Street, Nashville, Tenn., the driver of the automobile which was passed by the Army behicle immediately prior to the accident, made the following statement on July 10, 1943:

"About 6:30 o'clock on the evening of May 1, 1943, I was driving south on the Nolensville Pike, when an Army jeep passed me at a rapid rate of speed and very reckless. The man in the jeep was wearing a turtle-shell helmet. About 200 yards from where he passed me, he hit a small boy on a bicycle. The boy was riding on his side of the pike. I saw the boy when he was thrown over on the sidewalk. I stopped my car and went for help. The jeep did not stop but speeded up."

A member of the Corps of Military Police was assigned to investigate the accident, but after a careful investigation he was unable to identify either the Army vehicle or its driver.

Second Lt. Morris Goldfarb, claims officer of the Fourth Service Command Rents and Claims Board, Lebanon, Tenn., also investigated the accident and his report dated August 25, 1943, contains the following statement:

"From all the evidence gathered, it is conclusive that the injuries caused to claimant's son was directly due to the negligence of the unknown driver of the Government Army jeep, for which injuries the Government is entirely responsible, and should be made to answer in damages."

After William Lawrence Owen was taken to the Protestant Hospital in Nashville he was attended by Dr. Paul E. Purks, of Nashville, who treated him for brain injury, shock, and fractures of the right arm and left and right legs. Because of the serious nature of the bone injuries, the case was referred to Dr. J. Jefferson Ashby, of Nashville, an orthopedic specialist, who made the following statement on August 13, 1943:

"On arrival at the hospital, he [William Lawrence Owen] was unconscious, and was bleeding profusely from a large, compound fracture wound just above the right knee. His blood pressure was low, and his pulse rapid and weak.

"Blood plasma was given immediately, and a tourniquet was applied to the right thigh. As soon as he could be moved, he was carried from the emergency room to the operating room where the blood plasma was continued. He was given other anesthesia and a thorough debridement of the wounds of the right thigh was done and bleeding stopped.

"There were two large wounds. One, on the medial side of the right thigh just above the knee, which communicated with the site of the badly comminuted fracture of the lower third of the right femur. A large part of the femur for a distance from about 2 inches above the knee joint to 8 inches above the wound had been lost out of the wound at the time of the accident. Two or three long, narrow pieces of bone, which were entirely without soft tissue attachment, were removed. There was one narrow fragment, attached to the lateral periosteum, remaining of the shaft of the femur, otherwise, a complete shaft was lost from about 2 inches above the knee joint, to about 8 inches above the knee. There was a fracture separating the femoral condyles. The other large wound on the lateral side of the lower end of the femur was found to communicate with the wound first described, being separated by about an inch of skin. The communication was beneath this bridge of skin. This wound was mostly subcutaneous, and there was a subcutaneous pocket about as large as a man's hand, communicating with the laceration of the skin which was about 4 or 5 inches long.

"This wound was debrided at the same time the other wound was treated. Fifteen grams of sulfanilamide crystals was implanted in the two wounds, and they were packed loosely with vaseline gauze. The wounds were then dressed. Adhesive plaster, for the application of traction, was then applied to both legs from the knee down.

"There was a fracture dislocation of the lower femoral epiphysis of the left femur, and a fracture of the right radius, also. These fractures were manipulated into position.

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"The fractures of both legs were treated with adhesive traction. The fracture dislocation of the epiphysis was almost perfectly reduced and healed with no deformity or loss of motion in the knee. The length of the right leg was maintained as well as possible by traction, but there is about 1 inch of shortening. New bone was formed along the periosteum, and along the slender piece of bone which remained in the gap between the large fragments.

"The fracture which separated the condyles of the femur, healed with the condyles in good position, but with considerable new bone formed in the intercondylar notch. There is a tilting backward of the short lower fragment of the right femur of about 45°. There is some upward angulation of the long proximal fragment. Across the gap in the femur has grown new bone which possibly may develop to bear weight. The deeper wound which communicated with the fracture site healed readily and without infection. There was some sloughing of the skin which was undermined by the lateral wound. This has almost been covered with epithelium. No gross infection developed in this wound either.

"This boy has been wearing a spica plaster cast extending from about the pelvis to the toes, since July 13, 1943, at which time it seemed that traction was no longer necessary.

"The diagnosis was: 1. Brain injury. 2. Compound comminuted fracture involving the lower third of the right femur with almost complete loss of about 4 inches of the lower shaft of the femur and separation of the condyles of the femur. 3. Large laceration on the outer side of the right thigh just above the knee. 4. Fracture dislocation of the lower femoral epiphysis of the left femur. 5. Fracture of the shaft of the right radius. 6. Shock from loss of blood.

"It is my opinion that there will be only mild disability from the injury of the left femur, except that which may come from interference in growth of the length of the left femur. This may occur. The brain injury may give trouble later. The fracture of the right radius will produce no permanent disability. The compound, comminuted fracture of the right femur was very serious, and will result in complete loss of use of the right lower extremity on its present condition. "There will have to be an operation to straighten out the 45° backward rotation of the lower fragment, and it may be necessary to strengthen the new bone which had formed in the 4-inch defect in the shaft of the femur by bone graft. This will require hospitalization of from 2 to 3 months. There will be, I think, considerable loss of motion in the right knee due to the facture separating the condyles of the right femur, and due to the new bone formation in the intercondylar notch and the long immobilization necessary for the treatment of the fractured femur. The end result to be obtained in the right femur, even with an operation, is problematical and unpromising, so far as bringing the function back to normal.

"This boy remained in the hospital for treatment from May 1 to August 2, 1943. "The unsatisfactory position of the fragments of the femur is due to muscle pull. If there had not been these original wounds about the knee, it would not have been possible to have put skeletal traction through the lower fragment and to have controlled the position of fragments. It was necessary to keep a strong pull in order to keep the extremity from shortening between probably 3 and 4 inches. The position of the fragments had to be allowed in order to keep the length of the extremity to a minimum."

The records of the War Department show that medical and hospital expenses for William Lawrence Owen amounted to $1,436.70, which may be itemized as follows:

On August 13, 1943, Dr. J. Jefferson Ashby estimated that the cost of future treatment of William Lawrence Owen would amount to between $250 and $350. Homer F. Owen filed a claim with the War Department on August 17, 1943, in the amount of $10,020 ($10,000 for the personal injuries sustained by his son; and $20 for the damage to the bicycle). The item of the claim for property damage was withdrawn on August 24, 1943. No action has been taken by the Department on this claim in view of the fact that Mr. Owen has stated that he is unwilling to accept the sum of $1,000 in full satisfaction and final settlement of his claim

had been lost out of the wound at the time of the accident. Two or three long, narrow pieces of bone, which were entirely without soft tissue attachment, were removed. There was one narrow fragment, attached to the lateral periosteum, remaining of the shaft of the femur, otherwise, a complete shaft was lost from about 2 inches above the knee joint, to about 8 inches above the knee. There was a fracture separating the femoral condyles. The other large wound on the lateral side of the lower end of the femur was found to communicate with the wound first described, being separated by about an inch of skin. The communication was beneath this bridge of skin. This wound was mostly subcutaneous, and there was a subcutaneous pocket about as large as a man's hand, communicating with the laceration of the skin which was about 4 or 5 inches long."

Because of the seriousness of the leg injury, Dr. Ashby recommended a surgical operation on the boy as soon as the wounds healed for the purpose of adjusting the bones and he estimated that the cost of such an operation would be approximately $350. On August 17, 1943, Mr. H. F. Owen filed a claim with the War Department for the personal injury of his son in the amount of $10,000. No action has been taken on this claim for the reason that there is no statute or appropriation available to the War Department under which the claim may be settled.

In this connection attention is invited to the fact that the act of July 3, 1943 (Public Law 112, 78th Cong.), authorizes the War Department to ascertain, adjust, determine, settle, and pay a claim in an amount not in excess of $500, or in time of war not in excess of $1,000 for property damage and for reasonable medical and hospital expenses incurred as the result of personal injury caused by military personnel or civilian employees of the War Department while acting within the scope of their employment, or otherwise incident to noncombat activities of the War Department or of the Army. However, a claim for pain and suffering, physical disability, or loss in earnings, may not be settled adminis tratively by the War Department under the act of July 3, 1943, but may be the subject of a private relief bill in Congress.

Very sincerely yours,

THOMAS H. GREEN,

Brigadier General, United States Army,

Acting The Judge Advocate General.

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