NAVY DEPARTMENT, OFFICE OF. THE JUDGE ADVOCATE GENERAL, The honorable the ATTORNEY GENERAL, Washington, D. C. My DEAR Mr. ATTORNEY GENERAL: The bill S. 1235, for the relief of Merchants Motor Freight, was referred by the Department of Justice to the Navy Department with request for comments on the merits thereof to be submitted to the Committee on the Judiciary, United Stats Senate. The purpose of this bill is to authorize and direct the Secretary of the Treasury to pay to Merchants Motor Freight, Inc., of St. Paul, Minn., the sum of $728.98, in full satisfaction of its claim against the United States (1) for reimbursement of amounts which it was required to expend for repairs to its open-top trailer as a result of damage to such trailer which occurred on June 30, 1943, when it undertook, at the insistence of a United States Navy officer acting in his official capacity, to transport certain heavy machinery for a war contractor, after it had protested that such machinery was too heavy for such trailer, (2) for reimbursement of expenses incurred in effecting the removal of such machinery from its trailer to another carrier, and (3) for compensation for the loss of use of such trailer. The records of the Navy Department reveal that in April 1943, the John R. Kovar Manufacturing Co., Inc., of Anoka, Minn., entered into a contract with. the National Iron Co., East St. Louis, Ill., to purchase from the latter company a large forging machine known as an upsetter, the contract providing that the Kovar Co. would furnish transportation for the machine from the plant of National Iron to its own factory in Anoka, Minn. Kovar entered into an agreement with Merchants Motor Freight, Inc., of St. Paul, Minn., claimant herein, to transport the machine. The Navy Department was not a party to the contract or transportation agreement. Merchants Motor Freight, Inc., is a common carrier in interstate commerce and operates under duly published tariffs. Kovar had a war contract for the Navy, and the Navy's only contact with the situation in question was through the office of the naval adviser, industry cooperation division, St. Louis, Mo., which was acting to expedite the location and delivery of necessary equipment to the contractor for completion of urgently needed work. It appears from the record that Merchants Motor Freight, Inc., agreed to undertake the transportation of the forging machine for the Kovar Manufacturing Co. Flood conditions, inability of the carrier to provide an open-top trailer, and a loading mishap at the National Iron Co. delayed the actual loading of the machine on to Merchants Motor Freight equipment until June 30, 1943. The driver for Merchants Motor Freight gave the National Iron Co. a receipt for the machine and proceeded to his company's terminal in St. Louis, Mo. Upon reaching the terminal, it was observed that the trailer bearing the machine was collapsing under the 14,000-pound load. Merchants Motor Freight, Inc., hired the Daniel Hamm Drayage Co. to remove the forging machine from its trailer and transfer it to a railroad car for delivery to the Kovar Manuafcturing Co. by rail freight. Merchants Motor Freight, Inc., paid the Daniel Hamm Drayage Co. $114.96 for this service. It is contended by Merchants Motor Freight, Inc., that their representatives protested, before the machine was loaded, that it was too heavy for their equipment. The claimant further states that it was ordered by the naval adviser, St. Louis, Mo., to handle the forging machine. The naval adviser has denied this assertion. In addition to the $114.96 drayage charge mentioned above, the carrier claims damages in the amount of $394.02 for repairs to its trailer and $220 for loss of use of that equipment. The Navy was not a party to the agreement under which Merchants Motor Freight, Inc., undertook to transport the forging machine to the Kovar Manufacturing Co. plant at Anoka, Minn., and is in no way responsible for the damage to the trailer owned by the carrier or for the drayage charges incurred by that company. At the time the damage occurred, the forging machine was in the complete control and possession of Merchants Motor Freight, Inc., a common carrier, and a receipt for the shipment had been given to the National Iron Co. In view of the above facts and circumstances, it is the opinion of the Navy Department that there is no liability on the part of the United States and that S. 1235 should not be enacted. The Navy Department has been advised by the Bureau of the Budget that there is no objection to the submission of this report to the Congress. Respectfully yours, 80TH CONGRESS HOUSE OF REPRESENTATIVES 2d Session { REPORT No. 1624 EDWARD TRAPIER ROGERS APRIL 1, 1948.-Committed to the Committee of the Whole House and ordered to be printed Mr. REEVES, from the Committee on the Judiciary, submitted the following REPORT [To accompany S. 1307] The Committee on the Judiciary, to whom was referred the bill (S. 1307) for the relief of Edward Trapier Rogers, 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. 952, Eightieth Congress, which is appended hereto and made a part of this report. Your committee concurs in the recommendation of the Senate [S. Rept. No. 952, 80th Cong., 1st sess.] STATEMENT The proposed beneficiary of this bill has been permanently and most grievously injured while in the course of his employment at a Government arsenal. The very nature of the case arouses sympathy; and the maximum which could be paid to this man under the Employees' Compensation Act is woefully inadequate even to care for a person who has been so seriously disabled, to say nothing of compensating him for his injuries. It is true that this man has received, is receiving, and will continue to receive benefits under the Employees' Compensation Act. But those benefits are not enough. There is no allegation of any fault on the part of the Federal Government; no implication of any negligence on the part of the Government or any agent of the Government. This is not a case in which the injured person would be able to sue in tort if the Government were a private person. The Secretary of the Army has reported that the enactment of this bill, awarding compensation for the personal injuries sustained, in addition to the compensation provided by the Federal Employees' Compensation Act "would have the effect of granting special benefits to him which are denied to Government employees in other cases where the facts are similar, and there appear to be no facts or circumstances present in this case which would warrant singling out this claimant for preferential treatment over other claimants in similar cases.' That is simply a pro forma statement. The facts in this case are not normal, are not routine, and certainly justify special consideration of the case by the Congress. As the Secretary of War points out în his report: "The Federal Employees' Compensation Act, as amended, * * * does not provide for indemnity for physical impairment as such, but only compensates for loss of wage earning capacity caused by physical disability." [Italics supplied.] There is no reason why the Congress may not sustain the theory and the principle of the Federal Employees' Compensation Act, for general application, and still make special provision, on a moral or equitable basis, for an individual case or for individual cases. The power of the Congress to bestow boons, to give largess, and to grant special relief has been often asserted, seldom challenged, and always upheld. This is a proper case for the exercise of this "compassionate power." Attached hereto are reports which have been received with reference to this bill. DEPARTMENT OF JUSTICE, Hon. ALEXANDER WILEY, Chairman, Committee on the Judiciary, United States Senate, Washington, D. C. MY DEAR SENATOR: This is in response to your request for a report on the bill (S. 1307) for the relief of Edward Trapier Rogers. The bill would provide for the payment of the sum of $25,000 to Edward Trapier Rogers, of Raleigh, N. C., in full settlement of his claim against the United States for compensation, in addition to that provided by other provisions of law, for personal injuries sustained by him as a result of an explosion which occurred during the course of an experiment which he was performing as a civilian employee of the War Department at Edegwood Arsenal, Md., on October 31, 1916. At your request a report was obtained from the War Department concerning this incident. That report, which is enclosed, sets out all of the available information concerning the accident. Included in this report is a letter from the Director of the Bureau of Employees' Compensation, Federal Security Agency, dated June 19, 1947, in which it is stated that compensation has been paid to Mr. Rogers continuously since the date of the accident and that he is presently receiv ing $58.33 each half month. The total amount of compensation paid through May 31, 1947, is $591.08 plus the sum of $1,161 which has been paid for private medical expenses. The latter points out that the maximum amount of compensation that may be received in any one case is $116.66 per month, but that in a case such as this where an employee has lost both hands the Bureau may award an additional sum of not more than $50 a month if it should find that the service of an attendant is necessary. The Bureau states that this feature will be considered when Mr. Rogers is discharged from the hospital. It is the view of the War Department that the Federal Employees' Compensation Act, as amended, should be applied uniformly to all Government employees and that the enactment of the proposed bill would have the effect of granting special benefits to Mr. Rogers, which are denied to Government employees in other cases where the facts are similar. It is further stated that there appear to be no facts or circumstances present in this case which would warrant singling out this claimant for preferential treatment over other claimants in similar cases and that the War Department therefore is constrained to recommend that the proposed legislation be not favorably considered. The Department of Justice concurs in this recommendation. The Director of the Bureau of the Budget has advised that there is no objection to the submission of this report. Sincerely yours, DOUGLAS W. MCGREGOR, The honorable the ATTORNEY GENERAL, WAR DEPARTMENT, Washington, D. C., July 17, 1947. Washington, D. C. DEAR MR. ATTORNEY GENERAL: Reference is made to your letter with which you enclosed a copy of S. 1307, Eightieth Congress, a bill for the relief of Edward Trapier Rogers. 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 the War Department on S. 1307. 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 Edward Trapier Rogers, of Raleigh, North Carolina, the sum of $25,000, in full satisfaction of his claim against the United States for compensation, in addition to that provided by other provisions of law for personal injuries sustained by him as a result of an explosion which occurred while he was mixing certain ingredients in the course of an experiment which he was performing as a civilian employee of the War Department at Edgewood Arsenal, Maryland, on October 31, 1946.” On the morning of October 31, 1946, Mr. Edward Trapier Rogers, a chemical engineer employed by the Chemical Corps Technical Command at Edgewood Arsenal, Md., was engaged in a chemical experiment, the object of which was to develop a colored smoke shell for the 4.2 chemical mortar. He had been working on this project for some time, assisted by Mrs. Nellie H. Butler. The mixture which was being prepared had previously been made by Mr. Rogers and used experimentally in a number of hand grenades and had been approved by the Bureau of Mines. The work was being done in a small open-frame building with corrugated metal sides, in which was located a laboratory "dough" mixer with an explosion-proof electric motor. The motor could be controlled by a switch located outside the building and there was standing instructions that no one was to be in the building while the motor was running. When the motor was started Mrs. Butler left the building but Mr. Rogers stayed at the machine to add another ingredient. He estimates that he was there about 3 minutes when the mixture exploded. It has been found impossible to determine the cause of the explosion. The Director of the Bureau of Employees' Compensation, Federal Security Agency, in a letter to the War Department, dated June 19, 1947, concerning the injuries sustained by Mr. Rogers and the special relief proposed for his benefit by S. 1307, stated: "It appears from the Bureau's (Bureau of Employees' Compensation created by Federal Security Agency order No. 58 dated July 16, 1946, 11 F. R. 7943) file in this case that Edward T. Rogers, while employed as a chemical engineer by the War Department sustained injury on October 31, 1946, when an explosion occurred at Edgewood Arsenal. This occurrence resulted in third degree burns of the face and minor lacerations of the scalp, slight laceration of the right eye, traumatic bilateral rupture of the tympanic membrane, crushed and almost complete amputation of right and left arms, complete laceration of the scrotum exposing crushed right testicle and partly crushed left testicle, with a metal plate about 4 inches square embedded between the testicles, compound comminuted fractures of the right and left femur, penetrating wound close to right foramen avale, which had a plate measuring about 4 inches square embedded deeply into thigh next to right femur, penetrating wound of the proximal medial surface of the left thigh, multiple abrasions and contusions of the entire body, crush syndrome, shock, and hemorrhage. "Compensation has been paid to Mr. Rogers continuously since the date of the accident (less 3 days waiting period as required by law) and he is presently receiving the sum of $58.33 each half month. The maximum amount of compensation that may be received in any one case is $116.66 per month. In a case such as this, where an employee has lost both hands the Bureau may award 'an additional sum of not more than $50 a month' if it should find that the service of an attendant is necessary. The Bureau will consider this feature when he is discharged from the * * * Hospital * * where he is presently undergoing treatment. The employee may possibly obtain aid from the Vocational Rehabilitation Service in connection with any course of training which he |