had a salvage value of only $50. Mr. Deiman received a compound fracture of the left humerus, radius and ulna, gas grangrene of the left upper extremity, multiple perforations in small bowel with peritonitis, and resection of loop of small bowel. He died on August 2, 1944, 4 days after the accident, as a result of the injuries which he received. Mrs. Jean Dieman suffered minor injuries, both soldiers were injured, and the Government vehicle was damaged in the amount of $557.94. None of Mr. Deiman's daughters was injured in the accident. The records of the War Department show that by reason of the accident the following expenses were incurred:

Difference in value of Lincoln Zephyr automobile before and after the accident..

Dr. M. W. Alberts, St. Paul, Minn.

Ancker Hospital, St. Paul, Minn__

Cemetery office, Diocese of St. Paul, St. Paul, Minn
Willwerscheid Mortuary, St. Paul, Minn..

Total__

$175.00

150. 00

52.50

122.00

251.00

750. 05

On December 1, 1944, Mrs. Jean M. Deiman, widow of John Deiman, filed a claim with the War Department in the amount of $10,750 ($750 for property damage and $10,000 for personal injury). It is apparent that the $10,000 item of the claim is for damages on account of the death of Mr. Deiman and that the $750 item is for the expense actually incurred as a result of his injury and death.

On review in the War Department the claim was disapproved on February 17, 1945, on the ground that the evidence of record failed to establish that the accident and resulting death and property damage were caused by military personnel acting within the scope of their employment; and because any finding that the collision was caused by the sole negligence of the Army driver would be speculative, such negligence not being established by a preponderance of the evidence. On April 9, 1945, Mrs. Deiman, through her attorney, Fred A. Kueppers, 1112-15 Commerce Building, St. Paul, Minn., appealed to the Secretary of War from the action taken in disapproving her claim. The claim was thereupon carfeully reconsidered in the War Department and on May 11, 1945, the Secretary of War sustained the previous action of disapproval and denied the appeal therefrom.

The records of the War Department show that at the time of his death Mr. Deiman was 40 years of age, that he was employed as a meat inspector by Armour & Co., in South St. Paul, Minn., and that he left surviving his widow, Mrs. Jean M. Deiman, 37 years of age, and four minor daughters, as follows:

Rose Marie Deiman, 15 years of age; Leona Deiman, 13 years of age; Barbara Deiman, 9 years of age; Agnes Deiman, 7 years of age.

On November 30, 1944, the claimant's attorney advised the War Department as follows:

"The family had lived in a small house at 617 Cleveland Avenue, St. Paul, Minn., which Mr. Deiman was purchasing under contract. Both the wife and children were entirely dependent upon Mr. Deiman for their support and maintenance. Mrs. Deiman was not employed outside the home and all of the children attend school. Only the oldest child, Rose Marie, had any income, and that was only a nominal income which she received through part-time employment during the summer months when she was not attending school. As the result of the death of Mr. Deiman it has become necessary for his widow to sell the small equity in the Cleveland Avenue home and to move herself and family to California to reside with her parents. Mr. Deiman had been employed by Armour & Co. for a period of 22 years and had worked at the Armour plant at South St. Paul. At the time of his death he was employed as a meat inspector. His gross weekly earnings during the summer months were approximately $43, but during the winter months when he worked longer hours, his earnings were approximately $68 per week. All of his earnings, which were his only source of income, were devoted to the care and maintenance of the family."

Mrs. Deiman incurred no expenses as the result of the minor personal injuries which she sustained in this accident, and she has made no claim for damages on account of her injury.

After a careful reconsideration of the entire record in this case, it is the view of the War Department that the evidence fails to establish whether the accident was caused by the sole negligence of either of the drivers involved or whether it was caused by the combined negligence of both. The mere happening of the accident does not place the responsibility therefor upon the United States. It must appear from a fair preponderance of the credible evidence that the driver of the

Government vehicle was negligent and that such negligence was the proximate cause of the accident before the Government may properly be held liable in damages. A fact cannot be regarded as proved if the evidence merely gives rise to conjecture or suspicion of its existence, and when there is nothing in the record upon which to base a finding of liability except conjecture it is not sufficient. In every case some credible description of how the accident happened must appear. It may be proved by circumstantial evidence, but the circumstances must compe the conclusion that the party sought to be charged was negligent by showing a probaility that the accident would not otherwise have happened. Mr. Deiman might have been responsible for one or more causes of the accident and not for others, and it is equally probable that it resulted from any of them. There is nothing to show from which vehicle or from what wheel the all important skid mark came. If the skid mark came from a right wheel of Mr. Deiman's Lincoln Zephyr, it would indicate that the greater portion of his automobile was to its left of the center of the highway. In such event, since the damage to the Government vehicle was exclusively on its left side, it would be reasonable to infer that the Army driver was on his proper side of the road, that he was operating the Government vehicle with due care and that he failed to see the Deiman car because it pulled out suddenly from behind the vehicle ahead of it. Even if it could be assumed that the skid mark was made by the left tires of Mr. Deiman's car, it could not be concluded that no part of the body extended to the left of the center of the street. If the skid mark came from any wheel of the Government vehicle, the latter was partly to its left of the center of the road. However, there is no evidence to establish that the skid mark did come from the Government vehicle and, in view of the Army driver's statement that he was unaware of any danger prior to the impact, it is not likely that it did. The relative position of the vehicles after the accident is not helpful because each traveled so far from the point of impact that it might easily have crossed to the opposite side of the highway. If any inference were to be drawn it would be unfavorable to the claimant, since the Deiman car was partly to its left of the center of the highway when it came to a rest. There is likewise no indication that either vehicle was traveling at an excessive speed.

The cause of the accident is entirely in the realm of conjecture, and such circumstantial evidence as there is, is as consistent with the theory that the Army driver was not negligent as it is with the theory that he was. The War Department is, accordingly, of the opinion that the evidence fails to establish that the accident was caused by the negligence of the Army driver. For this reason there is no basis for the granting of an award to Mrs. Deiman for damages sustained on account of the injury and death of her husband and the destruction of his automobile. The War Department, therefore, while deeply regretting this unfortunate accident, is constrained to recommend that this bill be not favorably considered.

The fiscal effect of the bill is manifest.

The Bureau of the Budget advises that there is no objection to the submission of this report.

Sincerely yours,

ROBERT P. PATTERSON,
Secretary of War.

Rose Marie Cimmarusti, being first duly sworn upon oath, deposes and says that she is a daughter of John Deiman, now deceased, and of Jean M. Deiman, his wife. That she was born on September 17, 1928, and is now 19 years of age. That John Deiman, father of affiant, died on August 2, 1944, as the result of the injuries sustained by him in an automobile accident on July 30, 1944. That said accident involved a collision between an automobile owned and operated by said John Deiman in a westerly direction on West Seventh Street in the city of St. Paul, Minn., at a point approximately 120 feet west of the intersection of said street with Otto Avenue, and an Army jeep which was being driven in an easterly direction on said West Seventh Street at and near the point of said collision. That at the time of the happening of said accident affiant was riding as a passenger in the automobile of said John Deiman. This affiant at said time was riding in the front seat of said automobile to the right of her sister, Leona Deiman, who was sitting next to and to the right of her father, John Deiman, who was driving said car.

That just prior to the happening of said accident said John Deiman was driving his automobile in a westerly direction on said West Seventh Street at a speed which did not exceed 30 miles per hour. That he was driving his said automobile an appreciable distance to the right of the center line of said West Seventh Street. That as he was proceeding along said West Seventh Street he overtook another automobile which was proceeding in a westerly direction on said street and undertook to pass said automobile on its left side. That in so doing said John Deiman made a gradual swing to his left so that his automobile was straddling the most northerly of the west-bound streetcar rails located on said street. That at no time did either of the left wheels nor any other part or portion of the car of said John Deiman e tend to the left or southerly side of the inner rail of the westbound streetcar tracks. That at no time did the automobile of said John Deiman nor any part thereof extend to the left or southerly side of the center line of said West Seventh Street. That at all times up to and including the time of the happening of said collision and accident, the automobile of said John Deiman was wholly on its own right side or the northerly half of said West Seventh Street. Further affiant saith not.

ROSEL MARIE CIMMARUSTI.

Subscribed and sworn to before me this 8th day of March, 1948. [SEAL]

EARL J. KING, Notary Public, Los Angeles County, Calif.

My commission expires July 4, 1950.

O

80TH CONGRESS HOUSE OF REPRESENTATIVES 2d Session

JOE PARRY, A MINOR

{

REPORT No. 1638

APRIL 1, 1948.-Committed to the Committee of the Whole House and ordered to be printed

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

following

REPORT

[To accompany H. R. 3189]

The Committee on the Judiciary, to whom was referred the bill (H. R. 3189) for the relief of Joe Parry, a minor, having considered the same, report favorably thereon with amendments and recommend that the bill, as amended, do pass.

The amendments are as follows:

Page 1, line 5, after the word "to", strike out the remainder of the bill and insert in lieu thereof:

the legal guardian of Joe Parry, a minor, of El Paso, Texas, the sum of $10,180, in full settlement of all claims against the United States on account of the personal injuries and property damages sustained by the said Joe Parry in an accident involving an Army vehicle which occurred in El Paso, Texas, on October 6, 1944, and the medical, hospital, and incidental expenses incurred in connection with his treatment: Provided, That no part of the amount appropriated in this Act shall be paid to 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 attorney 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 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.

Amend title so as to read:

A bill for the relief of Joe Parry, a minor.

The purpose of the proposed legislation is to pay the sum of $10,180 to the legal guardian of Joe Parry, a minor, of El Paso, Tex., in full settlement of all claims against the United States for personal injuries, medical, hospital, and incidental expenses, and property damages sustained as a result of an accident involving a United States Army vehicle in El Paso, Tex., on October 6, 1944.

H. Repts., 80-2, vol. 2- -94