FRANK MALLES, JR. JUNE 23, 1939.-Committed to the Committee of the Whole House and ordered to be printed Mr. POAGE, from the Committee on Claims, submitted the following REPORT [To accompany H. R. 2250] The Committee on Claims, to whom was referred the bill (H. R. 2250), for the relief of Frank Malles, Jr., having considered the same, report favorably thereon with amendments and recommend that the bill, as amended, do pass. The amendments are as follows: Line 5, after the word "to" insert "the legal guardian of". Line 6, strike out the sign and figures "$5,000" and insert in lieu thereof "$2,500". The purpose of the proposed legislation is to pay to the legal guardian of Frank Malles, Jr., the sum of $2,500 in full settlement of all claims against the United States on account of injuries received by Frank Malles, Jr., on March 7, 1935, when struck by a United States mail truck. STATEMENT OF FACTS According to the report of the Post Office Department, on March 7, 1935, a mail truck was east-bound at a point in the middle of a block when Frank Malles, Jr., ran across the street from north to south, stopping with his hands on the left door of his father's parked car, and that thereafter the boy stepped back a short distance into the street. They further contend that the postal chauffeur was taken by surprise and in his efforts to avoid colliding with the boy, he caused his truck to skid on the slushy pavement, colliding with the child and possibly with the parked car. However, this is contrary to the facts as presented in behalf of the claimant. This set of facts has it that Frank Malles, Jr., who was then 7 years of age, was sitting on the running board of his father's car in front of his home, between 4:30 and 5 o'clock in the afternoon, when the mail truck came out of an alley across the street and slightly to the west of the place where the boy was seated, and that in making a turn to the left on the street, which was covered with snow and ice, the truck skidded on the street and struck the automobile on the running board of which Frank Malles, Jr., was sitting, the impact knocking the car sideways and throwing the child to the street. There are a number of affidavits submitted to substantiate this set of facts. As a result of the accident the boy suffered a fissured fracture of the skull, being the occipital bone which extends down to the left base of the skull with a slight depression. It is stated by the physician attending the boy in an affidavit dated April 28, 1939, 4 years after the date of the accident, that the boy shows a very definite sensitive nervous system, as revealed in extreme restlessness, irritability, diffused twitching and extremely restless sleep. It is the doctor's opinion that this condition is the direct after effect of the skull fracture received by him in the accident which is the subject matter of this report. The boy was in bed for 3 weeks following the accident and the doctor's bill was $75. There is a difference in contention here between the Government department and the claimant, with respect to the position of the child at the time of the accident. However, in view of the fact the committee is in receipt of affidavits to support the contention that the child was sitting on the running board of the car, together with the fact that the Government department admits that the driver skidded across the street and out of its normal position, thereby striking the child, your committee is of the opinion that liability rests with the Government in this instance. Accordingly, it is recommended that the bill in its amended form be passed. Appended hereto is the report of the Post Office Department, together with other pertinent evidence. Hon. AMBROSE J. KENNEDY, OFFICE OF THE POSTMASTER GENERAL, Chairman, Committee on Claims, House of Representatives. MY DEAR AMBROSE: In compliance with the request contained in your letter of April 16, I herewith transmit for consideration with H. R. 6268, all papers on file in the Department relating to the claim of Frank Malles, Jr., of Chicago, Ill., in the sum of $5,000 on account of injuries sustained in an accident involving a United States mail truck which occurred on March 7, 1935. It will be noted that the mail truck was east-bound at a point in the middle of a block when the claimant, a 7-year old boy, ran across the street from north to south, stopping with his hands on the left door of his father's parked car. Thereafter the boy stepped back a short distance into the street. The postal chauffeur was taken by surprise and in his efforts to avoid colliding with the boy he caused his truck to skid on the slushy pavement, colliding with the child and possibly with the parked car. On the latter point the chauffeur disclaims knowledge of a collision with the car, whereas the claimant's father, in filing claim under the provisions of 5 United States Code 392, as amended, alleged that his car was also damaged. As indicated above, a claim was filed with the Department covering the personal injuries sustained by Frank Malles, Jr., and the alleged damage to his father's car, but after careful consideration it was found necessary for the Department to disallow the claim on the ground that the evidence did not establish the responsibility of the Government. In the circumstances it is believed that the pending bill should not receive favorable consideration. Very truly yours, JAMES A. FARLEY, POST OFFICE DEPARTMENT, OFFICE OF INSPECTOR, Chicago, Ill., October 1, 1935. Subject: Chicago, Ill.: Accident involving United States mail truck 17576, resulting in personal injuries to Frank Malles, Jr., on March 7, 1935. INSPECTOR IN CHARGE, Chicago, Ill. 1. This case relates to an accident which occurred in Wolfram Street, opposite number 1025, in the city of Chicago, Ill., at approximately 4:20 p. m., March 7, 1935. Personal investigation was concluded at Chicago, Ill., September 18, 1935. 2. The accident involved United States mail truck No. 17576, a 1-ton capacity Ford, and a pedestrian, Frank Malles, Jr., a youth 7 years of age. The postal truck was traveling east in the street which is 30 feet wide. The weather was cloudy. The pavement was in good condition but covered with melting snow. Traffic was not regulated in any manner in the vicinity, and according to the postal employee there was only one vehicle, other than the mail truck, in motion at the time and that vehicle was being backed against the north curb. police report of the accident has been made. No 3. Carrier Harry A. Vogt, who is assigned to the Lakeview Station of the Chicago post office, was operating the postal truck. He has had 12 years' automobile driving experience, and during the 12-month period ended March 7, 1935, he was involved in one other accident and held to have been responsible in that instance by the local motor-vehicle service. His reputation as to truth and veracity has been reported by his supervisor as being good. His affidavit relative to this accident is herewith and reads as follows: "Affiant saith that he drove the postal truck south-bound in Seminary Avenue on his regular collection tour; that after making collection of mail of the letter box at the northeast corner of Seminary Avenue and George Street, he drove the postal truck south-bound in Seminary Avenue; that on approaching the next intersection, Wolfram Street, he reduced the speed of the postal truck to about 6 or 8 miles per hour, and made a left-hand turn into Wolfram Street in accordance with his route schedule; that his next collection box was at 2835 Sheffield Avenue; that Sheffield Avenue is one block east of Seminary Avenue; that the Aggassiz School and playground is located at the northeast corner of Wolfram Street and Seminary Avenue, that after making the left-hand turn into Wolfram Street he drove east-bound therein gradually increasing the speed of the postal truck to about 15 or 18 miles per hour (estimate speedometer not registering speed); that when the postal truck was about midway between Seminary Avenue and Sheffield Avenue, and about 12 to 15 feet from the place of the accident he first observed the boy on the side of the roadway out in the open between two parked cars, running in a southerly direction; that he promptly gave a horn signal and applied the brakes; that said boy ran across the path of the postal truck to the Ford coupe (owned by his father) on the south side of the roadway, placed his hands on the right door as though to brace himself, and thence stepped backward in the roadway about 1 foot; that he swerved the postal truck toward the left intending to collide with the parked car and thereby avoid the child; that the postal truck skidded several feet on the snowy, icy, and slushy pavement prior to the collision. "Further, he could not state whether the postal truck collided with the parked Ford coupe, although the owner thereof stated he did." 4. Frank Malles, Sr., father of the injured boy, has filed claim in the sum of $3,500 for the injuries sustained by his son, and in the sum of $13.75 for property damage to his automobile. His affidavit relative to this accident is herewith and reads as follows: "I am 30 years of age; a waiter by occupation; reside at 1025 Wolfram Street, Chicago, Ill., and am the father of Frank Malles, Jr. who was born July 21, 1927. On March 7, 1935, Frank Jr., was injured, being struck by a United States mail truck. The accident occurred in front of my residence, and although I did not witness it I was at home at the time and at the scene of the accident a few minutes after it happened. "According to my son, he was sitting on the left running board of my automobile, which I had parked directly in front of my residence. The car was headed east and against the south curb of the street. He was making snowballs and observed the postal truck travel south in an alley, which is situated east of the yard of a school, located at the northeast corner of Wolfram Street and Seminary Avenue; that the postal truck was turned toward the east in Wolfram Street; that another private car was traveling west in Wolfram Street at the time; that it was necessary for the postal driver to apply the brakes of his truck, which caused it to skid toward where Frank was sitting; that the truck continued to skid, striking him and pushing his head against my car causing a fracture of the skull. I immediately called a doctor to treat my son and the doctor took him to the Augustana Hospital where he was confined until March 15, 1935. After that it was necessary for him to stay at home for an additional period of 3 weeks before he was able to return to school. The boy does not appear to be entirely normal and it is my opinion that the injury to his head has affected his memory. In connection with his injuries I spent $75 for doctor's services and $53.90 for his care while at the hospital. In order to amuse the boy during his illness I spent between $8 and $9 for toys. "The left side of my car was damaged and I have had it repaired; however, I had other work done at the same time and at this time do not know the exact cost of repairing the damage done by the mail truck. "I was at the scene of the accident immediately after it occurred and while conversing with the postal driver he acknowledged that he drove from the alley into Wolfram Street and pointed to the tracks made by the mail truck which were visible in the snow. "I have been advised of the provisions of section 59, Postal Laws and Regulations of 1932, as amended, and after giving the matter much thought have decided not to reduce the amount of my claim, for the reason that it is possible that my son will require further medical attention, and in that event I desire to be protected." 5. Neither the postal driver nor the claimant has submitted the names of any witnesses, and so far as can be determined there were none. 6. Section 15, paragraph C, of article VI, Uniform Traffic Code for the city of Chicago, appears to apply in this instance. It reads as follows: "Any pedestrian crossing a roadway at any point other than within a cross walk shall yield the right-of-way to vehicles upon the roadway." 7. Attention is invited to the fact that the version of the accident as stated by Mr. Malles at this time differs somewhat with the version he related to route supervisor L. A. Sterba, who called upon the injured boy and his parents on the day following the accident. At that time no mention was made of the postal truck attempting to avoid a vehicle traveling west in Wolfram Street, it being stated that the postal truck had emerged from an alley, situated about 75 feet west of the point where the accident occurred, at a too rapid rate of speed which caused it to skid against the boy who was on the running board of his father's automobile. 8. The carrier denies that he drove from an alley and has submitted a statement by Miss A. Buerckel, 1050 George Street, Chicago, Ill., to the effect that she observed him travel south in Seminary Avenue and turn east in Wolfram Street just prior to the time of the accident. In connection with Miss Buerckel's statement it will be well to consider the fact that it has been determined that she was a friend of the carrier's at the time of the accident and since then she has become his fiancee. 9. The alley from which it is alleged the postal truck emerged into Wolfram Street does not lead directly south from George Stseet, but extends west and south from another alley which directly connects George and Wolfram Streets, and which intersects Wolfram Street at a point east of where this accident occurred. In the event the carrier was to travel between George and Wolfram Streets, by way of an alley it appears reasonable to assume that he would use the most direct route. 10. In support of his claim for property damage Mr. Malles has submitted a receipted bill indicating that the necessary repairs cost $13.75. The damage to the private automobile was examined by a mechanic attached to the local motorvehicle service on March 14, 1935, who reports that the repairs were necessary and that the amount charged therefor is reasonable. 11. In support of the claim for personal injury, Mr. Malles has submitted a receipted bill for $53.90 paid the Augustana Hospital, Garfield Avenue and Sedgwick Street, Chicago, Ill.; a receipted bill for $75 paid Dr. Hugo O. Deuss, 2051 Sedgwick Street, Chicago, Ill., for services rendered, and also a certificate completed by Dr. Deuss on March 18, 1935. The certificate indicates that the injured boy was first treated by the doctor at the Augustana Hospital on March 7, 1935, and that treatment was continued until the date on which the certificate was completed, March 18, 1935; that the nature and extent of the disability for which treatment was sought was fracture of skull, contusion with hematoma of right frontal and temperal regions, both orbital regions, and contusion of both knees; that the fracture was determined by X-ray; that no other concurrent or com plicating diseases were present; that the claimant was confined to bed; that as a result of the depression of fragments in the cerebellar area it is possible that some future disturbance may result; that the amount of the bill for doctor's services is $75 and that it has been paid. 12. The bill for professional services rendered by Dr. Deuss is not itemized and in an interview he stated that his charge was based upon the nature and extent of the injuries treated and the number of calls made was not taken into consideration. He further stated that he treated the boy until April 15, 1935; that the boy has apparently entirely recovered from his injuries but that it is entirely possible he may have further trouble due to adhesions. 13. An investigation of this accident was made by the local motor-vehicle service soon after it occurred. The action recommended by the local superintendent, motor-vehicle service, when reporting this case to the Department is as follows: "From the information on hand it appears that the postal truck, driven eastbound in Wolfram Street, was involved in a collision with the boy on the south side of the roadway, the right rear of the postal truck coming in contact with the boy, felling him to the pavement. The carrier contends that just prior to the accident the boy ran from the north to the south side of the roadway from between parked cars and placed his hand on the right door of his father's car parked headed west next to the south curb as though to brace himself and then stepped backward about 1 foot. When the brakes of the postal truck were applied in an endeavor to avoid this accident the postal truck skidded on the slushy, snowy, and icy pavement, resulting in the collision. On the other hand, claimant contends that the postal truck, which emerged from the alley just west of 1025 Wolfram Street and thence turned eastward into Wolfram Street, was driven at too great a speed considering the slippery condition of the pavement and as a result skidded into the side of the parked automobile on the running board of which the boy was seated. Both the carrier and claimant failed to submit the names of witnesses to the accident. However, the carrier did submit the statement of a witness in effect that the postal truck was not driven out of said alley just prior to the collision, but that it had been driven south-bound in Seminary Avenue and thence turned toward the east in Wolfram Street, after which the collision occurred. It is to be noted that the snowfall for the day was 2.8 inches, and the temperature was 30°. "Since this office has no reason to disbelieve the statement of the carrier, in substance, that prior to the accident he drove the postal truck south-bound in Seminary Avenue and thence east-bound in Wolfram Street and thereafter was involved in a collision with the boy who ran from the north to the south side of the roadway from between parked cars, across the path of the postal truck, which was moving about 15 to 18 miles per hour and then about 12 to 15 feet from the place of the accident, and against the side of a parked car when the collision occurred, no action was taken against the carrier. Further, claim for personal injury should be disallowed." 14. It has been impossible to definitely determine responsibility in this case in view of the absence of disinterested witnesses. However, since no evidence other than the claimant's has been produced which would tend to discredit the carrier's statement and for the reason that the carrier bears a good reputation as to truth and veracity I am inclined to believe his version which indicates that the accident was unavoidable on his part and caused by the boy running across the path of the postal truck at a point other than an intersection. Under the circumstances it is recommended that the claim in this case be disallowed. H. H. KIMBall, AFFIDAVITS STATE OF ILLINOIS, County of Cook, 88: Frank Malles, Sr., being first duly sworn, on oath deposes and states that he is 32 years of age; that he resides at 1141 Wellington Street, Chicago, Ill. That on March 7, A. D. 1935, he resided at 1025 Wolfram Street, Chicago, Ill., and that he is the father of Frank Malles, Jr., who was 9 years of age on the 21st day of July A. D. 1936; that said Frank Malles, Jr., attends the Agassiz Public School and is in the fourth grade thereof and attends the Lutheran Church located at Greenview and Belmont Avenues, Chicago, Ill. That this affiant was in his home on March 7 A. D. 1935, at about 4:30 p. m. when an accident occurred to the said Frank Malles, Jr.; that this affiant did not directly witness said accident, but that he first knew of the same when a mailman, one Harry Vogt, P. O. No. 1383, who had been driving a United States mail truck No. |