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was caused to shake and tremble. Aily Swan immediately ran out and hollered to some Work Projects Administration employee and told him that the blast had broken the light. At that time she did not know that the window had been broken and other damage done to the house. On the following day an employee of the Work Projects Administration, whose name was Charlie Stevens repaired the window glass. Harry Smith, another employee, brought a new light shade and repaired it. Both claim that the day following the explosion they noticed several cracks in the plaster in the rooms which they had never noticed before; that on the following day the outside of the house was examined and it was found that large cracks extended from the roof clear down to the ground, through the stone and tile. These cracks appeared in several places.

The house was built on the side of a hill on a solid stone foundation. The dirt had been removed and rock blasted out and the stone wall built thereon and the house built on top of the stone. It is on an elevation of about 75 or 100 feet higher than where the blasting occurred. The evidence also shows that this same blast or explosion broke windows in another house a greater distance away from where the blasting occurred.

Sam Swan states that he was informed by one of the Work Projects Administration employees that the heavy blast was caused by the placing of about nine "dobey” shots some distance apart, five of which were caused to go off or explode at the same time. The evidence shows that the cracks in the walls of the house have continually increased in size.

There is no doubt in the minds of the committee that this damage was caused by the blasting of the Work Projects Administration employees and these people should be reimbursed for the damage sustained. As to the value of this property there is an affidavit signed by five county officials setting forth that the amount of $3,000 would cover the damage.

Therefore, your committee recommend the amount of $3,000 be paid to Sam Swan and Aily Swan. Appended hereto is the report of the Federal Works Agency.

(6

FEDERAL WORKS AGENCY,

Washington, April 13, 1943. The Honorable Dan R. McGEHEE, Chairman, Committee on Claims, House of Representatives,

Washington, D. C. DEAR MR. McGEHEE: Reference is made to your letter of September 19, 1942, addressed to the Commissioner of Work Projects, and to my reply of September 25, 1942, relating to H. R. 7417, Seventy-seventh Congress, a bill. for the relief of Sam Swan and Aily Swan.

This Agency's report is as follows: The bill proposes to appropriate to Sam Swan and Aily Swan, of Williamson, W. Va., the sum of $3,600 “in full settlement of all claims of the said Sam Swan and Aily Swan against the United States on account of damage to their home, owned jointly by them, caused by an explosion on October 13, 1941, in a stone quarry where blasting operations were being conducted by the Work Projects Administration."

Claimants, through their attorney, allege that on October 13, 1941, Work Projects Administration employees were engaged in quarry operations about 300 feet distance from their residence; that, at about 2:30 p. m., a large explosion occurred at the quarry which was so severe that it shook the house and caused a light shade on the porch to fall to the floor and, in addition, to break a window in the front of the house; that, immediately after the explosion, they noticed several cracks in the plaster in the rooms of the residence which they had never noticed before; that, on the following day, the exterior of the house was examined and it was noticed that large cracks extended from the roof to the ground through the masonry; that they have been informed that heavy explosion was due to blasting operations conducted by Work Projects Administration employees in the quarry nearby in which approximately nine "dobey" shots were timed to explode at the same time; that the cracks in the walls allegedly caused by the blasting have continued to increase in size; that, in attempting to obtain estimates for the cost of repairing the damage, they were informed that the damage could not be repaired but that it would be necessary that the entire house be demolished and rebuilt; that the cost of rebuilding would approximate $5,600, with a salvage value of $2,000, resulting in a net loss of $3,600.

The evidence in the file of the Work Projects Administration discloses that the dwelling in question is situated on the side of a mountain which has a slope of 194 to 1 foot; that a coal vein lies about 10 feet below the top of the foundation wall; that the nature of the soil on the mountainside is such that numerous and extensive slides have occurred around the dwelling in the past 3 years; that the basement is only partially excavated and, at the right rear corner, water penetrates through and under the foundation walls causing foundation disturbances and stress upon various partition walls; that the brick columns supporting the girder beam, which in turn supports the floor joists, do not have sufficient footing to support the load due to the soft wet clay on which they are bearing; that previous settling, which has caused foundation dislocations, plaster cracks and floor settling, is evidenced by the decayed condition of the girder beam and wooden wedges which have been driven between the brick supporting columns and tho girder beam; and that the condition of the house was caused by water infiltration, constant pressure from the mountainside, and other causes not connected with the quarry operations.

The chief engineer inspector for the Work Projects Administration for West Virginia in a comprehensive report declares that, in his opinion, the cracks in the foundation wall are due to settlement caused by slips on the mountainside and poor drainage; that the cracks in the house walls are due to normal drying of the cement joints, the pressure superimposed by the roof, and the settlement of the foundation walls; and that the plaster cracks are due to normal conditions and abnormal stress caused by settling. He further declares that in his opinion the dropping of the light shade and the broken window glass were not caused by vibration but were caused by concussion, and that the explosives were in no way responsible for the damage to the exterior masonry walls or the interior plaster walls.

Claimants employed the services of a local civil and mining engineer who submitted a report which is in conflict with the report of the Work Projects Administration engineer. In view of the contradictory nature of the engineering testimony, a member of the regional engineering staff of the Work Projects Administration was requested to make a supplemental investigation and to submit a report with all pertinent information bearing on the case in order that an equitable disposition of the claim could be made.

The evidence adduced as a result of the supplemental investigation and survey was reviewed by Mr. Perry A. Fellows, assistant commissioner and chief engineer of the Work Projects Administration with the view of determining whether the damage was caused as alleged. He reports that: “This survey clarifies many of the controversial points in connection with this claim and it is my considered opinion that the Work Projects Administration project operations were not responsible for the settlement of Mr. Swan's home and the alleged damage to the plastering and foundation walls." This opinion is predicated on a report of the supplemental investigation which contains the following observations:

(1) Mr. Swan's home is located on the outcrop of a coal seam that is approximately at the elevation of the footings and, therefore, has been subjected to very unusual moisture conditions.

(2) “Dobey" shots, while creating severe concussion that might break windows, do not ordinarily cause structural failures.

(3) The sanitary sewer along the foundation walls and laid partially in a very shallow trench is very close to the bottom of the foundation walls and may be considered as contributing to the foundation difficulties.

(4) The plastering in the Swan home has been damaged from the effects of a leaking roof and not entirely from settlement causes.

(5) The existence of numerous slides in the vicinity of the Swan residence indicates unstable earth conditions.

(6) Several other agencies and concerns have carried on blasting operations in the vicinity during the last 3 years.

(7) Other houses in the vicinity closer to the quarry than the Swan home have apparently not been damaged.

It would appear from all the evidence that the amount which would be appropriated under the terms of the proposed legislation would be unreasonable in the event the damage to the Swan home could be affirmatively established as having been caused by the negligence of Government employees. Accordingly, this Agency recommends against the enactment of the bill as proposed.

There are enclosed photostatic conies of pertinent papers from the file of the Work Projects Administration, including the report of claimant's engineers, the Work Projects Administration engineers, and a plat indicating the relative location of coal seams and outcrops, landslides which have occurred within the last 3 years,

the Swan residence and other structures in close proximity to the quarry. The Bureau of the Budget advises me that the proposed legislation would be in conflict with the program of the President and that while the final adjournment of the Seventy-seventh Congress has prevented further consideration by that Congress of H. R. 7417, there would be no objection to the submission of this report by the department the present Congress inasmuch as a bill, H, R. 1133, identical in terms, has been introduced and referred to your committee. Sincerely yours,

ALAN JOHNSTONE, General Counsel.

To the Committee on Claims of the United States House of Representatives:

(Memorandum of Representative John Kee, of West Virginia, on H. R. 1133, a bill for the relief of Sam Swan and Aily Swan.)

H. R. 1133, introduced by Representative John Kee, of West Virginia, on January 25, 1943, directs the payment to Sam Swan and Aily Swan of the sum of $3,600 in full for damages to the home of the claimants occasioned on October 13, 1941, by the Work Projects Administration while conducting blasting operations in a stone quarry located near the claimants' residence in Mingo County, W. Va.

A bill identical with H. R. 1133 was introduced in the House during the Seventyseventh Congress but, as the writer is advised, because of the difficulty met with in securing a report on the matter from officials of the Work Projects Administration, was not acted upon before final adjournment of that Congress. The bill now under consideration was introduced early in the present session, to wit, on January 25, 1943, and the Work Projects Administration report, although requested by the Claims Committee on September 19, 1942 (the committee then having before it the former bill), has only recently, i. e., under date of April 13, 1943, been transmitted to the committee.

The report, signed by Alan Johnstone, general counsel of the Federal Works Agency, is adverse to the payment of the claim. The reasons assigned by the general counsel for this adverse report are set out by him in the identical language of, a report made on January 26, 1943, in reference to this claim by one Roland R. Pyne, signed by him as field engineer and addressed to Perry A. Fellows as assistant commissioner and chief engineer, and which last named report appears in the files of this case.

The reasons so assigned by Field Engineer Pyne, and adopted in their entirety by General Counsel Johnstone as grounds for refusal of payment, are as follows:

(1) Mr. Swan's home is located on the outcrop of a coal seam that is apparently at the elevation of the footings and, therefore, has been subjected to very unusual moisture conditions,

(2) "Dobey" shots, while creating severe concussion that might break windows, do not ordinarily cause structural failures.

(3) The sanitary sewer along the foundation walls and laid partially in a very shallow trench is very close to the bottom of the foundation walls and may be considered as contributing to the foundation difficulties.

(4) The plastering in the Swan home has been damaged from the effects of a leaking roof and not entirely from settlement causes.

(5) The existence of numerous slides in the vicinity of the Swan residence indicates unstable earth condicions.

(6) Several other agencies and concerns have carried on blasting operations in the vicinity during the last 3 years.

(7) Other houses in the vicinity closer to the quarry than the Swan home have apparently not been damaged.

The above grounds for refusing payment of the Swan claim would undoubtedly be good and sufficient were they supported by any evidence. A very careful examination, however, of the entire file in this case not only fails to disclose any evidence whatsoever, other than the report of Mr. Pyne above-mentioned, which in any manner supports these contentions but, on the contrary, the file contains numerous uncontroverted affidavits of reliable and unimpeached witnesses, men of unquestioned integrity, who flatly contradict the alleged conditions assigned by the Work Projects Administration representatives as reasons for the refusal to recommend payment of the claim. A careful reading and examination of these affidavits is commended.

The fact that the claimants, Sam and Aily Swan, are the owners of a home near (or in) Williamson, W. Va., built by them at a cost of $5,600, is not controverted. The fact that, in some manner, this residence has been greatly damaged is also not disputed. There is also no contradiction of the fact that on October 13, 1941, & force of men working for and under the direction of the Work Projects Administration and while engaged in blasting operations near this residence, caused to be set off several violent explosions. It is not disputed that immediately following these explosions, the men working at the quarry were notified by Aily Swan that damages to the Swan home had been caused by the explosions. It is also undisputed that, following these explosions, an examination of the Swan home was made by a number of people qualified as contractors and builders, who assess these damages at from $3,119.40 to $3,600.

As stated above, the Work Projects Administration officials base their refusal to recommend payment of this claim on seven separate contentions as set out in the report of General Counsel Johnstone to the Claims Committee, all of which contentions are, so far as the evidence is concerned, purely theoretical and not factual. Without attempting to discuss these contentions in great detail, let us briefiy examine them.

(1) Stress is laid by the Work Projects Administration officials on the allegation that the Swan home is located on the outcrop of a coal seam that is approximately at the elevation of the footings. The suggestion is made that the presence of this seam would subject the building to unusual moisture conditions. Frankly, and even if this allegation was supported by evidence, it would not occur to the ordinary layman that the presence of a coal seam in the earth, unless it had been mined out from under the building or was being mined, would in any manner affect the building's foundation. However, the presence of a coal seam near the Swan residence or under it is specifically denied in the testimony filed herein. Particular attention is called to the testimony in the affidavit of Mr. D. M. Goode, a civil and mining engineer of 40 years' experience and who, as stated in his affidavit, has for the past 30 years done the engineering for at least 40 percent of the coal mines operating in Mingo County during that period. Mr. Goode says: “I failed to find any vein of coal 10 feet or within 50 feet below the foundation of the Sam Swan residence There is a small vein of coal slightly above the roof of his house and up in the side of the mountain. I do not believe there is any seam of coal under the Swan residence and certainly there is none that would interfere with the foundation."

(2) The second contention is that “ 'Dobey'shots, while creating severe concussion that might break windows, do not ordinarily cause structural failures." The affidavits on file in this case show that the explosions in the quarry on the day the damages were occasioned, were of extreme severity. Affidavits will be found in the file to the effect that from five to seven of these so-called Dobey shots were put off simultaneously. There is no evidence introduced by the Work Projects Administration officials to show the quantity of dynamite used in each shot. There is, however, a number of affidavits testifying to the extreme severity of the concussion. It is difficult to see any probative value whatever in the mere statement that “Dobey' shots do not ordinarily cause structural failure.” Especially is this true as to this case where the undisputed testimony is that the shots complained of were extraordinary-and this evidence is undisputed.

(3) In the same classification with contention No. 2 is contention No. 3 to the effect that a sanitary sewer along the foundation walls of the building “may be considered as contributing to the foundation difficulties." All of this is purely theoretical, is unsupported by any affidavit or statement of any witness, and is clearly refuted by the uncontradicted statement of engineer, Goode, who says "While it is true that the basement is only partially excavated, I can find no signs of water having penetrated through the foundation walls causing foundation disturbances and stress upon various partition walls as has been reported.”

(4) In the same category may be placed also contention No. 4 to the effect that the plastering in the home was damaged by reason of a leaking roof. Field Engineer Pyne seems to be the only agent of the Work Projects Administration who proposes the leaking roof theory. H. L. Haverstick, who it seems made a personal inspection of the Swan home and reported his findings to Mr. Johnson E. Bell, State compensation officer, on February 11, 1942 (see file) dismisses the question of damage to the plaster with the following statement: "This house has all the usual and numerous cracks in the plastered walls, both ceiling and side walls, that any well-built house would normally have after being built 2 years or more regardless of where built." There will be absolutely no evidence found in the file to support the contention that the plastering in this house was damaged by reason of a leaky roof. This is just one other unsupported theory.

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(5) The statement is here made: “The existence of numerous slides in the vicinity of the Swan residence indicates unstable earth conditions." While there is some evidence in the file to indicate that some slides have heretofore occurred on the hillside some distance from the Swan residence, yet there is no evidence whatever, either in affidavit form or as a mere statement, to show there was ever any slide on any part of the Swan property. If there had been such a slide, this would have been a fact easy to have been shown in evidence, but no such showing is made. On the contiary, there is clear evidence that the Swan residence was built on a solid rock foundation, and on land not subject to slides. Engineer Goode in his affidavit makes the following statement: "I cannot find any signs - or indications of slides having occurred around the dwelling of Sam Swan in the past 3 years or at all, as appears to have been reported against the Swan claim.

3 The Swan residence is on a solid foundation and I can find no sign or indications of the dwelling having moved at all. There is a space between the rear end of the house and the hillside which is clear and is down to the stone, and that seems to me to be conclusive evidence that there have been no slides back of the building that would interfere with the foundation.” (See affidavit of D. M. Goode.)

(6) This contention is to the effect that "several other agencies and concerns have carried on blasting operations in the vicinity during the last 3 years." So far as the writer is concerned, he has been unable to find a single scintilla of evidence in the file of this case, showing any blasting operations in this vicinity other than by the Work Projects Administration. We failed to see any value whatever in this contention. There is nothing whatever to support the statement.

(7) The last of the theories advanced in defense against this claim is that “other houses in the vicinity closer to the quarry than the Swan home have apparently not been damaged." This statement is not only without foundation in fact and unsupported by proof, but it is refuted by the clearest possible evidence. As witness the following:

In the file will be found the affidavit of Lane Robinett, one of the Work Projects Administration employees engaged in the blasting operation. Robinett, under oath, says that the three-room miner's house situated between the Swan home and the quarry, where the explosion occurred (this being the only other house in that immediate vicinity), was badly damaged by the explosion. Robinett himself made repairs to this house after the explosion by direction of the Work Projects Administration authorities. Particular attention is called to Robinett's affidavit.

Sam Swan and Aily Swan, the claimants in this case, have filed their sworn statement in which they clearly set out the fact that, prior to the blasting by the Work Projects Administration, their home was sound and undamaged, and that it was damaged by the explosion set off by the Work Projects Administration employees. Aily Swan, who was in the home at the time of the explosion, testified to its severity. Both of the claimants testified to the extent of the damage, placing the amount at $3,600. The claimants are corroborated by the sworn statements of many witnesses, the affidavits of whom will be found in the file, to wit:

Walter Stargill, Major France, and Mrs. Vergie Cains, who testify they were visitors at the Swan home at divers times before the blasting operations, and noted that the home was sound and undamaged. The same witnesses noted and testified in their affidavits to the damages to the home after the blasting.

D. M. Good, civil and mining engineer, clearly described the damages done to the Swan home and refutes any contention that the damages were caused by any agency other than the explosion.

Mrs. Juliana M. Stissel, Noah Bowling, Buster Darwin, J. M. Brown, E. H. Trent, and Mrs. Irene Jackson, all heard the explosion and, in affidavits filed herein, testify that the explosion was severe and unusual.

Robert Sando, stone mason of 30 years' experience, examined the Swan home after the explosion and in his sworn statement agrees with engineer Good, as to the damage done to the Swan home. This witness states: “I did the stone work at the Swan house and I know that the stone foundation rests on solid stone.' This testimony disproves the claim of the Work Projects Adininistration officials or, rather their theory, that this home was built on an unsecure foundation.

Lee Griffith and T. J. Bluebaum, plasterers, both examined the plastering in the Swan home after the explosion and found it badly cracked. They state in their affidavit that it will cost $390 to remove and replace the plastering.

G. E. Jones, building contractor of 19 years' experience, examined the Swan home after the explosion and files his affidavit in which he states that in his opinion the "crushed and shivered” condition of the plastering could not have

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