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MURRAY W. MORAN

FEBRUARY 22, 1945.-Committed to the Committee of the Whole House and

ordered to be printed

Mr. Krogh, from the Committee on Claims, submitted the following

REPORT

(To accompany H. R. 1707)

The Committee on Claims, to whom was referred the bill (H. R. 1707) for the relief of Murray W. Moran, having considered the same, report favorably thereon with an amendment and recommend that the bill, as amended, do pass.

The amendment is as follows:

At the end of bill add: : Provided, 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.

1.upon conviction thereof shall be fined in any sum not exceeding $1,000.

The purpose of the proposed legislation is to appropriate the sum of $2,055 to Murray W. Moran, of Spring Hill, Ala., in full settlement of all claims against the United States for the death of his minor son, Milton Moran, who was struck and killed by a United States Army truck on October 13, 1943, while he was crossing the highway leading from Spring Hill, Ala., to the State of Mississippi, at a point approximately 2 miles west of Spring Hill.

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STATEMENT OF FACTS

It appears that on October 13, 1943, at about 6:30 p. m., an Army 2%-ton cargo truck, on official business, was proceeding east on Old Shell Road, 9 miles west of Mobile, Ala., at a speed estimated by the Army driver at 30 miles per hour. Darkness was approaching, it was drizzling, and the concrete pavement was wet from a previous heavy rain. The Army driver states that upon observing a man standing behind a civilian automobile parked on the left side of the highway in front of a grocery store, and also several children playing on both sides of the road at that location, he reduced his speed. As he approached the parked automobile, the Army driver saw a boy, Milton Moran, 6-year-old son of Murray W. Moran, of Spring Hill

, Ala., run from behind the car and cross the highway from the left (north) toward the right (south) side of the road and directly into the path of the Government truck. The Army driver immediately applied his brakes and turned slightly to the right in an attempt to avoid the child. The truck skidded approximately 120 feet, and the left side of the front bumper struck the child, knocking him to the pavement.

The records indicate that shortly before the accident the proprietress of the grocery store had escorted Milton Moran and his twin brother, Hilton Moran, who had been sent to the store by their mother, across the highway to the south side thereof; that Milton Moran had returned to the north side of the road to ask permission of the owner to ride a horse which was standing in front of the store; that the horse's owner refused such permission; that Milton Moran thereafter attempted to run back across the highway to reach the point where his brother was waiting; and that he was looking back, watching the horse, and apparently did not see the approaching Army truck which struck him.

As a result of the accident, Milton Moran received severe personal injuries and was taken to the Providence Hospital, at Mobile, Ala., where he was pronounced dead upon arrival. He was 6 years of age at the time of his death. He was one of four minor children who were entirely dependent upon their father for their support. The records disclose that Mr. Moran incurred expenses in the amount of $55 as the result of the injury and death of his son.

In a report dated September 11, 1944, the War Department states:

The evidence fairly establishes that the proximate cause of the accident and the resulting death of Milton Moran was the negligence of the Army driver in that although he observed small children playing near the edge of the pavement be failed to reduce his speed sufficiently so that he could maintain such control over his vehicle as to enable him to bring it to a full stop, if necessary, in order to avoid stiiking a child who might run into the path of his approaching vehicle. Although the action of the deceased, Milton Moran, in running across the highway might have constituted contributory negligence on the part of an older person, under the law of Alabama, the State in which the accident occurred, a child under 7 years of age is conclusively presumed to be incapable of contributory negligence (Piriliz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779). Under the circumstances, the War Department believes that Mr. Moran should be compensated in & reasonable amount for the death of his son, Milton Moran, and the expenses incident to his burial other than those covered by insurance.

Therefore, your committee recommends favorable consideration to the proposed legislation. Appended hereto is the report of the War Department, together with other pertinent information.

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WAR DEPARTMENT,

Washington, D. C., September 11, 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. 4772, Seventy-eighth Congress, à bill for the relief of Murray W. Moran, in its present form.

This bill would authorize and direct the Secretary of the Treasury to pay "to Murray W. Moran, Route 1, Box 21-C, Spring Hill, Ala., the sum of $5,000

in full settlement of all claims of the said 'Murray W. Moran

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against the United States on account of the loss of his minor son, Milton Moran, who was struck and killed by a United States Army truck on October 13, 1943, while he was crossing the highway leading from Spring Hill, Ala., to the State of Mississippi, at a point approximately 2 miles west of Spring Hill.”

The Department, however, would have no objection to the enactment of the bill if it should be so amended as to provide for an award of $2,055 to Mr. Moran.

There is ro material conflict in the evidence concerning the circumstances surrounding this accident. On October 13, 1943, at about 6:39 p. m., an Army 27ton cargo truck, on official business, was proceeding east on Old Shell Road, 9 miles west of Mobile, Ala., at a speed estimated by the Army driver at 30 miles per hour. Darkness was approaching, it was drizzling, and the concrete pavement was wet from a previous heavy rain. The Army driver states that upon observing a man utanding behind a civilian automobile parked on the left side of the highway in front of a grocery store, and also several children playing on both sides of the road at that location, he reduced his speed. As he approached the parked automobile, the Army driver saw a boy, Milton Moran, 6-year-old son of Murry W. Moran, of Spring Hill, Ala., run from behind the car and across the highway from the left (north) toward the right (south) side of the road and directly into the path of the Government truck. The Army driver immediately applied his brakes and turned slightly to the right in an attempt to avoid the child. The truck skidded approximately 120 feet, and the left side of the front bumper struck the child, knocking him to the pavement. It appears that shortly before the accident the proprietress of the grocery store had escorted Milton Moran and his twin brother, Hilton Moran, who had been sent to the store by their mother, across the highway to the south side thereof; that Milton Moran had returned to the north side of the road to ask permission of the owner to ride a horse which was standing in front of the store; that the horse's owner refused such permission; that Milton Moran thereafter attempted to run back across the highway to reach the point where his brother was waiting; and that he was looking back, watching the horse, and apparently did not see the approaching Army truck which struck him.

As a result of the accident, Milton Moran received severe personal injuries and was taken from the scene of the accident to the Providence Hospital, at Mobile, Ala., where he was pronounced dead upon arrival.

Pvt. George D. Gray, the Army driver, made the following sworn statement, dated October 15, 1943:

"On the afternoon of October 13, 1943, I was requested to drive a GMC 24-ton 1940 cargo truck, No. 4154732, to carry a load of soldiers from the Headquarters and Supply Company from Bates Field to Mobile, Ala. It is customary for two Government vehicles from Bates Field to leave said field each afternoon about 6 p. m. to carry soldiers into Mobile on pass.

"We left Bates Field about 6 p. m. Pvt. Benard S. Peterson was riding in the cab with me, and a number of soldiers were riding in the rear. We were proceeding east on Old Shell Road at a speed

of about 30 miles per hour. We had reached a point about 4 miles east of Bates Field and about 9 miles west of Mobile, Ala., when an accident occurred.

“We came over the hill, and about 200 yards from us I saw an automobile stopped on the north side of said road on the pavement, and said car had stopped in front of the Hill Top grocery store, which is on the north side of Old Shell Road. When I was about 100 or 150 feet from the car, I saw a man standing behind the

I began slowing down, and when I was within 15 or 25 feet from said car, I saw a little child, Milton Moran, running from behind the car traveling south across the road in front of my truck. I applied my brakes and pulled the truck to the right, with my right wheels going off the pavement, in an effort to avoid hitting the child. However, I was too close, and the left side of the front bumper struck the child and knocked him several feet to my left in about the center of the road. I pulled the truck back into the road and stopped within 35 feet. I got out and ran back to where the child lay. Two other soldiers who were riding in the rear of said truck had jumped out and picked the child up.

“In my opinion, the child was lifeless at that time. However, a car came along and stopped. We asked the driver if he would carry the child to a hospital. He refused. Within a few moments, Murry Moran, the child's father, came. We put the child in his car. Corporal Robinson and Corporal Alcocer went with him to the hospital to carry the child. I remained at the scene of the accident.

"At the time of the accident, there was a drizzling rain, and just a short timo prior thereto it had rained pretty hard, and the road was wet.”

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Milton Moran was 6 years of age at the time of his death. He was one of four minor children who were entirely dependent upon their father, Murry W. Moran, for their support. The deceased left surviving the following persons:

Murray W. Moran, father, age 27 years.
Mrs. Elsie P. Moran, mother, age 25 years.
Hilton Moran, brother, age 6 years.
Rose Marie Moran, sister, age 4 years.
Bonnie Gail Moran, sister, age 2 years.
No claim has been filed with the War Department growing out of this accident.

The records of the War Department show that as a result of the injury and
death of his son Murray W. Moran has incurred the following expenses:
Dr. Charles S. Davis, Mobile, Ala..
O'Keefe Funeral Service, Biloxi, Miss.
Total.--

55 An extract from a statement, dated July 4, 1944, from Murry W. Moran reads as follows:

The expenses incident to the injury and death of my son were the doctor's bill rendered by Dr. Charles S. Davis, Jr., in the amount of $5, and the funeral expenses in the amount of $50, as rendered by O'Keefe funeral home, Biloxi, Miss. The rest of the funeral expenses were taken care of by an insurance policy which I had with Luquire Insurance Co., with offices in Mobile."

On July 22, 1944, the claims officer, Brookley Field, Ala., submitted the following statement:

"This is to certify that the undersigned (Second Lt. C. C. Williams, Quartermaster Corps) was informed by the Mobile manager of Luquire Insurance Co., Inc., that his company held the policy with Murry Moran for the funeral erpenses of his son, Milton Moran, who was killed by a Government vehicle on October 13, 1943, and that the Luquire Insurance Co., Inc., had a contract with Martin-Chevalier, Inc., whereby Martin-Chevalier, Inc., handled all funerals for which Luquire Insurance Co., Inc., was obligated by virtue of insurance policies. A. J. Chevalier, president of Martin-Chevalier, Inc., informed the undersigned that his company handled the body of Milton Moran as per its agreement with Luquire Insurance Co., Inc., and that the bill submitted in the amount of $73.61 was the actual cost of the funeral expenses of Milton Moran as performed by the company. This charge, however, was only for handling the body, preparing it for burial, furnishing the casket, and railroad fare transporting the same to Biloxi, Miss. Additional services for the funeral [hearse and services, auto for priest, church services) were rendered by O'Keefe Funeral Home in Biloxi, Miss.

The evidence fairly establishes that the proximate cause of the accident and the resulting death of Milton Moran was the negligence of the Army driver, in that although he observed small children playing near the edge of the pavement he failed to reduce his speed sufficiently so that he could maintain such control over his vehicle as to enable him to it to a full stop, if necessary, in order to avoid striking a child who might run into the path of his approaching vehicle. Although the action of the deceased, Milton Moran, in running across the highway might have constituted contributory negligence on the part of an older person, under the law of Alabama, the State in which the accident occurred, a child under 7 years of age is conclusively presumed to be incapable of contributory negligence (Pizitiz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779). Under the circumstances, the War Department believes that Mr. Moran should be compensated in a reasonable amount for the death of his son, Milton Moran, and the expenses incident to his burial other than those covered by insurance. While the amount stated in the bill is excessive, the Department would have no objection to the enactment of the bill if it should be so amended as to provide for an award in the amount of $2,055 ($55 for medial and burial expenses not covered by insurance; and $2,000 for the death of Milton Moran), which it is believed would constitute a fair and reasonable settlement of all the damages sustained as a result of the death.

For the purpose of accuracy, the name "Murray, lines 5 and 8 of the bill, should be changed to read 'Murry.

in the title and

appears 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,

HENRY L. STIMSON,

Secretary of War.

as it

STATE OF ALABAMA,

County of Mobile: Personally appeared before me, Harry Seale, a notary public in and for said State and county, Murray W. Moran, who, being by me first duly sworn, doth depose and say that he is over 21 years of age, lives on Route No. 1, Box 21-C, Spring Hill, Ala., and is the father of Milton Moran, deceased; that Milton Moran is one of a set of twins and was 5 years of age at the time of his death; that on the afternoon of October 13, 1943, he was told that his son Milton had been run over by an Army truck, and when he ran out to the spot on the highway where the accident occurred, a soldier had his son in his arms; that afliant immediately put his little son in his automobile and rushed him to the Providence Infirmary in Mobile, Ala., a distance of 8 miles ;that when he reached the hospital Dr. Charles S. Davis, of 1155 Springhill Avenue, informed him that the child was dead and that in his opinion it had been killed instantly.

Affiant further states that at the place of the accident there were skid marks left by the Army truck, and a day or two after the accident he went with Mr. Haywood Salley and measured them, using a steel tape for the purpose; that the right-hand wheels of the truck left skid marks 167 feet long; that at one point these wheels left the pavement for a few feet and then came back onto the highway, still skidding; that parties present told him that the truck went on beyond the skid marks a distance of around 100 feet or more before it came to a stop.

Affiant further says that he carried a burial policy for the child, but that, in addition to the use of the policy, he had to spend or lose over $200 in connection with the treatment ($5) and burial of his little boy.

MURRAY W. MORAN. Subscribed and sworn to before me on this 24th day of January 1944. (SEAL)

HARRY LEALL, Notary Public, Mobile County, Ala.

STATE OF ALABAMA,

County of Mobile. Personally appeared before me the undersigned authority in and for said State and county, Haywood Salley, who, being by me first duly sworn, doth depose and say that a day or two after October 13, 1943, he went with Mr. Murray W. ' Moran to a spot on the highway leading from Spring Hill, Ala., to the State of Mississippi, where it is said Milton Moran was killed by an Army truck, and assisted Mr. Moran in measuring skid marks which were still on the highway; that he found skid marks beginning at approximately 300 feet west of the place where Miss Mae Adams lives, and these marks measured 150 feet to the place where the skid marks left the pavement; that the right-hand wheels then ran off the pavement a few feet and then came back on the pavement still skidding and continued to skid on the pavement until it reached a point 167 feet 2 inches from the point where it originally started skidding; that the paved portion of the highway was 18 feet wide at the point in question; that the measurements were made with a steel tape.

Affiant further states that he is over 21 years of age, that he resides at R. F. D. No. 1, Spring Hill, Ala., and that he is not related to the Morans.

HaYWOOD SALLEY. Subscribed and sworn to before me on this 24th day of January 1944.

HARRY SEALE, Notary Public, Mobile County, Ala.

STATE OF ALABAMA,

County of Mobile: Personally appeared before me the undersigned authority in and for said State and county, Miss Mae Adams, who, being by me first duly sworn, doth depose and say that she lives on the paved highway leading westwardly from Spring Hill, Ala., to the State of Mississippi, at a point approximately 2 miles west of Spring Hill; that on Wednesday afternoon, October 13, 1943, at around 6:30 o'clock in

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