6. Furlough, while on, when in line of duty-Continued (c) Veteran furlough-Continued. man having such veteran furlough is regarded, during the existence of it, as in the line of duty for pensionable purposes, the same as in the field or hospital. William R. Osborn (Asst. Sec. Bussey), 3 P. D., 396. Overruled: 7 P. D., 398. The language of section 4700, Revised Statutes, relating to sol diers "upon veteran furlough with the organization to which they belong," is held to mean such soldiers while with their com mands when leaving and returning from veteran furlough, and not when separated and absent from such command while at their homes. The case of William R. Osborn (3 P. D., 396), is overruled, and the case of Lawrence H. Rousseau (2 P. D., pp. 6 and 151), cited and reaffirmed. Mathew M. Curtis (Asst. Sec. Reynolds), 7 P. D., 398. 7. In arrest, undergoing punishment, or serving sentence. (a) When not in line of duty. Where soldier's disability was contracted while confined in a military prison on a charge of desertion: Held, That he was not in line of duty, as the imprisonment was in consequence of his violation of the law. Minors of Joseph Reed (Sec. Chandler), 4 P. D. (o. s.), 56. Where claimant was placed under arrest and subsequently imprisoned for absence, without proper authority, beyond the period of furlough, disease incurred during the period of imprisonment was not contracted in line of duty. Peter A. Linerger (Sec. Schurz), 5 P. D. (o. s.), 285. A soldier is not in line of duty, as construed in the administration of the pension law, when absent from his company under sentence of a provost court. Michael Kearns (Sec. Schurz), 6 P. D. (o. s.), 254. A soldier can not be regarded as in line of duty while undergoing imprisonment in consequence of having violated military law. Citing Joseph Reed (Sec. Chandler), January 6, 1877. Sarah J. Barber (Sec. Teller), 9 P. D. (o. s.), 420. A soldier while under arrest for an offense for which he was subsequently court-martialed and sentenced to dishonorable dismissal from the service is not in line of duty as to disability incurred during the period of his arrest. Albert G. Fellows (Actg. Sec. Joslyn), 15 P. D. (o. s.), 4. Soldier's death from smallpox contracted while under arrest for desertion is not accepted as having been due to the service in the line of duty. Minor of John Hendricks (Asst. Sec. Hawkins), 1 P. D., 31. 7. In arrest, undergoing punishment, or serving sentence-Cont'd. (a) When not in line of duty-Continued. An injury received while soldier was under arrest as a deserter is not considered to have been incurred in the line of duty. Howard Miller (Asst. Sec. Hawkins), 1 P. D., 50. The fact a disability originated while the soldier was in confinement undergoing the sentence of a court-martial is, of itself, sufficient to locate the incurrence of such disability outside the line of duty. Citing and following minors of Joseph Reed, 4 P. D. (o. s.), 56; Michael Kearns, 6 P. D. (0. s.), 254; Sarah J. Barber, 9 P. D. (o. s.), 420. Clarence Wallace (Asst. Sec. Hawkins), 2 P. D., 41. It is entirely inconsistent with the idea of the line of duty that the soldier was, at the time of incurrence of disease which caused his death, undergoing punishment as a convict for a departure from the line of duty, and it is immaterial, so far as the principle which governs this and all similar cases may be concerned, as to what was the character of the punishment. inflicted by the court. Citing and following Minors of Josep Reed, 4 P. D. (o. s.), 56; Michael Kearns, 6 P. D. (0. s.), 254; Sarah J. Barber, 9 P. D. (o. s.), 420; Clarence Wallace, 2 P. D., 41. Mary Coburn (Asst. Sec. Hawkins), 2 P. D., 80. Overruled: s. c., 4 P. D., 62. It is entirely inconsistent with the idea of line of duty that the soldier was undergoing punishment as a prisoner for a departure from the line of duty. Citing Joseph Reed, 4 P. D. (0. s.), 56; Michael Kearns, 6 P. D. (o. s.), 254; Sarah J. Barber, 9 P. D. (o. s.), 420; Clarence Wallace, 2 P. D., 41; Mary Coburn, ibid., 80. Margaret A. Knight (Asst. Sec. Bussey), 4 P. D., 45. Soldier having voluntarily, without orders or permission, left the ranks while on dress parade, for which offense he was punished by his superior officer by being placed on a “wooden horse," where he remained for one hour and forty-five minutes, during which period he contracted a severe cold, resulting in rheumatism, he was without the line of duty, for pensionable purposes, while in such insubordination and undergoing such punishment therefor. Citing General M. Brown, 3 P. D., 29. Nerbain Baudet (Asst. Sec. Bussey), 4 P. D., 177. Disabilities incurred by a soldier while undergoing punishment for an offense against the rules of the Army are not ascribable to the line of duty for pensionable purposes. Widow and Minors of Vandergriff (Asst. Sec. Bussey), 5 P. D., 151. A disease contracted as the result of confinement in a mili tary prison was not contracted in the line of duty. George East (Asst. Sec. Bussey), 5 P. D., 243. 7. In arrest, undergoing punishment, or serving sentence-Cont'd. (a) When not in line of duty-Continued. Where a claimant who was drafted for one year's service failed to appear and was arrested as a deserter, was tried, convicted, and sentenced to forfeit all pay and allowances then due or to become due to the date of the promulgation of the sentence, and thereafter to be assigned to some regiment in the field to serve one year from the date of joining the same, the legal effect of said sentence was to postpone the commencement of his pensionable military service until his assignment to some regiment in the field in accordance with said sentence; and where so much of said sentence as directed him to be assigned to some regiment in the field was never carried into effect, his prospective military service never commenced, and any disability incurred by claimant can not be considered as having been incurred in the line of duty. Obediah P. Hankinson (Asst. Sec. Reynolds), 7 P. D., 227. (b) When in line of duty. The sentence of a court-martial, on a trial for desertion, that the soldier lose all pay and allowances for the period of his absence from duty and serve the remaining four months of service of his organization and twelve months additional in another organization (sixteen months being the length of his desertion) is no bar to pension on account of disability origi nating in the line of duty in such additional service; this case being distinguished from the cases of Reed, Kearns, and Barber (anterior), in that this soldier was not "confined in a military prison," nor "absent from his command," nor "undergoing imprisonment," nor was the alleged disease contracted "while in confinement" under sentence of a court-martial, but he was performing ordinary regular military duty with his command, the same as the other members thereof, at the time he incurred the fatal disease. Citing Atty. Gen. Cushing's Opinion, 2 P. D., 403, overruling decision in same case, 2 P. D., 80. Mary Coburn (Asst. Sec. Bussey), 4 P. D., 62. If a soldier is arrested and imprisoned on a charge, but on trial is adjudged not guilty, a disease incurred during his arrest and imprisonment is within the line of duty; but if adjudged guilty, such disease would be without the line of duty and nonpensionable. Caroline Chollar (Asst. Sec. Bussey), 4 P. D., 103. (c) Capture while in, and disability incurred in prison, is in. A soldier who was undergoing punishment for an alleged offense was captured by the enemy, being surrendered by his commanding officer and conveyed to a military prison wherein 7. In arrest, undergoing punishment, or serving sentence-Cont'd. (c) Capture while in, and disability incurred in prison, is in—Continued. he contracted pensionable disabilities which caused his death; and it is held that inasmuch as the chain that should connect his alleged offense with his death was broken by the capture and imprisonment, his death can not be fairly ascribed to causes outside the line of duty. The surrender of him by his commander to the enemy released him from imprisonment and restored him to the line of duty for pensionable purposes. William H. Croup (Asst. Sec. Bussey), 5 P. D., 89. Capture by the enemy while in confinement under arrest places a soldier in line of duty as to disabilities incurred while a prisoner, whether at the time of capture he was with his command or not. Citing William H. Croup, 5 P. D., 89; opinion of Atty. Gen. Cushing, 7 Op., 149. John W. Stamper (Asst. Sec. Bussey), 6 P. D., 12. 8. Injury incurred in attempting to escape from captivity, is in. A seaman, captured by the Tripolitans in 1803, on the frigate Philadelphia, having attempted, after fifteen months of captivity, to recover his liberty and join an American squadron then in harbor at Tripoli, was retaken and bastinadoed so severely as to be rendered incapable thereafter of performing a seaman's duty: Held, That he was in line of duty and pensionable under the act of April 23, 1800. Atty. Gen. Wirt, 1 Op., 461. 9. Assault, injuries resulting from. (a) When in line of duty. Colonel Vimont, while engaged in the performance of duty, was approached by an officer of inferior rank, who made improper demands of him concerning some remarks which had been made to another officer. Upon Colonel Vimont's declining to yield to those demands he was assaulted, and a quarrel ensued, during which he received injuries which caused his death: Held, That he was in line of duty, and his widow's claim for pension should be allowed. Mary Jane Vimont (Sec. Harlan), 5 L. B. P., 432. Adhered to on reconsideration. Ibid., 445. The soldier while performing his assigned duty of currying and feeding horses was mistaken for another person by a comrade who, coming up behind him unobserved, struck him on the head with a billet of wood: Held, The assault being without provocation or justifiable cause, soldier was in line of duty for pensionable purposes when struck. Citing William M. Ammerman, 3 P. D., 1, overruling same case, 1 P. D., 5; 9. Assault, injuries resulting from-Continued. (a) When in line of duty-Continued. William Jones, 3 P. D., 16, overruling same case, 1 P. D., 87. While soldier was watering horses, on which duty he had been detailed, he was assaulted, without any provocation on his part, and severely beaten by a comrade: Held, That he was in line of duty for pensionable purposes, overruling former decision, L. B. (Qa), 413, and citing William M. Ammerman, 3 P. D., 1; William H. Brokenshaw, ibid., 11; Zenas Ham. ilton, ibid., 3; William Jones, ibid., 16. Joseph Zerback (Asst. Sec. Bussey), 4 P. D., 215. (b) When not in line of duty. The soldier having been, while asleep in his bunk, mistaken by a comrade for another person and struck by said comrade a severe blow with a saber, he was not in line of military duty. Citing and following William M. Ammerman, 1 P. D., 5; William Jones, ibid., 78; W. H. Brokenshaw, ibid., 194; William H. Pike, ibid., 253; Carroll M. Wagoner, ibid., 329; Alexander Gillespie, 2 P. D., 16; Jesse M. Stilwell, ibid., 83; Mary A. Compton, ibid., 129. James Harding (Asst. Sec. Hawkins), 2 P. D., 232. Overruled in principle; 4 P. D., 31, 215. 10. Malpractice-surgical operation in hospital. A soldier when put in hospital for medical treatment is in line of duty, and a surgical operation performed upon him by the surgeon of the hospital is a legitimate incident of the service. It is held, therefore, that the injurious results of a surgical operation in hospital are incurred in the line of duty and may be pensionable, the surgeon being responsible as the official agent of the Government. Charles T. Caldwell (Asst. Sec. Bussey), 3 P. D., 37. 11. Negligence. (a) When injury due to, is regarded as received in line of duty. Reconsidered and overruled: 7 P. D., 376. (b) When injury due to, is not regarded as received in line of duty. Where a soldier allowed his gun to remain loaded at a time forbidden by the regulations of the service, and was injured in consequence thereof, he is not pensionable on account of such injury. David B. Champion (Sec. Harlan), 5 L. B. P., 294. |