13. Pistol wound-Continued. (a) By a weapon not authorized by Army regulations-Continued. enlisted, furnishes, in the absence of proof to the contrary, conclusive ground for the presumption of contributory negligence, and is not pensionable, because not attributable to the line of duty. Samuel Emmett (Asst. Sec. Bussey), 3 P. D., 281. Claimant, an infantry soldier, purchased a pistol, and while exhibiting it in camp it was accidentally discharged in the hands of a comrade, the contents entering claimant's breast: Held, That such a firearm not being a part of the arms and accouterments prescribed by the Government for an infantry soldier, he carried it at his own risk, and if he received a wound it can not be held to have been received in the line of duty. Elias W. Reidy (Asst. Sec. Reynolds), 7 P. D., 132. (2) When in line of duty. The claimant, an infantry soldier, on arriving at the regimental recruiting camp found the army was expected to advance soon. They were without arms, and he, while cleaning his revolver, his own private property and the only weapon he then had, accidentally discharged it, wounding himself: Held, That though at the time of injury he was not acting under any order nor in violation of any order, he was in the place of duty, the act in which he was engaged had a proper connection with his duty as a soldier, and, in the absence of evidence to the contrary, it must be presumed that he exercised ordinary care. He was, therefore, in line of duty, and is pensionable. William D. Kinnerson (Sec. Teller), 9 P. D. (0. s.), 299. If the weapon, not an arm of the service to which soldier belonged, was carried in contravention of or without authority from his superior officer, an injury received in consequence is without the line of duty, and if such a weapon is carried, not in violation of an order, and carrying it is not inconsistent with good military discipline, an injury received in consequence thereof may be in line of duty, dependent upon all the circumstances of the case. Modifying Robert M. Dick, 3 P. D., 33. William F. Wescott (Asst. Sec. Bussey), 6 P. D., 226. (b) When weapon carried by permission of commanding officer. An infantry soldier injured by a pistol, knife, or sword, or any other arm than musket or bayonet, which he was carrying by permission of his superior officer, is not pensionable on account of such injury; but might be if he was carrying it by order of such officer, if the officer was competent to so order. Opinion in William H. Pike, 1 P. D., 253, adhered to. George M. Beeler (Asst. Sec. Hawkins), 2 P. D., 116. 13. Pistol wound-Continued. (b) When weapon carried by permission of commanding officer-Continued. Where it appears that at the time the soldier incurred an accidental pistol-shot wound he was carrying said weapon by the express permission and even suggestion of his captain for foraging purposes, the said accidental wounding, if without any apparent fault on soldier's part, will be held as due to the line of duty. Lewis Summers (Asst. Sec. Bussey), 3 P. D., 372. (c) When carried by a teamster. A pistol-shot wound, caused by accidental discharge of the weapon while the soldier was engaged in cleaning the same for use in performance of special service as a teamster in the quartermaster's department, being unattended by contributory negligence, is held to have been in the line of duty for pensionable purposes. Joab Truce (Asst. Sec. Bussey), 5 P. D., 14. 14. Scuffle, injuries incurred as a result of. (a) When not in line of duty. Soldier, while very much intoxicated, was wrestling with one of his comrades, and a pistol was dropped by one of them which exploded, causing wound: Held, That disability was not contracted in the line of duty. George Stowers (Sec. Delano), 1 P. D. (o. s.), 352. Soldier is not in line of duty while engaged in a voluntary scuffle, and claim for pension on account of a disability so contracted should be rejected. William J. McPherson (Sec. Schurz), 5 P. D. (o. s.), 47. When injury was received in consequence of charging upon a fellow-soldier, in accordance with a "playful custom" which appears to have existed in the regiment, with a view to unhorsing him, it is held that the disability was not incurred in the line of duty. Thompson W. McKee (Actg. Sec. Bell), 6 P. D. (0. s.), 83. An injury received while voluntarily scuffling with a comrade was not incurred in line of duty, but if the soldier was forced into the contest in self-defense or was tripped up unawares the case would be different. John Brown (Sec. Schurz), 8 P. D. (o. s.), 60. Where soldier, while leaning upon a banister, was pushed over and injured by two scuffling comrades, said injured soldier not being at the time in the performance of any military duty or service, he was not in the line of duty when so injured. William Jones (Asst. Sec. Hawkins), 1 P. D., 87. Contra: s. c., 3 P. D., 16. 14. Scuffle, injuries incurred as a result of-Continued. (a) When not in line of duty-Continued. The cause of disability giving title to pension must in some manner pertain to, and have a natural and logical connection with, the military service and to line of duty in said service, but a soldier injured by some of his comrades who were at the time engaged in play is not considered as having been in line of duty, such play having no connection with the service. William M. Ammerman (Asst. Sec. Hawkins), 1 P. D., 5; Carroll M. Wagoner (Asst. Sec. Hawkins), ibid., 338. Overruled: 3 P. D., 1. Claimant was standing witnessing some comrades jumping, when one of the jumpers accidentally let his weight slip from his hand and it struck claimant on the head over the right eye, injuring him severely. It was held that the soldier was not in line of duty under the rule announced in William M. Ammerman, 1, P. D., 5; William Jones, ibid., 87; W. H. Brokenshaw, ibid., 194; James E. Friel, ibid., 329; Carroll M. Wagoner, ibid., 338; Alexander Gillespie, 2 P. D., 16; Jesse M. Stilwell, ibid., 83; James Harding, ibid., 232. Stephen G. Case (Asst. Sec. Hawkins), 2 P. D., 345. A soldier, while walking with a comrade within the camp limits, got to scuffling with him, each in play striking at the other and trying to trip the other up, which the comrade finally did to soldier; the soldier fell, with the comrade on top of him, breaking his leg: Held, That soldier was not in line of duty; distinguishing this case from Alexander McNiel, 3 P. D., 26, in that the soldiers in that case were wrestling as a matter of athletic sport and exercise, with the consent and approbation of their commanding officers, and conducted themselves in a manner not unseemly or unsoldier like or calculated to disturb or transgress military discipline, while in this case none of these circumstances existed, the soldiers being engaged in a foolish, senseless, dangerous scuffle-disorderly, unseemly, and unsoldierlike, and in subversion of good order and military discipline. William Welsh (Asst. Sec. Bussey), 4 P. D., 279. An injury received while a soldier was scuffling in a hospital in which he was employed as cook was not incurred in line of duty, although the certificate of disability upon which he was discharged states that such injury was received in the line of duty. Mary A. Wilson (Asst. Sec. Bussey), 6 P. D., 222. (b) When in line of duty. A soldier in his proper place in camp who was pushed over another soldier and injured without fault or neglect on his part 14. Scuffle, injuries incurred as a result of-Continued. was in the line of duty. Overruling s. c., 1 P. D., 5. William Where soldier, a member of the guard, while standing against a rail or balustrade eating his ratious at dinner time, immediately in front of his quarters, was pushed or thrown backward over said balustrade by two comrades, who engaged in a scuffle to which the soldier did not contribute, and the latter thereby incurred injuries: Held, That the injuries were received in the line of duty for pensionable purposes. William Jones (Asst. Sec. Bussey), 3 P. D., 16. A soldier having received in the service, during a friendly wrestle with a comrade, the injuries which subsequently caused his death: Held, That, there being neither malice nor bad blood about the affair, the injuries being purely accidental and not contrary to the rules and regulations of the service, the said injuries were incurred in the line of duty for pensionable purposes. Mary E. McNeil (Asst. Sec. Bussey), 3 P. D., Overruled: 7 P. D., 376. : 6. The Government can not be relieved of responsibility for the injuries incurred by the soldier in line of duty while it is faithfully pursued; and where a soldier in the service incurred an injury as the accidental result of a scuffle, in which he was not a participant and to which he did not contribute, he is held to have been in the line of duty for pensionable purposes. Jacob · Bowersmith (Asst. Sec. Bussey), 3 P. D., 303. 15. Target practice, injuries received at, in line of duty. An injury received without contributory negligence upon the part of the soldier while he is engaged in target practice, under authority, express or implied, of his superior officer, is incurred in line of duty; and it is immaterial whether the instrument then used under such authority be a pistol, a musket, or any other arm pertaining to the service. William F. Wescott (Asst. Sec. Bussey), 6 P. D., 226. 16. Violation of orders, injuries received in, not in line of duty. The line of duty in the service is averse to acts that are forbidden by properly authorized superior officers and that are in violation of military discipline; nor should a claim for pension be granted for disability incurred as the result of a claimant's own willful wrongdoing. General M. Brown (Asst. Sec. Bussey), 3 P. D., 29; Mary Taffe (Asst. Sec. Bussey), ibid., 157. A soldier is not deemed in line of duty, within the meaning of the pension laws, when engaged in the violation of law, or of 13201-22 16. Violation of orders, injuries received in, not in line of duty Continued. any rule, order, or regulation of the military service. Vincent When soldier was shot by his superior officer for refusing to obey his order, he can not be pensioned for disability due to said gunshot wound, for the reason that said wound was not incurred in line of duty. Ibid. 17. Death, when and when not due to line of duty. (a) From explosion of a shell caused by soldier-not in. Where soldier was killed in camp by the explosion of a shell from which he had removed the fire plug, thus causing the explosion: Held, That he was not in line of duty. Mary O'Donald (Sec. Delano), 8 L. B. P., 432. (b) From eating green apples is in. Death in service from eating green apples is in line of duty. Anastatia Caile (Actg. Sec. Cowen), 1 P. D. (o. s.), 42. (c) While bathing without express orders not in. The widow of a soldier who was accidentally drowned while bathing, is not pensionable unless he was acting under express military orders. Ann Kelley (Actg. Sec. Gorham), 6 L. B. P., 11; Priscilla W. Murray (Actg. Sec. Gorham), 4 P. D. (o. s.), 122. (d) By suicide, when not in. It being alleged, but not shown, that this soldier was insane at the time he committed suicide while in service, by jumping overboard at Fort Monroe, on return from imprisonment, it is held that the rejection of his widow's claim was proper. Catherine Spangy (Sec. Delano), 1 P. D. (o. s.), 133. Where the claim of a widow is based upon allegation that the soldier was insane when he committed suicide, while in service, it is not sufficient to show that the soldier was insane, but it must be made to appear that his insanity resulted from causes to which he was subjected in the line of duty. Margaret A. Berry (Actg. Sec. Bell), 7 P. D. (o. s.), 164. (e) From a cause unknown, presumed to be in. The soldier being found one morning in the river near camp nearly frozen, from which exposure he died four days there. after, he being shown to have been a man of steady habits and that there was no opportunity for obtaining intoxicating liquors in camp, it is held a minor claimant should be given the benefit of the doubt, and the soldier held to have been in line of duty. Minors of Jackson A. Brewer (Sec. Delano), 2 P. D. (o. s.), 430. See also EVIDENCE; FURLOUGH; ORIGIN; PRACTICE (Vi cious Habits); SERVICE. |