81ST CONGRESS 1st Session HOUSE OF REPRESENTATIVES REPORT No. 181 ADOLPHUS M. HOLMAN MARCH 1, 1949.-Committed to the Committee of the Whole House and ordered to be printed Mr. DENTON, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 1121] The Committee on the Judiciary, to whom was referred the bill (H. R. 1121) to confer jurisdiction upon the United States District Court for the District of New Mexico to hear, determine, and render judgment upon the claim of Adolphus M. Holman, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. The purpose of the proposed legislation is to confer jurisdiction upon the United States District Court of the District of New Mexico to hear, determine, and render judgment upon the claim of Adolphus M. Holman, of Las Cruces, N. Mex., for personal injuries and property damage sustained as a result of an accident on September 28, 1942, when the car in which he was driving was struck by a United States Army vehicle on the highway near Alamogordo, N. Mex. STATEMENT OF FACTS A bill has been pending in Congress for several years to grant relief to Mr. Holman. The Committee on Claims reported a bill favorably to the House and the Committee on the Judiciary reported a bill favorably to the House during the Eightieth Congress for a direct appropriation of $3,500. These bills were objected to on the floor of the House and were recommitted to the committees in both the Seventy-ninth and Eightieth Congresses. This bill (H. R. 1121) is to confer jurisdiction upon the court to consider this claim. The evidence contained in the file is very conflicting and your committee is of the opinion that Mr. Holman is entitled to his day in court and therefore recommends the enactment of this bill. The record shows that Mr. Holman is a man of excellent reputation, and that depending on his wages as a carpenter for the support of his family, the accident has left him destitute. The circumstances in the case are such as to appeal to compassion. It appears that on the evening of September 28, 1942, two Army cargo trucks, on official business, were en route from Biggs Field, Tex., to the Alamogordo Air Base at Alamogordo, N. Mex. About 12:45 a. m., on September 29, 1942, while these trucks were proceeding in a northerly direction on United States Highway No. 54, a 1937 Oldsmobile coupe owned and operated by Adolphus M. Holman, who was accompanied by his son-in-law, Mike Schilling, approached from the opposite direction. There is considerable dispute about the testimony. The drivers of the two Army trucks claim that they dimmed their lights and signaled by blinking a request to the approaching civilian driver to switch to his dim lights, but that the civilian driver did not turn on his dim lights until he had approached to a point within a short distance from the first Army truck. They also claim that the dim light on the left side of Mr. Holman's car was out, and he continued down the road with only one dim light burning; that drivers of the two Army trucks turned as far as possible to their right in an effort to avert a collision; that the first Army truck, driven by Second Lt. Hugh G. Gardner, missed the civilian car. They claim, however, that after passing the first truck Mr Holman's car continued to bear to its left and as a result thereof it struck the left front wheel and left side of the second truck. On the other hand, the claimant stoutly maintains that the first truck did dim his lights but that the second truck did not do so, that he was blinded, and that this was the cause of the accident. He not only denies that there was a light out on his car, but points to the fact that just before they started on the trip the lights were examined and a new bulb installed. There is also some testimony to the effect that they had wine in the car, but both occupants of the civilian car deny that the driver, Mr. Holman, was under the influence of liquor. The best evidence which could have been procured as to whether or not Mr. Holman was under the influence of liquor is the evidence of the doctors at the Army hospital to which he was taken immediately afterward. Mr. Holman attempted to get a statement from the hospital to show that he was not under the influence of liquor. This was denied to him on the grounds that they could not furnish testimony unless authorized by the War Department. The War Department was in position to obtain and furnish the committee this evidence. If the examination of the injured civilian driver had disclosed that he was under the influence of liquor when admitted to the hospital immediately after the accident, such testimony could have and would have undoubtedly been made a part of the record. The report of the War Department dated August 28, 1943, states that Mike Schilling said they had been drinking. However, in an affidavit signed by Mr. Schilling, dated October 21, 1943, he denies that he ever made any such statement to the authorities. Also, in this affidavit it is stated that they had not been drinking. This statement is verified by an affidavit by Mr. Holman. They both state that the cause of the accident was due to the driver of the Government vehicle not dimming his lights, thus blinding the driver of the civilian car and causing the accident. In a letter dated December 10, 1942, from Dr. W. D. Sedgwick, Mr. Holman's injuries are diagnosed as follows: A simple fracture of the left tibia in the middle third; a simple fracture head of left tibia and thrombophlebitis left leg. After hospitalization for a few days a cast was applied. He was dismissed from the hospital October 11, 1942, and instructed to return periodically for observation. About December 3, 1912, the cast was removed from his leg. At that time there was still an incomplete union of the fracture side and thrombophlebitis. It is the opinion of your subcommittee that the Government driver was negligent in not dimming his lights when a car was approaching from the opposite direction. The committee recommends favorable consideration to the bill. Hon. DAN R. McGEHEE, WAR DEPARTMENT, Washington, D. C., August 28, 1943. House of Representatives, Washington, D. C. DEAR MR. MCGEHEE: The War Department is opposed to the enactment of H. R. 2674. Seventy-eighth Congress, a bill which would authorize and direct the Secretary of the Treasury to pay to Adolphus M. Holman, of Las Cruces, N. Mex., the sum of $5,846.92, in full satisfaction of his claim against the United States for property damages and personal injury sustained by him on September 28, 1942, when a car driven by said Adolphus M. Holman was struck by an Army truck of the United States on the highway near Alamogordo, N. Mex. On the evening of September 28, 1942, two Army cargo trucks, on official business, were en route from Biggs Field, Tex., to the Alamogordo Air Base at Alamogordo, N. Mex. About 12:45 a. m., on September 29, 1942, while these trucks were proceeding in a northerly direction on United States Highway No. 54 about 20 miles from Alamogordo, a 1937 Oldsmobile coupe owned and operated by Adolphus M. Kolman, who was accompanied by his son-in-law, Mike Schilling, approached from the opposite direction traveling in the middle of the road. The drivers of the two Army trucks dimmed their lights and signaled by blinking a request to the approaching civilian driver to switch to his dim lights, but the civilian driver did not turn on his dim lights until he had approached to a point within a short distance for the first Army truck. The dim light on the left side of Mr. Holman's car was out, and he continued to proceed down the middle of the road with only one dim light burning. The drivers of the two Army trucks turned as far as possible to their right in an effort to avert a collision. The first Army truck, driven by Second Lt. Hugh G. Gardner, missed the civilian car. However, after passing the first truck Mr. Holman's car continued to bear to its left and as a result thereof it struck the left front wheel and left side of the second truck operated by Sgt. Lloyd F. Eby. The civilian car came to a stop about 8 or 10 feet beyond the point of the collision. As a result of the collision the Army truck operated by Sergeant Eby was damaged to the extent of $358.82. Mr. Holman's car was damaged to the extent of approximately $400, and he is reported to have sustained a multiple fracture of his left leg and minor cuts and bruises. It does not appear that anyone else was injured in the accident. No medical evidence has been furnished showing the nature and extent of the injuries sustained by Mr. Holman, and no evidence has been furnished showing the amount of his medical and hospital expenses. Furthermore, no evidence has been furnished as to the amount of any loss in earnings due to the injuries sustained by him in this accident. Mr. Holman in a statement dated October 13, 1942, said: "I was driving my 1937 Oldsmobile coupe south on Highway No. 54 with my son-in-law, Mike Schilling. We were traveling about 40 miles per hour. We were going back to Ora Grande where we were employed as carpenters. We left Alamogordo around 9 in the evening September 28, 1942. We had been in Alamogordo to transact some business with the local No. 1066. On the way back we met two cars; I was watching the center of the road trying to be sure there was clearance. The first car dimmed his lights, and we got by. The second car was right behind the first car and had bright lights. I dimmed my lights, but the second car did not dim his. I kept watching the center of the road to be sure that there was clearance. The next I can remember I was in the Army hospital in Alamogordo. I had not had anything intoxicating to drink that evening." Mike Schilling, who was riding in the car with Mr. Holman at the time of the accident, in a statement dated October 2, 1942, said: "We left Ora Grande about 7 p. m. for Alamogordo, N. Mex., to get some beer and a bottle of wine to bring home. We had two bottles of beer apiece at the Tex Bar. From there we went to a filling station to get a light bulb. We bought two and put one in the right head lamp. We then bought a quart of wine and started back to Ora Grande. When about 12 miles south of Alamogordo on Highway No. 54 Mr. Holman took a couple of swallows of the wine. I did not take a drink. We kept on going toward Öra Grande at about 45 miles per hour. After about 8 miles we met two cars coming about 75 yards apart. The first car dimmed his lights and we passed him. The second car did not dim his lights. I do not know whether Mr. Holman dimmed his as the other car lights were so bright. I told the driver that he was going to hit so I ducked my head and the cars hit. Mr. Holman kept asking for a drink after the accident as he was freezing. The wine could not be found. The soldiers gave their coats to Mr. Holman to keep him warm. When I told Mr. Holman that he was going to hit the car he pulled to the right and as the road was rough he pulled to the left and the lights blinded him and he went too far to the left and the cars hit." Second Lt. Hugh G. Gardner, the driver of the leading Army truck, stated: "I was driving the first truck, and Sergeant Eby in the other truck had been given orders to stay at least 300 yards behind me. The Oldsmobile coupe that figured in the accident was approaching from the north, and when he dimmed his lights, the light on the left front went out completely. He was traveling in the middle of the road, and it was necessary to drive the truck completely off the road to avoid an accident. I returned to the road after he passed and continued on. A short time later I noticed that the other truck was not following me, and turned around and went back to the scene of the accident. "Both Sergeant Eby and Private Gillick had climbed clear of the overturned truck by this time and both men were also out of the car. Another car stopped, and promised to send an ambulance down from Alamogordo. "The passenger in the other car (Mr. Schilling) did not try to hide the fact that they had been drinking. He said that when they left the bar in Alamogordo, he wanted to drive because his father-in-law, the driver, was too drunk. He also said that he knew that they were going to hit the truck and was surprised that they had missed the first one. His conversation and his actions showed that he was undoubtedly under the influence of alcohol. In the course of the evening he bragged about how much liquor he had consumed." Sgt. Lloyd F. Eby, the driver of the second Army tuck, stated: "At about 20 miles south of Alamogordo, an Oldsmobile coupe approached us and the driver would not dim his lights until about 50 feet away, and had only one light; the left light being out. At about 40 feet away, he swerved sharply to the left, and I had neither time nor room to avoid collision. The civilian car struck our truck at the left front wheel, removing it, then plunged under the bed, damaging the left rear wheel. The car stopped about 8 feet from the point of impact. The truck swerved sharply across the road, overturned on its right side and stopped about 50 feet from the point of impact. The brake line was cut and the steering gear was broken. The motor wsa racing; so I turned off the ignition and climbed out. "I went back to the other car and helped the driver get out. He had a broken leg and a badly lacerated forehead. The lone passenger was out of the car suffering only a few small cuts. "This passenger, son-in-law of the driver, said that the driver was a persistent drinker, and that they had been drinking beer in a grill at Alamogordo. Both occupants of this car smelled strongly of liquor, and the passenger vomited a few minutes after the accident. He said that they had a bottle of liquor in the car. This bottle was later found about 19 feet out in a field. He also said that he told the driver they were going to collide, but that the driver kept turning toward the truck. He was so intoxicated that it was difficult for him to speak coherently." Pvt. John J. Gillick, who was riding in the second Army truck at the time of the accident, stated: "We signaled for dim lights, which he (Mr. Holman) refused to do until within 50 feet of our vehicle. He then dimmed his lights. His car only had one light, his left light being out of order He was riding in the center of the road and made it impossible for us to stay on the road. We swung for the edge of the road as far as we could have possibly gone. His car followed us over at a high rate of speed and then struck our truck on the left side, taking our left front wheel off and cutting our brake line; thus making it impossible to control our truck. We went about 10 feet, then tipped over on our right side, oversliding on the road for another 15 feet, and then coming to a halt. I then climbed out of the right window, while the other man climbed out of the left window. Neither man was hurt-just shaken up a bit. "We then went to the second car and found one man hurt. He was getting out of his car when a second passenger appeared. He had a few cuts and bruises. They were both drunk and one told me that they both had been drinking in some tavern, and also met the town sheriff while drinking in this tavern. They also had a quart of wine which we looked for and could not find. "This one man, a passenger in the car, was explaining to me that he informed the driver that he was riding the center of the road and would hit the truck, which he did. He also told me they had been drinking wine. This same man also told me they had been driving reckless and speeding when they collided with our truck. He said he continually asked the driver, his father-in-law, to slow the car down or let him drive. He also vomited while talking to us. It was a very clear night but dark. as the moon was not up. The road was a two-lane highway, very straight and smooth, with no obstructions of any kind." A demand was made upon Mr. Holman by the commanding officer, Army air base, Biggs Field, Tex., on January 28, 1943, for the sum of $358.82, the amount of the damage caused to the Government vehicle, which demand he has failed to comply with. Inasmuch as the evidence fairly establishes that the sole cause of the collision and resulting injury of Mr. Adolphus M. Holman and the damage to his automobile was his negligence in carelessly driving on the wrong side of the road, and as the evidence further shows that the driver of the Army vehicle involved in the accident made every possible effort to avert a collision, it is the view of the War Department that the United States is neither legally nor morally responsible for the accident and that the proposed legislation should not be favorably considered. 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, ROBERT A. LOVETT, AFFIDAVIT STATE OF NEW MEXICO, County of Dona Ana, ss: Personally appeared before the undersigned, authority to administer oaths of this nature, one Mr. A. M. Holman of Las Cruces, N. Mex., who after being duly sworn states I was driving my 1937 Oldsmobile coupe south on Highway No. 54 with my son-in-law, Mike Schilling, we were traveling about 40 miles per hour. We were going back to Oro Grande where we were employed as carpenters. We left Alamogordo around 9 in the evening September 28, 1942. We had been in Alamogordo to transact some business with the Local No. 1066. On the way back we met two cars; I was watching the center of the road trying to be sure there was clearance. The first car dimmed his lights, and we got by. The second car was right behind the first car and had bright lights. I dimmed my lights, but the second car did not dim his. I kept watching the center of the road to be sure that there was clearance. The next I can remember I was in the Army hospital in Alamogordo. I had not had anything intoxicating to drink that evening. Further deponent saith not. (Signed) A. M. HOLMAN. Subscribed and sworn to before me on this the 2d day of October 1942. [SEAL] (Signed) R. R. POSEY, Notary Public, Dona Ana County, State of New Mexico. My commission expires January 23, 1946. MCBRIDE CLINIC, Las Cruces, N. Mex., December 10, 1942. Mr. R. R. POSEY, Las Cruces, N. Mex. DEAR MR. POSEY: Mr. A. M. Holman was admitted to this hospital September 29, 1942, following an accident allegedly between the car in which he was riding and an Army truck. He was given first aid at Alamogordo the day before admittance to this hospital. |