#### HANS PETER GUTTORMSEN v. THE UNITED STATES.

[Congressional,

12733.

Decided March 9, 1908.]

*On the*Proofs.

The claim referred is for injuries suffered by a day laborer employed on a public work. The reference is by a bill referred by the Senate under the Tucker Act. The court finds all the specific facts, but does not pass upon the legal or mixed question whether the claimant was without fault. The Senate then refers a second bill for the same claim, accompanied by a resolution propounding interrogatories founded upon a supposed legal liability of the *Government for the*claimant’s injuries.

I. A second trial can not be obtained by a rereferenee of a bill by one of the Houses of Congress under the Tucker Act, 3d March, 1887, unless the previous findings were procured by malpractice or false testimony.

*300II. Congress have not recognized the liability of the Government for the negligent conduct of its agents. There being no legal liability for injuries suffered by an employee caused by the negligent conduct of government agents, the question of relief is wholly a matter of legislative discretion.

III. The court in a congressional case can not make a finding which will tend to fasten a legal liability on the Government when none exists. A finding involving a conclusion of law is not a proper finding in such cases. Congress must determine the question of liability on the specific facts.

*The Reporters'1*statement of the case:

This is a claim for alleged permanent injuries received by the claimant in November, 1880, while in the employ of the United States as a laborer, and for medical attendance, nursing and medicines required in the treatment of said injuries.

The claim was first referred to the court by resolution of the House of Representatives December 19, 1904, under the act of March 3,1887, and numbered 11730 congressional. On December 4, 1905, the court filed findings of fact in favor of the claimant in the sum of $5,000, which findings were, on December 12, 1905, certified to Congress.

Thereafter, on January 19,1907, the House of Representatives, by resolution, referred to the court under the act of March 3,1887, a bill in the following words:

‘(Fifty-ninth Congress, first session.)

“ IT. K. 13870. A bill for the relief of Hans Peter Guttormsen.

“ *Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the United States Treasury not otherwise appropriated, the sum of five thousand dollars to Hans Peter Guttormsen, of the city of Kenosha, county of Kenosha, State of Wisconsin, said sum of five thousand dollars having been allowed him by the Court of Claims on the fourth day of December, anno Domini nineteen hundred and five, as set forth in Document numbered one hundred and seventy-four of the Fifty-ninth Congress, first session, of the House of Representatives.”

The claimant appeared and filed his petition in this court February 14,1907, in which the following substantial allegations are made:

*3011. That be is a citizen of the United States and a resident of the city of Kenosha, in the county of Kenosha and State of Wisconsin.

2. That in the month of April, 1875, he resided in Nock Island, in the State of Illinois, and entered into the employment of the Government of the United States, under the War Department thereof, as a laborer, at a compensation of $1.50 per day, which was subsequently increased to $2 per day, and worked continuously in the employment of said Government from the date aforesaid until November 6, 1880, at which time he received the permanent injuries herein complained of, and in the manner as hereinafter stated.

8. That on the said date, November 6, 1880, the petitioner was engaged in his daily labor under the control and direction of the proper officers and authorities of the War Department of the United States Government, and without any fault or negligence whatever on his part, but wholly on account of the negligence of the officers of the United States who had control of and directed the actions of the petitioner in the performance of his said labor for the Government, the said petitioner received and sustained, as he now avers, serious, dangerous, and personal permanent injuries, under the following circumstances and conditions, namely: That when the petitioner was at work under the direction of the authorities of the War Department, as aforesaid, on the construction of a breakwater on the Mississippi River, near Moline, Ill., the stone walls of said breakwater having been completed to a height of 40 feet, and the trestlework and scaffolding having been erected over and upon which materials were to be carried for said work, and planks for the covering or flooring on said trestlework had been hoisted thereon and a portion of the flooring laid on the said scaffolding and trestlework, the said petitioner was ordered by his foreman on the work to carry, lay, and string along and on the said trestlework planks that were very heavy and 16 feet in length; that while carrying one of these heavy planks he stepped on one of the planks that had already been laid down, as aforesaid, which broke, and precipitated him, with the heavy plank he was carrying, through the trestle to the bottom of the structure, a distance of about 40 feet, into a large mortar box, breaking five of his ribs near his spinal column, breaking his left leg in three places, breaking the third finger of his right hand, splitting and tearing the flesh on his head and face, and injuring him generally in such a manner that he was unconscious for two weeks, and that as a result of such injuries he was confined to his bed for more than a year and has been left by reason thereof a *302permanent cripple, and rendered incapacitated for the performance of manual labor for the remainder of his life, and has expended large sums of money for surgical and medical attendance and for services of trained nurse.

That the plank upon which he was walking, and which broke with the results as aforesaid, was old, rotten, weather-beaten, and unfit for the use to which it had been put, the government authorities having negligently suffered and permitted to be used, in the erection and construction of said scaffolding and trestlework rotten and defective material, of which the said plank was a part, all of which was unknown to the petitioner at the time. That at least one other injury, fatal in its result, occurred to another laborer on the same work and from the same cause.

4. That no payment or compensation has ever been made to the claimant, or to any other person in his behalf, on account of this claim.

The court, upon the evidence, made the following findings of fact:

I. In the month of April, 1875, Hans Peter Gruttormsen, claimant, entered the employ of the United States as a laborer, in connection with the construction of a dam and breakwater at or near Rock Island, in the Mississippi. Claimant continued in such employ up to and including November 6,1880, at a compensation of $1.50 per day during part of said period and $2 per day during the remainder of said period.

II. On November 6, 1880, claimant, as such laborer, was engaged, along with five or six other workmen, in laying a plank floor on a trestle about 12 feet wide at the top and about 35 or 40 feet from the ground. The bents of said trestlework were about 6 feet apart. The plank used in laying said floor were hoisted to the top of the trestle at one end thereof, loaded on to a car or truck, and wheeled along the trestlework to a point near where the floor was being laid. While carrying a plank about 16 feet long, 1 foot wide, and 2 inches thick, from said car forward to lay the same on the trestlework, claimant stepped upon a plank which had been previously strung from bent to bent of said trestle and started to walk along the same, when it broke, precipitating him to the ground, 35 or 40 feet below. In lighting, claimant struck a plank mortar bos and rock, *303breaking five of bis ribs near the spinal column, fracturing his leg in three places, breaking the third finger of his right hand, bruising and lacerating the flesh of his head and face, and otherwise injuring him, so that he was unconscious for about two weeks thereafter. As a result of said injuries, claimant suffered great physical pain and agony and incurred large expense for medical care and attendance and for the services of a nurse, and has ever since been a permanent cripple, unable to perform manual labor of any kind.

III. In 1883 or 1884, claimant reported his condition to Col. W. D. Flagler, the United States officer in charge of the arsenal at Eock Island. Colonel Flagler, having been the officer in charge at said arsenal at the time claimant received the injuries aforesaid, gave claimant a position as watchman at the arsenal, at $1.50 per day, which position he held for two or three years, and performed his duty by sitting in a chair. Another commanding officer then came to said arsenal, who dispensed with the services of claimant, informing him at the time that the Government did not make appropriations to pay cripples. This is the only work claimant has performed and the only money he has earned since the date of his injuries, November 6, 1880.

IV. The plank used for the purpose of constructing the floor on top of the trestle in question were old weather-beaten and unfit for the purpose for which they were being used. They had been in use in the arsenal building, and some of them had been used for dumping stone on. Claimant was familiar with the condition of the plank, having seen them and walked upon them while they were located at the arsenal building. The plank which broke under claimant’s weight had been unloaded from the car or truck from which claimant had taken the plank he was carrying. Five or six other laborers were engaged with the claimant at the time in the work of unloading the. plank from said truck or car and stringing the same on the trestle. No foreman, or other officer or agent of the United States, was present at the place where the plañir were being unloaded and strung on the trestle at the time the claimant fell as aforesaid. It does not appear from the testimony in this case which of the laborers *304engaged in stringing said plank unloaded and laid the plank which broke with the claimant. Claimant was intent upon the performance of his duty in connection with unloading and stringing said plank, and he did not observe the condition of the plank upon which he attempted to cross from one bent of the trestle to another.

Y. By reason of the injuries received as aforesaid, claimant suffered damage in the sum of five thousand dollars ($5,000.00), no part of which appears to have been paid to him.

*Mr. George G. Haselton*for the claimant.

*Mr. P. M. Ashford*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Booth, J.,

delivered the opinion of the court:

This is the second reference of this bill under the act of March 3,1887, commonly known as the Tucker Act. Under the first reference findings of fact were reported by the court and duly certified to Congress. Under the second reference some additional testimony was taken and presented to the court and some amendment of the findings was asked. The court is precluded from exercising jurisdiction under the second reference of the same bill under the fourteenth section of the Tucker Act unless its prior findings have been procured through the misconduct of the parties, their attorneys or witnesses, or have been based upon false and fraudulent testimony. *(Adolph Hartiens*v. *United States,*42 C. Cls. R., 42.) There is nothing in the record before us bringing this case within the *Hartiens*case, and the court is without authority to change the findings.

The second resolution rereferring the case propounds certain interrogatories to which the court is asked to make answer. The interrogatories so propounded are predicated wholly upon the legal liability of the defendants for the injuries occasioned the claimant as set forth in the findings. The Congress has not recognized the liability of the Government for injuries occasioned by the negligent conduct of its agents. The question of relief is wholly a matter of legislative discretion.

*305The court did not add to its findings that the claimant was without fault, because to have done so would have been a conclusion involving not only the question of an ultimate fact but the law respecting the risk of the claimant as a co-employee with others on the work in which he was engaged.

It is because the claimant has no legal standing that he seeks relief by petition to Congress under the Tucker Act. The facts found in such cases are for the information of Congress, to enable them to determine whether or not the case thereby made is one which appeals to their sense of justice; not justice based on law, nor on the strict rules of equity; but that justice which appeals to the sense of right between men measured by moral rather than legal or equitable rules. The application of such rules is for Congress and not for the court. Therefore, when the court has found the facts in any case referred to it under the Tucker Act and certified such facts to Congress the requirements of the statute have been complied with.

In the case of *Widmayer and Bates*v. *United States*(42 C. Cls. R.), the court said:

> “Precluded as the court is from deciding issues of law pertaining to liability, this report can neither be taken as a judgment nor as an award. Neither is it a recommendation for the payment of anything. It is merely a recital of the proven facts. These facts in their relation to the law only constitute material to enable Congress to create a liability by way of gift at discretion. Consequently, no vested right can be considered as acquired by the recital of facts.”

While the reference in that case was under the Bowman Act the opinion of the court is directly applicable to findings of fact under the Tucker Act. See also the case of *Taylor*v. *United States*(25 C. Cls. R., 75).

This case is a forcible illustration of the limited jurisdiction of the court in references under the fourteenth section of the Tucker Act. We are asked to define the legal status of the claimant under the findings reported. The conclusions thus reported might possibly result in the liquidation of this particular case by an adequate appropriation, and many claimants with equally as good a case, with findings equally as favorable, wherein no conclusions of law appeared, *306fail of success and their claims go unpaid because of our jurisdictional limitations, the court having heretofore reported findings in similar cases, reciting the facts proven, without any discussion of the legal status of the claimant thereunder.

The original findings of this court will again be transmitted to Congress together with a copy of this opinion.