CONGRESSIONAL RECORD -- SENATE November 8

commands to halt. The sentry then

aimed his shotgun at the decedent's legs

and fired. Just at this moment the decedent jumped into a ditch. As a result,

he was struck in the chest rather than

the legs, and was instantly killed.

A board of officers, which subsequently

considered the case, determined that the

sentry's actions had been reasonable

under all of the circumstances. The

board also determined that since the

decedent was known to have been in a

state of mental confusion at the time of

the shooting, his death should be considered to be in line of duty.

The records of Army show that the

regular death gratuity was paid in this

case and that at the time of the decedent's entry into the military service

he was offered but specifically refused

national service life insurance. The decedent's closest survivor seems

to be a sister, who presumably would be

the ultimate beneficiary of the bill. She

Is not entitled to survivorship benefits

under laws administered by the Veterans' Administration, since sisters are not included within the categories of

survivors eligible to receive benefits

under such laws.

Laws administered by the Veterans'

Administration and other Federal agencies provide systems of benefits for certain dependent survivors of members of

the Armed Forces killed in line of duty.

Benefits so authorized are generous and

are payable to the specified survivors

regardless of whether death results from

the negligence or willful misconduct of

fellow servicemeh or any other person.

Under the circumstances, I think it only

fair and reasonable to consider the generous, uniform, and assured protection

which these systems afford as the exclusive remedy against the United States

on account of the death of a member

of the Armed Forces killed in line of

duty. Any other view would be productive of anomalies and serious inequities.

The foregoing view accords with that

taken by the Supreme Court in denying

relief in a negligence case brought under

the Federal Tort Claims Act in which, as here, a member of the Armed Forces

was killed not only in line of duty but

incident to his actual military service.

Such a view is in no sense novel. Military and veterans' survivorship benefits

are the equivalent of civilian workmen's

compensation benefits. The Federal

Government and most of the States have

abolished actions for damages between

employers and employees and superseded

them with workmen's compensation statutes, which provide the sole basis of

liability in most cases.

Additionally, as already noted, the decedent had the opportunity to apply for

a policy of national service life insurance in the maximum amount of $10,000.

He was specifically offered this opportunity, but refused to take advantage of

it, as is indicated by his service record.

Accordingly, while regretting the

tragic death of the decedent, I am

constrained to withhold my approval

from S. 820.

DWIGHT D. EISENHOWER.

THE WHITE HousE, August 31, 1954.

LAWRENCE F. KRAMER

S. 2083. I have withheld my approval

from the bill (S. 2083) for the relief of

Lawrence F. Kramer.

The bill provides for payment to Lawrence F. Kramer of Paterson, N. J., of

the sum of $67,500 in full satisfaction

of his claim against the United States

for (1) compensation for services rendered by him during the period from

1935 to 1952 in assisting and enabling

the United States to prosecute successfully criminal proceedings against certain defendants who had defrauded the

Government in connection with fixed

prices on work projects in the State of

New Jersey, and (2) for reimbursement

for expenses incurred by him in rendering such services.

It appears that in late 1935, Mr.

Kramer complained to the Works Progress Administration concerning the existence of a possible fraud conspiracy,

collusive bidding, and bribery in connection with certain sand and stone supply contracts awarded, and to be awarded, by the Works Progress Administration in northern New Jersey. His sole

information was that his father, Philip

Kramer, operator of a stone quarry at

Paterson, N. J., had been approached by

one George Brooks to participate in the

scheme, and had refused, and that as a

result of his refusal, stone supplied by

him had been rejected by the Works

Progress Administration (apparently due

to the influence of the conspirators),

with the consequence that he suffered

heavy business loss.

As a result of this complaint, an investigation was undertaken by the Government which culminated in the conviction of the lawbreakers in 1941 and

a civil recovery (by way of settlement)

in 1952. Apart from the initial tip concerning the existence of a possible con- spiracy, and the furnishing of the names

of certain persons having knowledge of

the approach made to his father, it does

not appear that claimant contributed

anything to the successful prosecution

and civil recovery.

There is nothing to distinguish this case from any other case in which the

Government receives from a private citi- zen information concerning wrongful action with reference to which criminal

proceedings are brought and civil recoveries are obtained. The vast majority of

such proceedings are made possible by

citizens who either because of their normal interest in law enforcement and

good government, or because of selfinterest supply law enforcement officers

with information of the character here

involved.

Even if claimant were to be treated as

if he had commenced suit as an informer, he would be entitled to no more

than the 10 percent of the civil recovery, whereas the bill proposes to award

him 30 percent of that amount.

DWIGHT D. EISENHOWER.

THE WHITE HousE, August 31, 1954.

GRAPHIC ARTS CORP. OF OHIO

S. 2801. 1 am withholding my approval

from S. 2801, for the relief of Graphic

Arts Corp. of Ohio.

S. 2801 provides that the Secretary of

the Treasury be authorized and directed

to pay the sum of $84,359.19 to the

Graphic Arts Corp. of Ohio, Toledo,

Ohio, in full settlement of all claims of

the said Graphic Arts Corp. against the

United States. The bill would afford

financial relief to the Graphic Arts Corp.

for losses alleged to have been incurred

in the performance of contract W-33-

038i ac-2023 with the Army Air Corps

during the period January 1 to June 1,

1946.

It is the contention of the corporation

that it was not supplied with the full

quantity of work contemplated by the

contract during the contract period, and

that the contractor was assured by representatives of the Army Air Corps that

it would be protected against losses in its

operation under the contract. However,

it appears that the contractor did accept

extensions of time and other amendments to the original contract under various change orders and supplements

pertinent thereto by executing said documents. It is reported that payments totaling $2,029,185.29 were made to the

contractor.

Insofar as furnishing work under the

contract was concerned, it appears that

there was substantial compliance by the

Government within the contract period

as extended.

There is an established rule that a formal written contract entered into on the

basis of negotiations between the parties

merges all such previous negotiations

and is presumed in law to express the

final understanding of the parties. Contract W-33-038 ac-2023, as amended,

was entered into on a fixed-price basis.

It contained no provision for payment of

additional compensation merely because

the contractor might suffer a loss in performance. Hence, while the contractor's

claim is based primarily upon the premise that certain representations were

made by Government officers at the time

the contract was negotiated to the effect

that the Government would protect the

contractor from any loss in performance,

the terms of the contract relating to the

work to be performed and to the prices

to be paid therefor were clear and unambiguous and such extraneous representations, even if established, legally could

not be resorted to for the purpose of imposing an additional obligation on the

Government. If the contractor felt that

the formal contract and change orders

and extensions, et cetera, did not afford

it sufficient protection against losses in

performance, it should not have signed

the contract and accepted the extensions. Having done so, it seems clear

that there is no liability for any further

payment to the contractor, based upon

the contract provisions.

Government audit of the contractor's

records indicates that this corporation,

although claiming a loss of $67,952.31 in

the operation of the Gadi division for

the 5 months' period beginning January

1, 1946, actually sustained a loss of only

$46,213.94 during that period. Of this

amount, the audit report shows only

$29,432.29 was applicable to Army Air

Corps contract W-33-038 ac-2023. Despite this loss of $29,432.29 on this contract for the first 5 months of 1946, the

15840
CONGRESSIONAL RECORD - SENATE

contractor actually earned a profit of

$34,202.86 on the entire contract. The

audit report also discloses that this contractor earned a profit of $392,329.15 on

all other Government business for the

years 1944, 1945, and the first 5 months

of 1946. Its commercial business during

the same period also operated at a substantial profit.

My approval of this bill would establish

the undesirable principle of Government

underwriting any wartime losses incurred

by contractors providing goods and services to the Government, regardless of

the fact that such contractors did not

sustain a net loss. I am unable to perceive any circumstances which would

warrant preferential treatment for the

claimant to the detriment of other wartime contractors. I am satisfied that it

is my duty to oppose this bill.

Although my examination of the record

In this case does not lead me to believe

that there is an equitable basis for this

claim, it is possible that a court through

judicial processes might be led to determine otherwise. In complex situations

like this one, it is my opinion that judicial rather than legislative remedy

should be sought. I would, therefore, be

willing to give my approval to a jurisdictional bill waiving the bar of any

statute of limitations against the claim.

DWIGHT D. EISENHOWER.

THE WHITE HOUSE, August 31, 1954.

On September 1, 1954:

MRS. MERLE CAPPELLER WEYEL

S. 45. I am withholding my approval of

S. 45, a bill for the relief of Mrs. Merle

Cappeller Weyel.

-This enrolled enactment would pay

the sum of $5,437.21 to Mrs. Merle Cappeller Weyel in full settlement of her

claim arising out of the death of her husband after his release from active duty in

the Navy in 1948.

The husband of the beneficiary of this

bill was recalled to active duty in 1947,

after having been retired following the

completion of 30 years of service. Prior

to his release from this tour of duty, he

was given a particularly thorough physical examination because of indications

that he might be suffering from highblood pressure. However, a board of

medical survey determined, as a result

of this examination, that he was physically qualified for release from active

duty, and he was accordingly again returned to his retired status in February

1948.

Subsequently, this officer was treated

and X-rayed by a private physician in

September 1948. The X-ray disclosed

that he was suffering from a malignancy

which caused his death in December

1948, after two unsuccessful operations

in private hospitals.

This deceased officer's case was twice

considered by the Board for the Correction of Naval Records, which was established by statute to correct records where

this was necessary to remove an injustice. It was contended by the beneficiary that the malignancy should have

been discovered at the time her husband

was released from active duty and that.

if it had been discovered, he would have

been kept on active duty until his death.

On the basis of this, it was further contended she was entitled to be paid the

usual death gratuity, the difference between her husband's active and retired

pay for the period between his release

from active duty and his death and the

amount of private medical and hospital

expenses incurred on his behalf. The

present measure is based on these same

contentions.

After twice reviewing the case, the

Board concluded that it was to be presumed that the malignancy had existed

at the time the decedent was released

from active duty and that, had its existence been discovered, he would not have

been released at the time he was. However, the Board concluded that the decedent would not have been kept on active duty until his death, but in all probability would have been retired for physical disability not later than July 1948.

I can perceive no justification for the

payment which the bill would make on

account of the cost of private medical

and hospital care incurred on behalf of

the decedent. He was, at all times, entitled to such care at facilities operated

by the Navy Department. There is no

showing that any attempt was made to

take advantage of these facilities. But,

on the contrary, it appears that, for personal reasons, the decedent elected to be

treated privately. If the Government is

to establish medical facilities and make

provision for the care of servicemen and

veterans, as it has done, it cannot, at the

same time, be expected to undertake reimbursement of such personnel when

they decide, for personal reasons, to obtain care at their own expense from private physicians and hospitals.

Another reason why I am unable to

approve this measure is that, as enacted,

it is either unfair to the beneficiary or

to the Government. This results from

the fact that the bill excludes payment

of the death gratuity of 6 months' pay

which was originally claimed by the beneficiary but recognizes and authorizes

the payment of the difference between

active duty pay and retired pay for the

entire period between the date of the

decedent's release from active duty snd

the date of his death. It is obviously inconsistent to exclude the one and recognize the other. If the decedent is to be

considered on active duty for the entire

period in question for pay purposes, he

certainly should be so considered with

respect to the payment of the death

gratuity. On the other hand, if his ac- tive duty is considered to have ended

prior to the date of his death, then it is

equally obvious an adjustment should be

made in the pay differential award. In

all fairness, it would appear that this

inconsistency should be resolved one way

or the other.

It should be stressed that notwithstanding disapproval of the bill, the benefficiary can now have her claim settled

administratively. Since the time when

the case was last reviewed by the Board

for the Correction of Naval Records, legislation has been enacted which permits

administrative settlement of claims

based on changes in records made by the

Board. Reconsideration of the beneficiary's claim under such legislation

would result in an award which, I am

confident, will be equitable from the

standpoint of both the beneficiary and

the Government. In this connection I

should like to express my belief that the

Board should take into account, in its

reconsideration of the case, the possibility that had it been discovered prior

to his release from active duty medical

treatment of the decedent's condition

might very well have led to his retention

on active duty until the date of his

death.

DWIGHT D. EISENHOWER.

THE WHITE HOUSE, September 1, 1954.

E. S. BERNET

S. 46. I have withheld my approval

from S. 46, entitled "For the relief of

E. S. Berney."

This bill would pay to E. S. Berney the

sum of $4,750 as compensation for damages allegedly sustained by him as a

result of certain representations made

by a representative of the Navy during

World War II.

It appears that in the summer of 1943

a representative of the Navy discussed

with the beneficiary the potential use of

his Nevada ranch and certain adjoining

ones as a bombing range. Although the

evidence on this point is conflicting, it

appears that such representative indicated that he expected the Navy to begin

operations that fall and that, prior to

the beginning of such operations, all

livestock would have to be removed from

the land. The beneficiary alleges that

on the basis of this information he disposed of his cattle and other property

and vacated his ranch early in the fall.

It developed, however, that the Navy did

not need or begin to use his land until

the following spring.

In subsequent condemnation proceedings, the court refused to recognize any

damages occurring prior to the time

when the Navy began using the land in

question in the spring of 1944. On this

premise the court awarded the beneficiary $766.67 for damages occurring after

use by the Navy began. The present

bill was designed to afford compensation

for damages which were excluded by the

court and which the beneficiary alleges

were due to the premature vacation of

his land.

Conceding the facts in this case to be

as stated by the beneficiary, it still does

not follow that he is entitled to the

award proposed here. It has not been

established that the damages allegedly

sustained by the beneficiary were due to

a reasonable reliance upon the representations of the Navy representative.

There appears to have been no such reliance on the part of other ranch owners

whose land was taken under similar circumstances and whose statements appear in the committee reports in support of some aspects of the beneficiary's

claim.

In addition, there appears to be confusion as to the basis for measuring the

damages which the beneficiary allegedly

sustained. He made an unverified claim

of damages in the amount of $12,000.

Part of the damages so claimed are

covered by the $766.67 condemnation

award. The Congress reduced the claim

1954 15841