Docket No. 532.
UNITED STATES OF AMERICA
on behalf of
Jessie Taft Smith and John W. Smith
Claimants,
v.
GERMANY.
PARKER, Umpire, rendered the decision of the Commission.
This case is before the Umpire for decision on a certificate of the two National Commissioners[a] certifying their disagreement.
From the record it appears that Jessie Taft Smith, then 39 years of age, was a passenger on the Lusitania, which was torpedoed and sunk shortly after 2 o’clock p. m. Friday, May 4, 1915. She was en route to join her husband, John W. Smith, then 44 years of age, who she married October 2, 1901, and who was temporarily residing the Birmingham, England, where he was preparing to produce internal-combustion engines of his own invention. A claim is presented not only on behalf of Mrs. Smith but also a distinct claim on behalf of her husband. Both claimants were born and have ever remained American nationals.
The bases of these claims are the alleged (1) personal injuries sustained by Mrs. Smith, (2) medical, hospital, and other expenses incurred by Mr. Smith incident to his wife’s injuries, and (3) pecuniary losses sustained by Mr. Smith because of the refusal by the British Admiralty to accept the “Smith Engine” manufactured under a contract to which Smith was a party, the contention here being that the failure of this engine to meet the admiralty tests was due to Smith’s inability personally to supervise its manufacture because his wife’s impaired health required him to return with her to the United States the later part of July, 1916.
Notwithstanding the most diligent efforts on the part of the American Agent fully to develop and present the facts with respect to these several claims, the record is most unsatisfactory, suggesting either a lack of good faith on the part of the claimants and their counsel or a lack of diligence on their part in presenting the facts essential to prove their claims. The Umpire has laboriously pieced together the numerous disconnected affidavits, made by John W. Smith and others, submitted at sundry times during a period of two years. No straightforward statement in logical sequence has been made. So far as disclosed by the record, the facts, briefly stated, are:
1. Just before the Lusitania sank, shortly after 2 o’clock p. m., Mrs. Smith was helped into a lifeboat [13] which was hanging on the davits and which was loaded, lowered, and pushed off. This lifeboat was taken in tow by a fishing boat, and Mrs. Smith and others were later transferred to a patrol boat [Stormcock] which landed them in Queenstown about 8.10 p. m. the same day. There they were met by the United States Consul, who took Mrs. Smith to the Consulate and shortly thereafter placed her in the home of Dr. and Mrs. Townsend. The record is silent with respect to Mrs. Smith’s experience between the scene of the wreck and her landing in Queenstown and her condition when she reached the home of Dr. Townsend. There is not a suggestion in it that she sustained any physical injury or that she was “immersed”, as a nurse states she understood some nine months later was reported (from what source it does not appear).
2. Mr. Smith, who was temporarily resideing at the Grand Hotel, Birmingham, expected his wife on the Lusitania. Mrs. Smith telegraphed to her husband to Liverpool. He reached Queenstown late Sunday afternoon and found his wife at Dr. Townsend’s home. While Mr. Smith was very anxious for business reasons to return at once to Birmingham, he was advised by Dr. Townsend to wait until Monday afternoon because of Mrs. Smith’s very nervous condition. On Monday afternoon the couple journeyed to Brimingham, where they resided until February 14, 1916, when Mrs. Smith was placed in a nearby sanitarium.
3. Neither the testimony of Dr. Townsend, in whose home Mrs. Smith found refuge for some three days following the sinking of the Lusitania, nor that of any member of his household has been presented here, and its absence is unaccounted for.
4. The several affidavits filed by both Mr. and Mrs. Smith do not disclose how the latter spent her time or the real or apparent condition of her health between the sinking of the Lusitania on May 7, 1915, and February 14, 1916, although specifically requested by the American Agent more than seven months ago to make such disclosures. If during this entire period of more than nine months in 1915-1916 Mrs. Smith was ever attended by a physician or by a nurse until just prior to her entering the sanitarium in February, the record fails to show it.
5. It appears from what purports to be a copy of a letter from John W. Smith to one Alexander Smith dated August 23, 1915, which claimant has seen fit to file as a part of the record herein, that during most of the spring and summer of 1915 Mr. and Mrs. Smith made Sunday excursions to the country, and particularly to Sutton Park, on one occasion walking in the woods as much as eight miles, after which Mrs. Smith did not seem unduly fatigued from her exertions. This apparently was in response to a letter written by Alexander Smith the previous day from London with reference to Mrs. Smith’s health, which, unexplained, is not understandable. The testimony of Alexander Smith has not been presented.
6. On or about February 14, 1916, Mrs. Smith apparently suffered almost a complete collapse and was taken to the South Hill Nursing Home in Birmingham. Just prior thereto, for the first time since the Lusitania disaster, so far as disclosed by the record, she was attended by a doctor. This doctor is dead. It appears that he probably kept a record of the case but such record is not produced or its absence accounted for.
7. The affidavit of the principal nurse, then Jones by name, in charge of Mrs. Smith’s case from the time of her collapse in February, 1916, until her return to the United States the latter parter of July that year recites that Mrs. Smith “was suffering from the after effects of the very severe attack of rheumatic fever resulting as I understood from her immersion on the occasion of the sinking of the Lusitania”. Neither Mr. nor Mrs. Smith anywhere states that the latter had been “immersed” or that she had suffered from an attack, severe or otherwise, of rheumatic fever, save a brief and casual allegation made in the original claim in support of which reference is made to the affidavit of Nurse Pollard. As will hereafter appear the meager affidavit of Nurse Pollard on this issue is also pure hearsay. Nowhere in the record does anyone attempt to state the time or place at which Mrs. Smith was stricken with rheumatic fever or its duration. The meager record up to this point would seem to negative the existence of such an attack during the nine months intervening between the sinking of the Lusitania and Mrs. Smith’s entering the sanitarium.
8. From the time Mrs. Smith entered the sanitarium, on February 14, to her departure with her husband for the United States, the latter part of July, the nurse above-mentioned attended her. Nurse Jones states that Mrs. Smith’s body was enervated and frail and that her mind was deranged. The affidavit of this nurse was not taken until April 9, 1924, and was then procured on the insistence of the American Agent. It contains no competent evidence connecting Mrs. Smith’s lamentable condition with the Lusitania disaster. It does contain a statement to the effect that Mrs. Smith had the impression that she would not recover save under the advice of her brother, a physician in the United States.
9. This brother is Dr. Robert E. Taft, a practicing physician of Cleveland, Ohio. In the original claim sworn to by Mr. and Mrs. Smith December 26, 1922, reference is made to the “affidavit of Doctor Robert R. Taft hereto annexed marked Exhibit B”. Dr. Taft’s name is stricken out and that of Elizabeth Pollard substituted.
10. It appears from the affidavit of Mrs. Elizabeth Gilmore Pollard (Exhibit 6, mentioned above as “Exhibit B”), executed December 26, 1922, that she is a trained nurse, that she has known Mrs. Smith for many years before and after 1915, and that Mrs. Smith had enjoyed good health at all times, except for an attack of pneumonia when in her twenties, until the Lusitania disaster, and following that “she had a prolonged attack of rheumatic fever, which left her in a nervous and dazed condition”. This witness, however, did not see Mrs. Smith until after the latter’s return to the United States in August, 1916, and her statement with reference to Mrs. Smith’s alleged attack of rheumatic fever is manifestly hearsay.
11. It was not until the 8th day of April, 1924, and then on the insistence of the American Agent, that the affidavit of Dr. Taft was taken. It appears from it that Mr. Smith took his wife direct to Dr. Taft’s office in Cleveland on their arrival from England in August, 1916. On Dr. Taft’s advice Mrs. Smith spent part of August and October and all of September on her father’s farm not far from Cleveland. Dr. Taft visited her once during her stay there, and was constantly advised by his father by telephone and in writing with respect to her condition. Dr. Taft’s guarded statement fails to establish any causal connection between the condition in which he found his sister and the sinking of the Lusitania.
12. In the record is the affidavit of Mrs. Smith’s sister, Florence A. Taft, taken November 4, 1919, giving a list of the personal effects which Miss Taft helped Mrs. Smith pack before sailing for England. There is not a word in the record from Miss Taft concerning Mrs. Smith’s physical or mental condition either before or after the sinking of the Lusitania.
13. The predisposing causes of rheumatic fever are numerous. The exciting cause of the disease is generally accepted as infectious in its origin. Whatever the facts may be, the record contains no history of any experience suffered by Mrs. Smith connected either directly or indirectly with the sinking of the Lusitania pointing this Commission to either the predisposing or exciting cause of rheumatic fever, if in fact the claimant suffered from this malady. Neither is there any attempt by either Mr. or Mrs. Smith or the latter’s brother, Dr. Taft, or her sister, Miss Taft, to eliminate any hereditary predispositions to rheumatic fever or through her past history to eliminate other possible causes for this malady. Miss Taft was thrown intimately with her sister, the claimant, just before the latter sailed on the Lusitania. She knows what her then apparent physical and mental condition was, but has not spoken so far as this record is concerned. The two nurses, Jones and Pollard, attribute Mrs. Smith’s impaired health to the after-effects of a severe attack of rheumatic fever. There is no competent testimony in the record that the experience following the sinking of the Lusitania resulted or would probably have resulted in such an attack. There is no competent testimony in the record that such an attack produced or was calculated to produce the collapse from which the claimant suffered in February, 1916. It is not competent for this Commission to employ imagination to supply the very obvious gaps in claimants’ case to fill which no testimony is presented. The record fails to establish any causal connection between the sinking of the Lusitania and the lamentable, almost total, mental collapse suffered by Mrs. Smith some nine months later. The claimants’ counsel has furnished the American Agent with the most meager information with respect to the condition and activities of Mrs. Smith during that nine-month period. Ascribing to that meager information all justifiable implications most favorable to the claimants, still they have failed to discharge the burden resting upon them to prove that the impairment of Mrs. Smith’s mental and physical health during the years 1916 and 1917 was attributable to her experience in connection with the sinking of the Lusitania. This Commission can and does take judicial cognizance of the fact that that experience was distressing but it can not judicially know that it resulted in physical or mental injury to the claimant.
14. The record in this case is typical of numerous records pending before this Commission in which the American Agent has met with small success in his diligent efforts to induce the claimants’ counsel to furnish competent and satisfactory evidence in support of their claims. The rules of this Commission with respect to the form and nature of evidence which may be presented are most liberal, but these rules do not go so far as to waive the burden resting upon a claimant to prove his case. The Commission finally admonishes all claimants and their counsel promptly to furnish the American Agent with full and competent evidence in support of their claims or abide the consequences.
15. Mrs. Smith had with her on the Lusitania personal effects of the value of $1,196 which were lost.
16. The record fails to establish any loss or damage suffered by Mr. Smith in connection with the contract for the production of engines for the British Admiralty which is attributable to Germany’s act in sinking the Lusitania.
Applying the rules announced in the Lusitania Opinion and in the other decisions of this Commission to the facts as disclosed by this record, the Commission decrees that under the Treaty of Berlin of August 25, 1921, and in accordance with its terms the Government of Germany is obligated to pay to the Government of the United States on behalf of Jessie Taft Smith the sum of one thousand one hundred ninety-six dollars ($1,196.00) (being the value of the personal effects lost by her) with interest thereon at the rate of five per cent per annum from May 7, 1915; and further decrees that the Government of Germany is not obligated to pay to the Government of the United States any further amount on behalf of either claimant herein.
Done at Washington October 8, 1924.
EDWIN B. PARKER,
Umpire.
—-
[a] Dated September 23, 1924.
—-
Supplementary to the Decision in Docket No. 532 the Umpire handed down an order in writing as follows:
Supplementary to and as part of the decision this day handed down in the causes numbered and styled as above, it is hereby
ORDERED:
(1) That in this case the claimants and their counsel may on or before November 10, 1924, present to the Umpire through the American Agent any competent evidence in support of these claims;
(2) That any evidence so presented will be considered by the Umpire, and if in his opinion the decisions this day handed down should be modified in the light of such evidence, if any, such modification will be made; otherwise such decidion will thereupon become final; and
(3) That the tentative nature of this decision is not to be taken as a precedent by the American Agent or claimants. In the future all claims whatsoever will be considered and decided on the record submitted, whether complete or not.
Done at Washington October 8, 1924.
EDWIN B. PARKER,
Umpire.
—-
Docket No. 532.
UNITED STATES OF AMERICA
on behalf of
Jessie Taft Smith and John W. Smith
Claimants,
v.
GERMANY.
CONSIDERING that a decision was rendered on October 8, 1924, by the Umpire in case numbered and styled as above and that an order supplementary thereto was entered by the Umpire on the same date authorizing the claimants and their counsel on or before November 10, 1924, to present to the Umpire through the American Agent any competent evidence in support of the claims put forward in this case, and
CONSIDERING that there has been called to the attention of the Umpire any additional evidence since presented by the claimants’ counsel and filed herein by the American Agent, and
CONSIDERING that there have also been presented to the Umpire by the American Agent a letter of the claimant John W. Smith to the American Agency dated Philadelphia October 30, 1924, and a letter from the claimants’ counsel to the American Agent dated November 7, 1924, making application for a further extension of time for the filing of additional evidence herein, and
CONSIDERING that, while diligence on the part of claimants and their counsel is not shown, nevertheless this Commission desires that every reasonable opportunity by afforded to develop and present all facts affecting the merits of each claim presented to it; it is therefore
ORDERED, That the time specified in paragraph (1) of the supplementary order of October 8, 1924, to which reference is here made, be, and it is hereby, extended from November 10, 1924 to December 30, 1924.
Done at Washington November 8, 1924.
EDWIN B. PARKER,
Umpire.
—-
Docket No. 532.
UNITED STATES OF AMERICA
on behalf of
Jessie Taft Smith and John W. Smith
Claimants,
v.
GERMANY.
CONSIDERING the decision rendered on October 8, 1924, by the Umpire in case numbered and styled as above and the order supplementary thereto entered by the Umpire on that date and also the order supplementary thereto entered by the Umpire on November 8, 1924, and
CONSIDERING that there has been called to the attention of the Umpire additional evidence presented by the claimants’ counsel and filed herein by the American Agent on, to wit, the 10th day of November, 1924, the 22nd day of December, 1924, and the 30th day of December, 1924,
PARKER, Umpire, rendered the final decision of the Commission.
The Umpire has carefully considered the additional evidence filed herein since October 8, 1924. The obvious gaps in the claimants’ case, heretofore pointed out, have been only partially filled. No testimony from Mrs. Smith’s sister, Florence A. Taft, from Alexander Smith, from Dr. Townsend, or from Mrs. Townsend has been presented and the absence of such evidence remains unaccounted for. In the additional affidavit filed by John W. Smith with respect to his wife’s condition, he states in substance that Mr. Pilkington, Mrs. Taylor, and Mr. Butterworth were each in a position to corroborate his statements but their testimony has not been produced.
It is apparent, however, from the record that the experiences of the claimant Jessie Taft Smith in connection with the sinking of the Lusitania were most distressing and that she suffered from exposure and shock, although the extent of that suffering has not been satisfactorily established.
Applying the rules announced in the Lusitania Opinion and in the other decisions of this Commission to the facts as disclosed by this record, the Commission decrees that under the Treaty of Berlin of August 25, 1921, and in accordance with its terms the Government of Germany is obligated to pay to the Government of the United States on behalf of Jessie Taft Smith the sum of two thousand five hundred dollars ($2,500.00) with interest thereon at the rate of five per cent per annum from November 1, 1923, in addition to the award made herein on her behalf on October 8, 1924, of one thousand one hundred ninety-six dollars ($1,196.00) (being the value of the personal effects lost by her) with interest thereon at the rate of five per cent per annum from May 7, 1915; and further decrees that the Government of Germany is not obligated to pay to the Government of the United States any further amount on behalf John W. Smith, the other claimant herein.
Done at Washington December 30, 1924.
EDWIN B. PARKER,
Umpire.
