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2d Session.

IN THE SENATE OF THE UNITED STATES.

APRIL 16, 1880.-Ordered to be printed.

No. 492.

Mr. INGALLS, from the Committee on Pensions, submitted the following

REPORT:

[To accompany bill S. 1638.]

The Committee on Pensions, to whom was referred the petition of Horace S. Spear, have examined the same, and report as follows:

Horace S. Spear, late a private soldier in Company I, Fifth Regiment Vermont Volunteers, enlisted September 16, 1861, and was discharged December 27, 1862, on surgeon's certificate of disability, which states that claimant was incapable of performing the duties of a soldier because of "tenderness and pain in the lumbar regions, resulting from an injury, having been run over as stated; unfit for duty since July 4, 1862." On the 27th day of March, 1877, he filed his declaration for invalid pension, alleging that while in the service of the United States and in the line of his duty, he was disabled by spinal and hip disease contracted on or about June 20, 1862, in the seven days' retreat from Richmond, Va., by being run over by a gun-carriage of a battery which his regiment was supporting at the time; which injury has so disabled him that he is incapable of performing manual labor or working at his trade, which is that of a mason.

June 6, 1877, claimant was ordered before a board of examining surgeons, Drs. Langdon, Atwater, and Lund, who gave their opinion that the disability did not originate in the line of duty or in the service, and state in their certificate that the injury upon which the claim is based was received long before the war, and that claimant limped before enlistment in the same manner he does now. They describe his disability as an "old dislocation of the right hip joint," a shortening of 23 inches; atrophy of the muscles of the thigh. Flexion and extension of the right thigh are performed to about one-half the normal degree. The statement that he was run over is not denied.

The records in the office of the Surgeon-General show that claimant was admitted to hospital July 4, 1862, with contusion; was transferred to general hospital, Annapolis, Md., November 15, 1862, with injury of loin, and was discharged December 26, 1862. Records give no other diagnosis in the case.

The rolls on file in the office of the Adjutant-General show that claimant's company was in action at Savage Station, June 29, and he reported as missing, sick in general hospital, July and August, 1862, and discharged on certificate of disability December 27, 1862.

The claim was rejected upon the statement of the examining board, but was afterwards reopened, as their certificate was not deemed sufficient to overcome the testimony as to soundness.

A special agent of the Pension Office was ordered to investigate this claim, and it will be found by reference to his report that twelve prom

inent, credible, and disinterested citizens of Burlington, Vt., and that vicinity, several of whom had known claimant from boyhood, and had ever since been personally intimate with him, testified from their personal knowledge that he was physicially sound when he entered the Army, and was lame when he returned.

Lucretia Spear, an aunt, states that when seven months' old Spear had a boil on one side of his body, which side she does not recollect, from the effects of which he entirely recovered, except that it left one of his legs slightly shorter than the other, but that it did not interfere with his business as he grew up.

This fact appears to have been the foundation of the certificate of the examining board. Dr. Lund was the only member of that board who had personal knowledge of any defect in claimant's gait prior to enlistment, as is shown by the subsequent affidavit of Dr. Atwater, in which he states that he had no personal knowledge of Spear's disability, only that he knew he had a limping walk for some time before his examination by the board, but is inclined to the belief that his remembrance of this fact does not extend back previous to his enlistment; and that he signed the certificate giving an opinion as to Spear's disability before enlistment solely on the representations made by another member of the board.

Upon a review of this special report it was stated by the chief of the division to whom it was referred that, "in view of the strong favorable evidence, a full and thorough investigation is due the claimant," and another special agent was ordered to investigate it.

The report of the second agent shows that he examined nine witnesses, and a brief statement of their testimony is as follows:

Columbus G. Thompson was a private soldier in Company I, and claimant's comrade; he testifies that when Spear enlisted he was affected with some difficulty in his right hip, the right leg being considerably shorter than the other and causing him to limp; that when it was learned that he had been accepted by the board it created surprise in the company; that he would always hitch and limp in his walk, would fall out of ranks, and not be up with the company when going into camp at night. Witness did not meet claimant after the war until about 1873, and he noticed the same limp as when enlisted.

Josiah Dupaw was a corporal in Company I, and testifies that Spear was lame when enlisted; states, also, that from the time of claimant's enlistment until the battle of Savage Station he walked lame; that very frequently while on march Spear would fall out of ranks and throw away his gun. Witness says he was in the battle of Savage Station; that he did not see claimant, and does not believe he was present at any time during the engagement.

The testimony of William J. Dupaw is similar to that of Josiah. He was a private in Company I, and states that Spear was lame when enlisted.

Lucius Bigelow was a sergeant in Company I, and was at the battle of Savage Station, and knew the claimant, who was a private in the same company. He states that he has read the claimant's affidavit, and does not hesitate to say that as far as it relates to Spear's presence at the said battle, and the description of the same, it is false, as the claimant was not in that battle; and if he received his alleged injury on the 29th of June, it was not received while he was in the line of duty.

This witness further swears that claimant's statement that the line of his regiment was broken by artillery commanded by Captains Mott and Ricker is simply absurd, and utterly without foundation. He further declares that while in said engagement, or subsequent thereto, he never

heard that claimant was injured as alleged, and that all the while Spear was in the service he was looked upon as a shirk. In his opinion, Spear should never have been accepted as a soldier; has no ill-feeling toward claimant.

Dr. William B. Lund states that he has known Spear since the winter of 1858 and 1859, at which time claimant was a pupil in a school taught by deponent. He was then a cripple in his right leg and hip, having a very perceptible limp in his gait. He also swears that from a history of the claimant's disability, as related by his aunt, Lucretia Spear, who nursed him when a child, he is of opinion that his disability originated in caries of the head of femur. Witness says claimant is a worthless person, and no reliance can be placed on what he says.

Henry Ballard was first lieutentant of Company I; states that he knew Spear at the time of his enlistment, and that he was a sound and able-bodied man in every respect, and especially free from any defect in either of his legs; that he was in the battle of Savage Station and was there injured by the wheel of a gun-carriage passing over him. He did not see claimant at the time of the injury, but saw him about 30 minutes afterward. He was apparently suffering severely and in a disabled condition. Witness states that very soon after the accident he learned how it happened, but don't remember whether claimant told him, or some other member of the company. His knowledge amounts to a positive conviction in his own mind that claimant was injured as alleged.

Accompanying this report is a detailed statement under oath made by claimant, in which he alleges that he was sound in his right hip and leg when he enlisted; that in 1854 or 1855, while getting down from an apple tree he sprained his left ankle, which caused him to walk lame for some time, and troubles him yet occasionally, when he makes a misstep or fails to set his foot down squarely.

He swears that he always kept up with his company, and never threw away his gun; that on one occasion he had a severe attack of bloody flux, and at that time his gun and blanket were put on the wagons and lost; at least, he never saw them again; that his disabilities are not prolonged or increased by intemperance, as he has been for the past four years a strictly temperate man.

Dr. Cole, who has been the medical adviser of claimant's father for forty years, swears that Speer was sound when he entered the Army. It would not have been possible for him to have been lame in one leg continuously and escape his observation.

The claim was rejected on the ground that the disability existed prior to enlistment. From this the claimant appealed, but the Secretary of the Interior confirmed the decision of the Commissioner.

Since filing his petition for relief by special act, claimant has filed the affidavits of N. B. Flannegan, W. Thayer, Edgar W. Burritt, S. R. McLane, Theodore S. Peck, Joseph A. Larose, Edwin H. Trick, W. M. Carpenter, M. D., professor in the University of Vermont and dean of the medical faculty, B. Seaver, Charles Nichols, Horace Wheeler, A. B. Lowry, J. K. Converse, and Horatio Spear, claimant's brother, all of whom knew him before enlistment, and swear positively that he did not walk lame, and was bodily sound when he enlisted, but has been lame and unable to work since his return.

In contradiction of the testimony of Lucius Bigelow, who denies Spear's statement as to the disposition of troops at the battle of Savage Station, are the affidavits of Michael McKenzie, jr., a private of Company F, and J. Seely Spaulding, a sergeant in Company G, same regiment.

McKenzie swears that the Vermont Brigade of Infantry supported

two batteries in the battle of Savage Station, Mott's and another, which he thinks was Ricketts's. When his company went on to the field Trott's Battery was opening on the enemy, and the Fifth Vermont Regiment was nearly or quite behind it, so that Trott's Battery might have been said to be nearly in front of the Fifth.

Sergeant Spaulding corroborates the above, and both swear that he was sound before he entered the service, and that they have good reason to believe and do believe that he was disabled at Savage Station as he alleges.

Matthew Cole, M. D., became acquainted with claimant in 1854 as physician in his father's family, and testifies that Speer was physically sound at the time of enlistment and for years before.

Henry Ballard was second lieutenant of claimant's company, and at the time of its organization acted as drill-master, and as such had occasion to notice the habits and peculiarities of the recruits, and had every opportunity to know the physical condition of Private Speer. This witness swears positively that claimant was an able-bodied man, and continued to be so until the battle of Savage Station, where he received the injuries stated in his declaration.

D. K. Zottman, United States inspector of customs, has been intimately acquainted with claimant for 25 years, and testifies to his physical soundness when enlisted.

N. B. Flannegan, deputy United States marshal, and for seven years sheriff of the county, has been acquainted with Spear for many years, was a near neighbor, and is positive that he was not in any way physically disabled at the time of his enlistment.

L. J. Smith has known the claimant since boyhood; attended the same Sunday-school, and played together. Saw him frequently up to the time of his enlistment, and can state positively that when he went into the service he was free from physical defect. When he returned from the Army he was suffering with a lame leg and an injured hip.

Leonard C. Bliss, of the police department, has known the claimant for many years; saw him frequently for four or five years immediately preceding his enlistment. He was then working at his trade of stonemasou, and to all appearance, in his walk, at his work, and in social intercourse, was free from any lameness whatever. He never heard of his being lame before enlistment. He was in the habit of hiring horses and vehicles from deponent; and while getting in and out of the buggies the witness had many opportunities to observe his physical movements. J. H. Walton has known Spear for forty years; is and was a near neighbor; saw him frequently prior to his enlistment, and states, from personal knowledge, that he was not lame at time of enlistment, and never heard of his being lame until after his return from the service.

Charles A. Whitney, a merchant of Burlington, has known Spear since boyhood; played together; went to the same Sunday-school; went bathing together, and associated as neighbors' boys. The witness saw Spear every few days, and sometimes every day, for five or six years preceding his enlistment, and from this daily intimate knowledge can swear that the claimant was free from any lameness at the time of entering the Army. He came back disabled.

Harvey Burnett has known Spear since he (Spear) was a boy; never knew or heard of his being lame in any way until he returned from the Army.

Rufus P. Tibbets has known claimant since his (claimant's) boyhood; never heard of his being lame, or saw any indications of it, until after his return from the Army.

If

Amos C. Spear is a distant relative of the claimant, and intimately acquainted with the whole family. He states positively that he never heard of Spear being disabled until after his return from the war. he had been affiicted with lameness the witness would certainly have known and noticed it.

Charles Hildreth, of the firm of Brinsmaid & Hildreth, jewelers, became acquainted with Spear in 1852 or 1853; saw him very often just before his enlistment, and never saw him walk lame; never heard of his being lame until his discharge from the Army.

Mrs. Caroline Hildreth is the sister of claimant, and corroborates the statement of her husband, just recited.

The evidence is conflicting and contradictory, but the committee think there is a preponderance in favor of the claimant, and therefore report a bill for his relief, with the recommendation that it pass.

S. Rep. 492-2

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