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July 26, 1957

Francis A. FAHEY and Josephine Fahey, as Administrators of the Goods, Chattels and Credits which were of Eileen Fahey, Plaintiffs,
UNITED STATES of America, Defendant

The opinion of the court was delivered by: LEVET

This action, tried by this court without a jury, was brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq. The plaintiffs' intestate, Eileen Fahey, a young woman of some 18 years, was shot and killed on July 14, 1952, by one Bayard P. Peakes, a demented war veteran. As a result of this tragic death, the administrators have sued the United States of America on the ground that its alleged negligence in permitting Peakes to be at large permitted the happening of the unfortunate occurrence.

The case, having come on for trial upon the pleadings and proofs of the parties, was submitted to the court for decision upon briefs and argument of counsel. After due deliberation, the court now makes the following Findings of Fact and Conclusions of Law:

Findings of Fact

 1. Bayard P. Peakes a former member of the Armed Forces (born December 14, 1922, a citizen of the United States) was in the Royal Canadian Air Force for 1 1/2 years and was transferred to the American Army in October, 1944. He was admitted to an Army hospital on or about March 12, 1945. There was no history as to the immediate cause of this hospitalization. He was said to be tense and anxious, severely retarded and had marked guilt feelings about his preoccupation in the sexual sphere. He was reported to be difficult to manage and was frequently noted to behave as if he were actively hallucinating. He was classified as dementia praecox, unqualified. Insulin shock treatment was recommended and thereafter administered.

 2. On a Rating Sheet issued by the Regional Office of the Veterans Administration, Area No. 1, Boston, Massachusetts, under date of September 14, 1945, at or about the times of Peakes' discharge, he was rated at 50% disability; psychosis, unclassified, in part remission, competent. It was stated that his condition was in the nature of constitutional or developmental abnormalty; not a disability within the meaning of Title I, Public 2, 73rd Congress, WW II, Reg. 1(a), Part I, Par. 1(a); no combat disability. Peakes' permanent place of residence, according to the records of the Veterans Administration, was at Dover-Foxcroft, Maine. He never married.

 3. On August 24, 1948, a Rehabilitation Board reported to the Adjudication Officer that Peakes had a 50% psychosis disability; that he had studied for two years at Northeastern University and that further study was deemed non-feasible by Newman Cohen, M.D., the Board's psychiatric consultant. The Board concluded that medically Peakes was not feasible for such training and that a checkup was to be made in December, 1948. Dr. Cohen's report dated August 19, 1948 reads in part as follows:

 'It is felt that it would be unwise to subject this fragile personality with all his psychotic residuals to the stress inherent in his planned objective. The malignant schizophrenic process has been only arrested and there is serious question as to how long or to what degree an achievement he will be able to make. In any event caution is necessary. The prognosis is fraught with danger. The picture is a bleak one and he does not appear to be feasible at this time to undertake a vocational training program.'

 4. On December 14, 1948, Dr. Newman Cohen reported, among other things, that Peakes' acute psychotic manifestations were in abeyance and that he must be considered a schzoid personality, a latent schizophrenic with marked potentialities for relapse and that there was a serious question as to how long Peakes would be able to carry on his educational program. However, Peakes was reported feasible for vocational training on a trial basis although interruption in the training might be frustrating.

 5. On October 5, 1949, Peakes was medically examined by the Veterans Administration, his history was noted, including the fact that, from 1946, under the G. I. Bill, he had attended Northeastern University, studying biology as a major student; that he had gotten along very well the first year, but the second year he did not do so well; that he had been placed on a so-called 'cooperative plan' -- a period of outside work and then a period of study, alternately with a vacation; that he was working in the Boston State Hospital as an attendant and that at times he attended movies and dances. Peakes admitted having hallucinations and hearing voices. The diagnosis was 'Schizophrenia, in partial remission * * * He is competent.' The examiner stated that Peakes should be advised against continuing his present educational course because it did not seem possible that he could complete it.

 6. On July 5, 1950, Peakes wrote a letter to Dr. Cohen, in which he expressed peculiar ideas in reference to certain physical difficulties of which he complained, and stated, among other things, that he had quit school and was concentrating on a study of medicine. He said: 'I expect to get someone besides Mr. Filene to help me abolish the electron theory and start a search for a medicine to keep man young.' This letter was forwarded to the Adjudication Division of the Veterans Administration.

 7. On July 24, 1950, Peakes wrote another letter to the Veterans Administration regarding his application for a 100% disability. He said: 'I still expect to disprove the electron theory, get a political party started, and do some research in medicine. Some day I shall be able to put a few females to work at manual labor, so they might grow some brains. If I don't find the eternal life, their children will.' This letter was acknowledged on August 9, 1950, by S. R. Bacherman, Adjudication Officer of the Boston Regional Office. On October 5, 1950, the Veterans Administration examined Peakes in connection with his appeal for 100% disability.

 8. Peakes was also examined on October 26, 1950. The psychiatric report, signed by Dr. Carl J. Hedin, Psychiatrist, stated, among other things:

 'Veteran is oriented in all spheres. He has good grasp of school and general knowledge. He states that he has no worries. His immediate plans are to stay at home and read medical books in order to live longer. By reading medical books he hopes to discover how to live so that he will live longer. He states he has disproved the electronic theory and a few members of the American Society of Physicists are backing him. Veteran states he has written one book entitled, 'Practical Explanation of Science.' (etc.)'

 The diagnosis was 'Schizophrenic reaction, paranoid type, in partial remission.' Dr. Hedin said that in his opinion the veteran 'is not mentally competent to look after his personal affairs.'

 The Rating Sheet dated November 28, 1950, signed by R. W. Wilson, M.D., Rating Specialist (Medical), J. J. Jackson, Rating Specialist (Claims), and S. Crasnick, Chairman, Rating Specialist (Occupational), concluded that there was a 'schizophrenic reaction, paranoid type, formerly diagnosed psychosis, mixed type;' that the veteran was declared incompetent from October 26, 1950.

 9. On December 5, 1950, the Adjudication Officer of the Veterans Administration at Togus, Maine, wrote to the Chief Attorney of the Veterans ...

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