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Opinion of the Court

cers' Mess, which facilities were used by other officers and the cost was defrayed by the Officers' Mess Fund, and not by the United States.

6. On August 23, 1929, Major General (then Brigadier General) S. D. Butler, United States Marine Corps, Retired, who was the competent superior authority in command of the United States Marine Forces in China, during the period from August 1, 1928, to January 13, 1929, in a report on conditions in the 3rd Brigade of Marines in China, stated that "no officers were at any time furnished with adequate quarters at Government expense.”

7. During the period from August 1, 1928, to March 29, 1929, while plaintiff was stationed in China the United States Marine forces engaged in no marches, movements, desultory combats, or pitched battles with any of the organized military forces of China; neither Shanghai nor Tientsin was ever invaded by hostile bandit forces during the said period; the relations existing between the Chinese people and the Marines were extremely friendly and the Marines among other things collaborated with the Chinese in building and improving the roads and bridges between Peking and Tientsin, China.

8. Plaintiff defrayed the cost of his travel from Shanghai, China, to the United States aboard the S. S. Shidzouka Maru, and has never been reimbursed the cost of said travel. Plaintiff was not furnished any quarters during the period from April 22, 1929, to June 1, 1929.

9. Plaintiff was not paid rental allowance during the period from August 1, 1928, to June 2, 1929, the time involved in his claim.

The court decided that the plaintiff was entitled to recover.

WHALEY, Chief Justice, delivered the opinion of the Court:

Plaintiff, a commissioned officer on active duty in the United States Marine Corps with the rank of First Lieutenant, sues for the rental allowance of an officer of his rank and grade without dependents for the period from August 1, 1928, to June 2, 1929, while assigned to duty with

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Opinion of the Court

the United States Marine Corps in China. Plaintiff bases his claim upon Section 6 of the Act of June 10, 1922, as amended by section 2 of the Act of May 31, 1924 (43 Stat. 250, 251).

From August 1, 1928, to August 20, 1928, while stationed at Tientsin plaintiff occupied jointly with other officers an unheated and unfurnished room in a building ordinarily occupied by enlisted men and known as billets.

On August 20, 1928, under competent orders, he departed from Tientsin and proceeded to Shanghai, arriving there August 27, 1928. From August 27, 1928, to March 29, 1929, he occupied in Shanghai a room identical with that occupied by him in Tientsin. In both Shanghai and Tientsin plaintiff had joint use with other officers of a living room and bathing facilities in the Officers' Mess. Likewise, in both places plaintiff furnished his own bed and other articles of furniture. On March 29, 1929, plaintiff was given leave of absence and sailed from Shanghai for the United States, arriving April 22, 1929. Plaintiff defrayed the cost of this travel and has not been reimbursed therefor. On June 2, 1929, while still on leave of absence in the States, he was detached from further duty with the Marines in China and ordered to report to Marine Barracks, Norfolk Navy Yard, Portsmouth, Virginia. At no time during the period of his claim has plaintiff been paid rental allowance.

With respect to the period spent in Tientsin and Shanghai when plaintiff occupied jointly with other officers an unheated and unfurnished room ordinarily occupied by enlisted men, plaintiff's claim is controlled by Francis v. United States, 89 C. Cls. 78, 82. Therein, as here, claimant was an officer in the Marine Corps and while stationed in Shanghai occupied in a Government building a room inadequately heated and furnished, using during his occupancy the bathing and living room facilities of a private club. The court in its opinion stated :

The defendant furnished the quarters, and the plaintiff occupied them; true, they were not elaborate, but plaintiff was saved the expense of procuring others, and under the statute he receives full reimbursement for all monies expended which in his judgment

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it was essential to expend, and in addition a judgment for the defendant's failure to furnish him the quarters

the law entitled him to receive. The fact that plaintiff occupied a room jointly with other officers while claimant in the Francis case had the exclusive use of a single room is insufficient to remove plaintiff's claim from the rule there applied. Where an officer occupies one room in a Government building, although entitled to more than one, he cannot recover for the one room occupied. For the period while stationed at Tientsin and Shanghai plaintiff is, therefore, entitled to recover the difference in value between the quarters furnished him and the value of those to which he is entitled under the law. No evidence appearing in the case as to the amount expended by plaintiff in renting furniture, there can be no recovery for this item. Larson v. United States, 91 C. Cls. 304. Likewise, there can be no recovery under the statute for the time between August 20, 1928, and August 27, 1928, when plaintiff was en route from one station to another.

With respect to the period from March 29, 1929, to June 2, 1929, when plaintiff was on leave of absence during which time no quarters were furnished nor rental allowance paid, plaintiff is entitled to rental allowance for an officer of his rank and grade without dependents. Markley v. United States, 59 C. Cls. 924.

Entry of judgment will be suspended to await the filing of a report from the General Accounting Office showing the amount due plaintiff in accordance with this opinion. It is so ordered.

LITTLETON, Judge; and GREEN, Judge, concur.
WHITAKER, Judge, took no part in the decision of this case.

Upon a report from the General Accounting Office, filed January 8, 1941, and in accordance with the above opinion, the court on January 13, 1941, entered judgment for the plaintiff in the sum of $323.99.

291825—41-CC-Vol. 92-11

92 C. Cls. Reporter's Statement of the Case ROBERT B. SIMONS v. THE UNITED STATES

[No. 43547. Decided November 12, 1940]

On the Proofs

Pay and allowances; Navy, officer with dependent mother.-Where the

plaintiff, an unmarried commissioned officer in the United States Navy, lieutenant, junior grade, maintained a household in which his mother acted as housekeeper, and was not otherwise employed, it is held that the evidence shows that the cost to plaintiff of her necessary support exceeded the amount of her independent income from property, and the plaintiff was therefore her chief support, and was entitled to rental and subsistence allowances on account of a dependent mother for

the period in question. Same.-Where the mother of an officer has a small amount of prop

erty the income of which is not sufficient to support her, the law does not require that she should make herself penniless by using up this fund before her son can make a claim on account of her dependency.

The Reporter's statement of the case:

Mr. John W. Cross for the plaintiff. Messrs. Wm. I. Denning and Clark Nichols, Jr., were on the briefs.

Miss Stella Akin, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.

The court made special findings of fact as follows:

1. Robert B. Simons, plaintiff, at all times herein involved, a Naval Officer with the rank of lieutenant, junior grade, accepted on September 4, 1935, a commission as an assistant surgeon in the United States Navy and is now serving on active duty under that appointment.

2. Clyde W. Simons, plaintiff's father, died on July 11, 1934, and is survived by his widow, Myrtle B. Simons, plaintiff's mother, who has not remarried. The estate of Clyde W. Simons consisted of a $5,000 life insurance policy, naming his wife as beneficiary, and one-half interest in a theater property located at Fort Collins, Colorado, subsequently sold for $5,000. Mrs. Simons received upon distribution of her husband's estate one-half of the proceeds of this sale, or $2,500, the residue being distributed equally between

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Reporter's Statement of the Case plaintiff and his sister, Doris J. Simons, at all times herein involved a minor. Charged against the estate of Clyde W. Simons were debts of $1,000 covering the last illness and funeral expenses and personal obligations of deceased in the sum of approximately $400. In addition to the property received from her husband's estate, plaintiff's mother owned a house in Fort Collins, Colorado, occupied by the family as a home, from the sale of which she realized prior to the claim period, the sum of $1,200. The income to plaintiff's mother from property owned by her has been $331 in the year 1936, $311 in the year 1937, and $300 in the

year 1938.

3. In addition to his mother, plaintiff's family consists only of his sister who at no time during the period of this claim has been gainfully employed nor contributed to the support of her mother. Plaintiff's sister has lived in a home maintained by him from December 1, 1935, to September 5, 1937, and during June, July, August of 1938. Plaintiff's sister attended the University of Kansas during the school year 1937–38, and in September 1938 enrolled in the Colorado Agricultural School, Fort Collins, Colorado. During the period of this claim the sister has been supported by plaintiff or her mother, and it has been necessary for the mother to use for the support and education of her daughter all income from the funds left by her husband.

4. From December 1, 1935, to September 7, 1937, and during the months of June, July, and August 1938, and to September 10, 1938, plaintiff's mother kept house for him and during that period was not employed and received no income other than from plaintiff, except as set forth in Finding 2.

During the school year 1937–38, September 7, 1937, to June 1938, and after September 10, 1938, to the end of the claim period, plaintiff's mother was employed as chaperon at the Kappa Alpha Theta Sorority House at Fort Collins, Colorado, for which services she received $45 a month in addition to her room and board.

5. The household expenses of plaintiff's home averaged each month about $128, and consisted of rent, $50; gas, electricity, and telephone, $10; laundry, $8;.food, $50; and incidentals, $10. The average amount of plaintiff's monthly

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