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137

Opinion of the Court

screens at a total cost of $40. Plaintiff purchased furniture costing $300.

Plaintiff occupied Quarters 3-C until February 22, 1937, and for the period of such occupancy received no rental allowance. At all times during the period of his claim plaintiff was on duty at Coco Solo, Naval Air Base, and commuted in his automobile between France Field and Coco Solo at a cost of $35.

5. In regular Naval quarters for officers at Coco Solo the occupants are furnished tables, chairs, davenports, kitchen range, ice box, bed and springs. These were not furnished plaintiff in Quarters 3-C. He also paid $13.60 for water and telephone at Quarters 3-C, expenses he would not have incurred had he been furnished quarters at the Naval air base, Coco Solo.

He has received reimbursement for light and gas at Quarters 3-C through the General Accounting Office.

The court decided that the plaintiff was entitled to recover.

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

Plaintiff, now a lieutenant, senior grade, United States Navy sues to recover $464, rental allowance for the period from July 1, 1936, to February 22, 1937, while serving at Coco Solo, Canal Zone. At all times herein involved plaintiff was a lieutenant, junior grade, and had with him a dependent wife and child. During the period of the claim plaintiff was not assigned quarters at Coco Solo by the Naval Commanding Officer for the reason that none were available and plaintiff, upon his own request and with permission of the Army officer in command thereof, occupied Quarters 3-C at France Field, an Army flying field about one and one-half miles from Coco Solo.

Quarters 3-C had been abandoned by the Army as living quarters, and all furnishings, including stoves and heaters, had been removed. Plaintiff purchased furniture at his own expense and also made certain necessary repairs including installation of shelves, painting and varnishing, and replacement of screens at a cost of $40. He paid $13.60 for water and telephone while living at France Field, expenses

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Opinion of the Court

he would not have incurred had he been furnished quarters at the Naval Air Base, Coco Solo. Quarters 3-C contained a living room, two bedrooms, a kitchen and a bathroom, more rooms than authorized by law for an officer of plaintiff's rank and status.

Determination of plaintiff's claim must be controlled by the basic law as set forth in 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) which provides in part: No rental allowance shall accrue

while an officer with or without dependents is assigned as quarters at his permanent station the number of rooms pro

vided by law. * Plaintiff contends (1) that there has been no assignment of quarters and (2) that Quarters 3-C were not at his permanent station within the meaning of the above-quoted provision and finally (3) that Quarters 3-C were inadequate.

Since the case of Odell v. United States, 38 C. Cls. 194, it has been the consistent holding of this court that commutation for quarters is reimbursement to an officer for expenses paid by him for private quarters when the Government fails to furnish public quarters and that commutation is no part of the pay of an officer. The facts of this case show that during the entire time herein involved plaintiff and his dependents resided in Government quarters. A claim similar to that here raised was denied in Byrne v. United States, 87 C. Cls. 241, where claimant's two dependent children resided in Government quarters although the quarters were not assigned to claimant. Plaintiff cannot avoid the established rule followed in that decision by insistence upon an unduly formalized and technical application of the words “assigned” and "permanent station" in the act of May 31, 1934, supra.

Plaintiff further contends that Quarters 3-C were inadequate. The fact is that plaintiff while living at France Field occupied a greater number of rooms than authorized by law for an officer of his rank with dependents. It is true that the building was not in the best of condition and that plaintiff made necessary repairs at his own expense. However, quarters furnished by the Government need not be

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Reporter's Statement of the Case elaborate, and under the statute plaintiff is entitled to recover only reasonable expenses which in his judgment it was essential to expend on the quarters furnished. Francis v. United States, 89 C. Cls. 78. These include $40 for installation of shelves and screens and for painting and varnishing and $13.60 for water and telephone. There is no evidence of the rental value during the claim period of furniture purchased by plaintiff and therefore there can be no recovery for this item. Taxis v. United States, 91 C. Cls. 305. Rental allowance is for commutation of quarters. The cost of gasoline used in plaintiff's automobile in traveling the mile and a half between France Field and Coco Solo is in no an expenditure "on quarters” within the meaning of the Francis case, supra. This item must likewise be denied.

It follows that plaintiff is entitled to recover $53.60.
It is so ordered.

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

IRWIN S. DIERKING v. THE UNITED STATES

[No. 45032. Decided November 12, 1940]

On the Proofs

Property of Army officer lost, damaged, or destroyed.Decided upon

the authority of Jonitz v. United States, 89 C. Cls. 155, and subsequent similar cases.

The Reporter's statement of the case:
Ansell, Ansell & Marshall for the plaintiff.

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

Upon the basis of an agreed statement of facts, which is all the evidence introduced in the case, the court made special findings of fact in part as follows:

1. The plaintiff, Irwin S. Dierking, at all times hereinafter mentioned was a commissioned officer on active duty in the Quartermaster Corps of the United States Army.

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Reporter's Statement of the Case

2. By Special Order No. 67, dated March 21, 1935, plaintiff, then holding the rank of captain, was assigned to duty at Jeffersonville Quartermaster Depot, Jeffersonville, Indiana, and was on duty at said place at all times hereinafter mentioned.

3. During the period in question, the plaintiff occupied a house at 312 East Market Street, Jeffersonville, Indiana, and had been residing at that address ever since November 15, 1936. Public quarters were not assigned to him for the reason that there were none available, and he was paid rental allowance and compelled to provide for his own quarters at his own expense.

4. On January 22, 1937, the Ohio River was at flood stage at Jeffersonville, Indiana. By order of his Commanding Officer, the plaintiff reported for duty at 3:30 A. M. on said date, at the Jeffersonville Quartermaster Depot, and remained on continuous duty during the emergency and until approximately 4:30 A. M. January 25, 1937, for the purpose of saving human life and United States Government property. At the time he so reported for duty none of plaintiff's property had been destroyed and he had no reason to believe at the time he left his residence for duty under such orders that his own property was in danger of being destroyed. His duties under such orders prevented him from ascertaining the condition of his own property until January 25, 1937, when, taking advantage of the first opportunity to communicate with his wife, he found that while so engaged in authorized military duties, and in consequence of his giving his attention to the saving of human life and property belonging to the United States, his own private property, namely: household goods and furniture, was damaged or destroyed by the action of the floodwaters, without fault or negligence on his part.

5. By letter dated May 5, 1937, under the provisions of Army Regulations No. 35–7100, plaintiff requested that he be reimbursed for damage to, and loss of, his household goods and furniture as aforesaid, as per list of articles submitted with his claim, showing as to each article: the original price, estimated cost of replacement, approximate

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Reporter's Statement of the Case

date of purchase, length of time in use, condition and value at time of loss, and amount of damage

*

6. By Special Order No. 27, dated April 29, 1937, under the provisions of paragraph 2 of Army Regulations No. 35-7100, a board of officers was appointed for the purpose of investigating and making recommendations on claims for reimbursement which may be referred to the board, covering loss of furniture and household goods during the Ohio River flood which occurred during the period from January 21 to 31, 1937, which board, after a thorough investigation, found that while plaintiff was on military duty during the emergency at the Jeffersonville Quartermaster Depot for the purpose of saving human life and United States Government property, his own property was damaged by the action of the flood waters; that he was not responsible for the catastrophe, and that the damage to his property was without fault or negligence on the part of the plaintiff; and recommended that he be reimbursed for such loss in the sum of $240.00.

7. The property of the plaintiff damaged or destroyed by the action of the flood waters as aforesaid was not covered by insurance; and the property, the reimbursement for the loss of or damage to which was recommended, was required to be possessed and used by the plaintiff or was reasonable, useful, necessary and proper for the plaintiff to have in his possession in the public service in the line of duty while in quarters or in the field. The damage occurred without fault or negligence on the part of plaintiff. The amount recommended for the reimbursement of the plaintiff represents the reasonable value of the property so lost or destroyed.

8. By letter dated November 22, 1937, from the Finance Department, plaintiff was advised that the Board of Officers recommended that he be reimbursed in the amount of $240 in full settlement for the loss, damage, or destruction of his personal belongings, as described in the claim and accompanying papers, and it accordingly was recommended that the papers be returned to that office approved for payment to the claimant in the amount stated.

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