#### THURMAN W. MARSHALL v. THE UNITED STATES

[No. B-70.

Decided October 20, 1924]

*On the Proofs*

*Extra pay for aviation duly, 'Navy.*— An enlisted man of the Navy detailed for “ duty involving actual flying in aircraft ” under the act of March 3, 1915, 38 Stat. 928, is entitled to the extra pay provided in said act so long as the detail remains un-revoked.

*The Reporters*statement of the case:

*Mr. George A. King*for the plaintiff. *King & King*were on the brief.

*Mr. John G.*Ewing, with whom was *Mr. Assistant Attorney General Robert II. Lovett,*for the defendant.

*901The following are the facts of the case as found by the court:

I. The plaintiff enlisted in the United States Navy May 4, *1917,*and was honorably discharged August 1, 1919. He reenlisted August 18, 1919, as a quartermaster, first class, aviation.

He was detailed for aviation duty by the commanding officer of the XT. S. S. *Isabel*by the following order of September 20, 1919:

1 have this day detailed the above-named man for duty including actual flying in aircraft, including dirigibles and airplanes, in accordance with the acts of Congress approved March 3, 1915, and August 29,1916. Approval of this detail is requested.”

This detail was approved by the Bureau of Navigation, Navy Department, and continued in force during the period covered by this claim. His rating in the Navy continued the same.

December 10,1919, while in the line of duty, making ready the mooring lines of *NO-4,*seaplane, plaintiff was struck by the propeller while attempting to land at or near Baton liouge, La., and sustained fractures of the right arm and left leg as Avell as extensive scalp wounds.

He was removed to the naval hospital and transferred from one naval hospital to another until finally, July 28, 1922, he was, on medical survey showing that the disability from his accident was still continuing, discharged from the naval service of the United States.

He was readmitted as a veteran of the United States to the naval hospital at Brooklyn, New York, as a civilian patient by order of the U. S. Veterans’ Bureau, and continued to receive treatment there for the same injury after his discharge from the naval sendee.

General Order No. *BIT,*par. 3, of March 14, 1918, quoted in Par. VII of the petition, pp. 3, 4, continued in effect during the period covered by this claim.

II. The plaintiff has not received any increase of pay for aviation duty from the date of his accident. December 10, 1919, to the date of his discharge, July 28, 1922.

*902If entitled to fifty per cent (50%) increase on Ms pay during that period as for aviation duty, he would receive an additional sum amounting to $1,427.79.

Booth, Judge,

delivered the opinion of the court:

Thurman W. Marshall enlisted in the United States Navy May 4, 1917, was discharged August 1, 1919, and reenlisted August 8, 1919, as quartermaster, first class. On September 20, 1919, by proper orders plaintiff was detailed to aviation duty, involving actual flying in aircraft. On December 10, 1919, while engaged in actual flying, the plaintiff received a painful and serious number of injuries, occasioned through no fault of his, when the seaplane, commanded by Commander A. C. Read, with whom he had gone up, met with an accident in landing. The plaintiff received treatment for his injuries at various naval hospitals, and finally, after a little more than three years of surgical and medical treatment, was discharged from the service. The act of March 3, 1915, 38 Stat. 928, provided for 50 per cent additional pay to men in the service detailed for duty involving-actual flying. The plaintiff received the additional allowance from the date of his detail to date of his injury, and thereafter it was denied him. It is this additional pay from December 10, 1919, to the date of his discharge he now sues to recover.

The Government interposes a novel defense. Seizing hold of an expression in the opinion of the Supreme Court in the case of *United States*v. Luskey, 262 U. S. 62, an attempt is made to confine the scope of the act to those men only who are physically fit in all respects to fly at any time when so ordered. “Luskey was at all times capable of flying if so ordered ” is the expression the defense isolates from the general discussion of the merits of the case, and applies it vigorously to one whose incapacity was the result of actual flying and due entirely to the extreme hazards of the service exacted.

What was the plaintiff’s status in the naval service when ordered to fly with Commander Read? Unquestionably he was serving under a detail to the aviation service and engaged in actual flying. Obviously, then, so long as he re-*903tainecl this status and his detail remained unrevoked he came within the decision of the Supreme Court in the *Luskey*case, *supra.*A method existed to determine his especial detail and terminate his existing status, but it was not resorted to. On the contrary, his detail remained unrevoked and no official orders of any kind were at any time issued until he was finally discharged. Whether the medical authorities believed or disbelieved in the possibility of his recovery so as to resume his duties is not clear. In any event, no effort was made to revoke his detail, and his status as fixed by law and the regulations remained during the period of his confinment for treatment. There is no room in the opinion of the Supreme Court for a technical argument that one injured in the aviation service is to be denied his additional allowance because his injuries preclude his actual flying day by day. The Supreme Court, on the contrary, concurred in the opinion of this court wherein it was said: “ The pay is not made dependent upon the number of flights while on such duty, but is made dependent on the detail to such duty.”

The Navy Department itself recognizes the danger incident to a service of this character, and by General Order No. .377, dated March 14, 1918, it has provided as follows:

“In the case of individuals failing to perform a flight because of physical disability incident to flying, flight orders during the period of such disability will be considered as fully in effect.”

The manifest intention of the law was to encourage enlistment in a military service considered extra hazardous. No case coming under our observation comes more clearly within its spirit than this one. If, as a result of faithful service, actual flying, injury follows, and the Navy Department makes no move to revoke or terminate the officer’s detail thereto but continues his existing status, he may not be denied the benefits of the statute, when manifestly he comes within its provisions. It is a far-fetched contention to seek to limit the decision of the Supreme Court to an ascertainment by the courts of the physical fitness of the men detailed to the aviation service to actually fly, when the law and regulations of the department point out expressly *904the manner of creating the status and terminating the same. The statute uses the words “ detailed for duty involving actual flying in aircraft,” and this court’s construction of the statute was approved by the Supreme Court. *United States*v. Luskey, *supra.*

The defense is a most ingenious one and signalizes an effort which most certainly can not meet with commendation in this particular case.

Judgment for the plaintiff for $1,427.79. It is so ordered.

Graham, *Judge;*Hat, *Judge;*DowNet, *Judge;*and Campbell, *Ghief*Justice, concur.