#### CHESTER V. FREELAND v. THE UNITED STATES

[No. E-621.

Decided January 9, 1928]

*On the Proofs*

*Navy pay; dependent mother; rental allowance; see. 4, act of June 10, 1922.'*— .Section 4 of the act of June 10, 1922, is not to he strictly construed, and where a mother is dependent upon a contribution by her son, who is an officer in the Navy, to keep her from dependence upon charity, and she is not furnished public quarters, the officer is entitled to rental allowance on her account.

*365*The Reporter’s*statement of the case:

*Mr. George A. King*for the plaintiff. *Messrs. WilUam B\ King*and *Cornelius II. Bull*and *King <& King*were on the briefs.

*Mr. Franje J. Keaimg,*with whom was *Mr. Assistant Attorney General Hermann, J. Galloway,*for the defendant. *Mr. McClure Kelley*was on the briefs.

The court made special findings of fact, as follows:

I. From October 1, 1922, to September 30, 1923, plaintiff was a pay clerk in the United States Navy on active duty.

II. From October 1,1922, ,to September 30,1923, plaintiff’s mother was dependent upon him for her chief support by reason of the following* circumstances:

On September 5,1908, she was granted a decree of absolute divorce from her husband, Albert O. Freeland, by the Supreme Court of Middlesex County, Mass. -No alimony was awarded her under this decree.

During the period October 1, 1922, to September 30, 1923, plaintiff’s mother earned $33.00 per month as an employee in a shoe factory at Rockland, Mass. She had no other source of income or property than her earnings as a shoe-worker except periodic contributions made to her by the plaintiff from his pay as a pay clerk of the Navy. Her actual living expenses during the period October 1, 1922, to> September 30, 1923, averaged $50.00 per month. She occupied one room at 103 Webster Street, Rockland, Mass.,, rented from relatives, and paid for said room with board approximately $9.00 per week.

By reason of the insufficiency of the earnings of his mother as a shoe wmrker to adequately support herself, plaintiff contributed to her support and maintenance during the period October 1, 1922, to September 30, 1923, the sum of approximately $43.33 per month.

III. During the period October 1, 1922, to September 30, 1923, no public quarters were furnished plaintiff’s dependent mother by the United States, and plaintiff, himself was attached to and serving on the U. S. S. *Beaver.*

IY. During the period October, 1, 1922, to September 30, 1923, plaintiff received rental allowance on account of his. *366dependent mother, at the rate of $40 per month, or a total sum of $480.00. Subsequently, said $480.00 was deducted from plaintiff’s pay during the second and third quarters of 1924 to reimburse the United States on account of an alleged failure of plaintiff to prove to the satisfaction of the Comptroller General that his mother was in fact dependent upon him for her chief support.

If plaintiff be entitled to rental allowance on account of his dependent mother from October 1,1922, to September 30, 1923, the amount which he would receive is $480.00.

The court decided that plaintiff was entitled to recover.

Booth, Judge,

delivered the opinion of the court:

The act of June 10, 1922 (42 Stat. 625), allows naval officers with dejjendents a rental allowance provided such dependents are not occupying- public quarters. Section 4 of the statute, page 627, defines the term “ dependent ” and extends the application of the law to the mother of the officer if in fact she depends upon him chiefly for support. The language of section 4 is as follows:

“ The term c dependent ’ as used in the succeeding sections of this act shall include at all times and in all places a lawful wife and unmarried children under twenty-one years of age. It shall also include the mother of the officer, provided she is in fact dependent on him for her chief support.”

The jflaintiff from October 1, 1922, until September 30, 1923, was on active duty in the Navy as a pay clerk. During this period the plaintiff contributed monthly to his mother’s support about $43.33 per month. In 1924 there was deducted from plaintiff’s pay the sum of $480.00, the amount he had drawn as a rental allowance under the act of June 10, 1922, *supra,*the deduction being justified upon the alleged failure of the plaintiff to prove as a matter of fact that his mother was dependent upon him for her chief support. The record proves that during this entire period plaintiff’s mother was without financial resources, except the small salary of $33.00 per month paid her as an employee in a shoe factory at Rockland, Mass. Through the kindness of relatives, who *367do not seem to have been able to grant free lodging, the mother was enabled to obtain one room and board in their residence for $9.00 per week, a sum $3.00 in excess of her monthly income. The average monthly expense of the mother was not less than $50.00 per month.

Whether the record now before the court was before the Comptroller General is not shown. The question, which is purely one of fact, impresses us under the proofs that the plaintiff is entitled to recover. When consideration is given to the history of the legislation, contemporaneous events, and especially to the act of May 26, 1926 (44 Stat. 654), it is evident that Congress was extending to a naval officer in the plaintiff’s situation an allowance to compensate him for the expenditures he was compelled to make for the support of a dependent mother. The statute limited the allowance and was designedly confined to cases where the necessities of the case exacted the payment. It is difficult to standardize the facts which disclose a condition designated in the law as “ chief support.” Surely it was not intended by this provision to warrant a refusal of the allowance because perchance the dependent was able to earn something and others might in a small way contribute to the dependent’s living expenses. The plaintiff was the dependent’s only son. No one of her immediate family was a person of affluence, and with the contributions made by plaintiff it is assuredly established that without the $40.00 monthly allowance the mother would have been in dire distress. As it was she was able to live, provided sickness and misfortune did not overtake her. The plaintiff’s contribution clearly indicates that it was upon him the mother chiefly relied for support. We say *chiefly,*not upon a mathematical or pro rata computation of the sums she received for labor and from the plaintiff, but together with all the facts and circumstances surrounding the situation we deduce a conclusion that the mother, while herself earning an insignificant wage, insufficient to pay for board and lodging, the $40.00 received monthly from the plaintiff was indeed and in fact the chief obstacle to approaching poverty or absolute dependence upon either public charity or the generosity of friends.

*368The court thinks the statute involved is not to be strictly construed, nor applied rigidly in all cases where there appears an absence of destitution or helplessness. The real legislative intent was to relieve an officer situated as the plaintiff from taking from a salary not in anywise disproportionate to his individual needs a monthly allowance to a dependent mother. Congress recognized that the officer’s pay, in view of the increased cost of living, was not too great, and added the provisions cited above, and as said by the committee in its report on the bill, “ it accepts family life and its greater requirements as the normal condition of existence. It recognizes abnormal conditions inherent in military and naval service, frequent changes of station, and family separations.”

A denial of judgment for the plaintiff in this case would result in counteracting the manifest intent of Congress in working out a schedule of pay for officers in the Navy “ which offer a reasonable career to young men of a desirable kind.” Judgment for the plaintiff for $480.00. It is so ordered.

Moss, *Judge;*Ge'aham, *Judge;*and Campbell, *Ghief Jus*tice, concur.