TAMMANY v. UNITED STATES, 38 F.2d 714 (Ct.Cl. 1930)
TAMMANY v. UNITED STATES.
No. H-354.Court of Claims.
March 12, 1930.
Suit by William P. Tammany against United States.
Judgment for plaintiff.
The court, upon the evidence adduced, makes the following special findings of fact:
1. The plaintiff is a lieutenant, junior grade, in the United States Navy. He was graduated from the United States Naval Academy June 4, 1924, was commissioned an ensign, and on June 4, 1927, was commissioned a lieutenant, junior grade, and at all times hereinafter noted on active sea duty.
2. Subsequent to his graduation from the Naval Academy, and during the period from July 1, 1924, to January 1, 1928, the plaintiff,Page 715
by allotment from his basic pay, did contribute $50 per month for the support of his mother. From January 1, 1928, during the period in question, the plaintiff has by allotment from his basic pay contributed $60 per month for the support of his mother.
3. The plaintiff's mother, Mrs. Lena M. Tammany, was born in 1871, and is a widow residing in the town of Lewes, Del. Her husband, plaintiff's father, died about 1913, leaving in his estate only a small dwelling house heavily incumbered. The plaintiff's mother subsequently inherited from her father's estate a one-third interest in a house in Lewes, Del., the proceeds from the division of which she invested jointly with her sister, Miss Anna R. Nichols, in her present residence.
Plaintiff's mother owns jointly with her sister, Miss Anna R. Nichols, the house in which they both reside in Lewes, Del. The value of the house is about $6,000, upon which there is a mortgage of $1,500. For a period of five months, from October, 1925, to March, 1926, she rented a part of her home for $30 per month, the proceeds of which were expended for repairs and alterations. In addition to the foregoing, the plaintiff's mother owns seven shares of Du Pont stock and ten shares of Columbia Gas, from which she derives income of about $100 per annum.
S.N. Tammany, a brother of the plaintiff, is the only other child of Mrs. Lena M. Tammany. He is married and has one son. His salary is $210 per month. Since his marriage in 1920, his wife and son, as well as himself, have been sick a large part of the time. He has been able to contribute only at irregular intervals a total of approximately $100 per year.
4. Excluding the plaintiff's contributions, above noted, the income of the plaintiff's mother has been from her stocks and the contributions of her son S.N. Tammany, approximately $18.33 per month.
The actual living expenses of the plaintiff's mother jointly with her sister for food, fuel, ice, taxes, insurance, light, water, phone, and repairs are approximately $100 per month, of which her sister, Miss Anna R. Nichols, contributes $50 per month. The personal expenses of the plaintiff's mother for clothing, church dues, and a few other miscellaneous things, are approximately $16 per month.
5. Prior to the filing of the within petition the plaintiff filed two claims for rental allowance, under the provisions of the Act of June 10, 1922 (42 Stat. 625), as amended by the Act of May 31, 1924 (43 Stat. 250), premised upon an alleged dependent mother, which were presented to the general accounting office for payment, the first claim covering the period from June 30, 1924, to September 30, 1924, the second from January 1, 1925, to March 31, 1925. The said claims were disallowed by the general accounting office.
No other action has been had on the within claim upon which suit has been brought in Congress, or by any other department, except as herein alleged.
John W. Price, of Washington, D.C. (Rees A. Gillespie, of Washington, D.C., on the brief), for plaintiff.
M.C. Masterson and Charles F. Kincheloe, both of Washington, D.C., for the United States.
Before BOOTH, Chief Justice, and GREEN, WILLIAMS, LITTLETON, and GRAHAM, Judges.
GREEN, Judge.
The plaintiff, who was commissioned an ensign on June 4, 1924, and three years later made a lieutenant, junior grade, in the United States Navy, brings this suit to recover rental and subsistence allowance because of an alleged dependency of his mother upon him. The only question in the case is whether his mother was in fact dependent upon him for her chief support, and of this the evidence leaves little doubt.
Plaintiff's mother has a small amount of property from which she receives an income of about $100 a year. She and her sister own the house in which they live, which is worth about $6,000 and upon which there is a mortgage of about $1,500. Their joint expenses in connection with the house and including household expenses are about $100 a month, which they share equally. Plaintiff's mother's individual expenses for clothing, etc., amount to about $16 a month. From July 1, 1924, to January 1, 1928, the plaintiff, by allotment from his basic pay, has contributed $50 a month for the support of his mother, and since, in the same manner, has contributed $60 a month for her support. The brother of plaintiff also contributes about $100 a year, which, considering his means and circumstances, is a reasonable contribution.
It is quite evident fom the facts above set forth that the plaintiff's mother is living in a fairly economical manner, and that she derives her chief support from the plaintiff'sPage 716
contributions. The only question that could possibly raise any doubt, if there be any, as to plaintiff being entitled to statutory allowances, arises out of the fact that the plaintiff's mother has some property. But we held in effect in Tomlinson v. United States, 66 Ct. Cl. 697, a case where the plaintiff's mother had a small amount of property, that it was not necessary that this property be exhausted before a condition of dependency could arise. We do not think that Congress intended that a dependent should be practically penniless in order to entitle her to the benefits of the statute. If we are correct in this conclusion, it is quite evident that the plaintiff is entitled to the benefits of the statute with reference to additional rental and subsistence allowance because of a dependent mother. The plaintiff is entitled to recover the amount of such rental and subsistence allowance from July 1, 1924, to June 3, 1927, inclusive, at the rate provided by law for an ensign in the Navy on sea duty, and thereafter, the amount of such rental and subsistence allowance as is provided by law for a lieutenant, junior grade, in the Navy. Judgment will be rendered therefor on receipt of a statement from the general accounting office of the amount due plaintiff in accordance with this opinion.