Opinion of the Court for piloting duties and therefore classified him as a nonflying officer, whose pay under the act of April 9, 1935, 49 Stat. 120, was restricted to an additional sum of $1,440 per annum. 8. For the month of July 1935 plaintiff received for his flying pay $5 less than 50% of his base pay as increased by longevity. For the period August 1, 1935, to June 15, 1936, plaintiff received for his flying pay $383.75 less than 50% of his base pay as increased by longevity, or a total of $388.75 less than 50% for the period named. For the period June 16, 1936, to June 30, 1936, plaintiff received for his flying pay 50% of his base pay as increased by longevity. The court decided that the plaintiff was entitled to recover. BOOTH, Chief Justice, delivered the opinion of the court: The only question in this case is whether plaintiff, who, by reason of an airplane accident, was physically unfit for duty as an airplane pilot, but who was assigned to duty as an observer and while on such duty participated regularly and frequently in aerial flights, is entitled to the 50% additional flying pay provided by Sec. 13a of the act of June 4, 1920, 41 Stat. 759, 768, as amended by the act of July 2, 1926, 44 Stat. 780, 781. Plaintiff was rated as a pilot and regularly took part in aerial flights until injured in an airplane accident in 1928, and was paid the additional 50% up to July 1, 1935. On Dec. 2, 1935, plaintiff was advised by The Adjutant General that he had been classified as an officer "capable and qualified for nonpiloting duty in the Air Corps" and that he would be required to continue his "aerial experience and fulfill the legal requirements to draw flying pay." The evidence shows that he flew prior to and during all the period covered by this claim. The defense offered is that since he was not during the period of this claim an airplane pilot he was therefore classified as a nonflying officer under the act of April 9, 1935, 49 Stat. 120, 124, which contained an appropriation for aviation increased pay, with this proviso: 66* * none Opinion of the Court of which shall be available for increased pay for making aerial flights by nonflying officers at a rate in excess of $1,440 per annum, which shall be the legal maximum rate as to such nonflying officers." Plaintiff was paid during the period of this claim at the $1,440 rate. The question therefore is, What is a nonflying officer within the meaning of the act of 1935? The findings show that plaintiff was classified as an aerial observer, took a special course in this subject, and made frequent flights as an observer, and the only reason he was not continued as a pilot was because of the injury received in an airplane accident. Although this provision of the act of 1935 has not heretofore been included as a defense in these cases, the court has previously held that an injured flier was entitled to increased pay while incapacitated by reason of the injuries, his flying detail having remained unrevoked (Marshall, 59 C. Cls. 900; Garrison, 59 C. Cls. 919; Lasher, 73 C. Cls. 699) ; that a warrant officer was entitled to the pay when assigned to the duty of aero repair which required him to fly frequently (Bradshaw, 62 C. Cls. 638); that an officer assigned as an “aeronautical officer" of a department was entitled to the pay (Emmons, 63 C. Cls. 121); that a medical officer assigned as flight surgeon was entitled to it (Johnson, 67 C. Cls. 318); another medical officer was entitled thereto, even though he did not actually participate in such flights (Brown, 68 C. Cls. 734); and that an officer detailed to observe bomb tests was also entitled to the pay (Stribling, 68 C. Cls. 213). The leading case is Luskey, 56 C. Cls. 411; 262 U. S. 62. See also Lynch, 63 C. Cls. 91; Carleton, 64 C. Cls. 564; and Arnold, 65 C. Cls. 43. This case is very similar to the Marshall case (supra), in which case the officer was physically incapacitated by reason of an airplane accident. The court decided that his flying assignment was unrevoked, that he was entitled to pay, and referring to the Luskey case, supra, said: 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 [p. 903]. Opinion of the Court And in Bradshaw (supra) in referring to the statute here involved the court said: It is fair to assume that Congress intended by the use of the terms "officers and enlisted men" to include all persons in the service of the Army whose duty might require frequent and regular participation in aerial flights [p. 644]. In Clark v. United States, 60 C. Cls. 589, 591, the court said: When an officer is on duty requiring him to participate regularly and frequently in aerial flights he is entitled to the pay provided for in the statute during the time he is on such duty from the day he is placed on such duty until he is detached therefrom. Johnson v. United States (supra) is similar to the instant case, in that the officer was not a pilot but a medical officer who was detailed on flying status to observe the physical condition of pilots while flying, the court saying: The service was of a dangerous character, inasmuch as he took the chances of the inefficiency of the man whose condition he was undertaking to ascertain [p. 322]. The defendant's argument, consisting mainly of the decision of the Comptroller General, is that because plaintiff was no longer rated as a pilot he was therefore a nonflying officer. This seems to be in direct conflict with the decided cases which hold that the assignment to duty is the thing which determines his pay status. Since plaintiff was assigned to duty as an airplane observer who "frequently and regularly" took part in airplane flights, he would seem to come within the general terms of the statute authorizing the 50% additional pay. It is absurd to argue that "nonpiloting duty" to which plaintiff was assigned is the equivalent of "nonflying" duty. Plaintiff should recover. It is so ordered. WHALEY, Judge; LITTLETON, Judge; and GREEN, Judge, concur. WILLIAMS, Judge, took no part in this decision. Reporter's Statement of the Case EDWARD E. GILLEN COMPANY, A WISCONSIN CORPORATION, v. THE UNITED STATES [No. 43519. Decided March 6, 1939] On the Proofs Government contract; loss incurred by failure to acquire title to site.Where contractor could not meet the requirements of the specifications within the time limit fixed for performance because the Government did not possess title to sufficient lands to enable it to be done, causing the contractor to incur a loss it was not under obligation to incur, it is held that the contractor is entitled to recover. Same.-Failure on the part of the Government to make available to a contractor the site upon which the work is to be performed, if it occasions delay in performance and causes damages to the contractor, entitles him to recover his loss. Same; determination of claim by department officials.-Determination of a claim by department officials is not binding upon the Court but is a fact, a proceeding in the course of the administration of the transaction, to be given such weight as the Court thinks it is entitled to receive. Same; intention of Government.-It cannot be inferred from the record that the Government intended to make the performance of the work extremely costly when a more inexpensive way was available. The Reporter's statement of the case: Messrs. James D. Shaw and Van B. Wake for the plaintiff. Messrs. William H. Donovan and Arthur J. Phelan were on the briefs. Mr. Henry Fischer, with whom was Mr. Assistant Attorney General Sam E. Whitaker, for the defendant. Mr. P. M. Cox was on the brief. The court made special findings of fact as follows: 1. At all times mentioned herein the plaintiff was, and still is, a corporation organized and existing under the laws of the State of Wisconsin and having its principal office at 626 East Wisconsin Avenue, Milwaukee, Wisconsin, Reporter's Statement of the Case and at all of said times was engaged as a contractor in the construction of marine works of improvement, foundations, and like heavy structures. 2. On October 25, 1932, the defendant instituted condemnation proceedings in the United States District Court for the District of Minnesota, against the Chicago, Milwaukee, St. Paul and Pacific Railroad Company for the acquisition of title to two tracts of land bordering on the Mississippi River near Minneiska, Minnesota, the same consisting of one tract of approximately 1.30 acres and a second tract of 0.65 acre. The condemnation proceedings bore the following title: IN THE MATTER OF THE CONDEMNATION OF CERTAIN LANDS SITUATED ALONG THE MISSISSIPPI RIVER IN THE COUNTY OF WINONA, STATE OF MINNESOTA, WHICH LAND IS NECESSARY, DESIRABLE, AND ADVANTAGEOUS TO THE CONSTRUCTION, MAINTENANCE, AND OPERATION OF LOCK NO. 5, REQUIRED FOR THE IMPROVEMENT OF NAVIGATION IN THE MISSISSIPPI RIVER. Article 4 thereof included the following: * That said described lands are the site of said lock, and it is necessary to erect structures thereon, and that the construction of said lock is about to be commenced by your Petitioner's Secretary of War the said Secretary of War has also requested and does hereby make application for the right to take immediate possession of said lands in order that he may expeditiously proceed with said public work and that it is necessary and urgent and for the advantage and best interests of your Petitioner that the said Secretary of War be granted immediate possession of said lands for such purposes. A certified copy of the condemnation petition, plaintiff's exhibit 17, is by reference made a part of this finding. The two tracts of land forming the basis of the condemnation proceedings are indicated in red and blue, respectively, on a map entitled "Mississippi River Lock and Dam No. 5," which is plaintiff's exhibit 2 and is by reference made a part of this finding. |