38 F. 902 | U.S. Circuit Court for the District of Southern Ohio | 1889
(orally charging jury.) The government sues to recover from Margaret Purdy and her son Robert J. Pnrdy, the sum of $2,546.86, which, as is set forth in the petition, is the amount of the pension granted or paid to Margaret Purdy on the 25th day of April, 1888, on account of the death, from injuries received in the service, of her son William T. Curdy, on the 12th of May 1862. The pension was granted under section 4707, Rev. St. U. S., which provides, in substance, that if a soldier has died of a disability contracted in service, under such circumstances'as would ha,ve entitled him to a pension, and ho leaves neither widow nor minor children, certain relatives, if any survive, who were dependent, in whole or in part, on such soldier at the time of his decease, become entitled to the pension. The mother is first entitled, the father second, the orphan brothers and sisters, third. Now, this statute provides that there must have been dependence upon the deceased soldier for support, in whole or in part, at the time of his death, and that the mother shall be presumed to have been dependent upon her son if, at the date of his death she had no adequate means of support other than the ordinary proceeds of her own manual labor and the contributions of her son, or of any other persons not legally bound to aid in her support, and if by actual contributions, or in any other way, the son had recognized his obligation to aid in the support of his mother, or was by law bound to such support.
The first question in this case therefore is: Was Margaret Purdy dependent for her support, in w'hole or in part, upon William T. Purdy at the date of his death? In other words, had she adequate means of support other than the ordinary proceeds of her own manual labor and his contributions, or the contributions of other persons not legally bound to aid in her support? It is for you to determine the facts bearing on this question. It appears from the evidence so far as the court was able to hear it, that in 1860, I think, — at any rate, at a date prior to the enlistment of William T. Purdy in the army, — Margaret Purdy’s husband died intestate: that in the two farms — one of 78 acres, and the oilier of
The testimony show's that William T. Purdy was a minor at the time of his death. That being so, he was under obligation to contribute to the support of his mother, which brings him within one clause of this section, and that leaves the question simply whether she was dependent. Something has been read to you from the opinions.of the secretary of the interior as to the construction of that section. Now, his opinion, while it may be used argumentatively to the court, is not an authority on the construction of the law; because the constitution vests that power in the judiciary alone. So that the construction of the "secretary of the interior does not fix the meaning of the law; and, while it is correct in some respects, it is clearly wrong in others. There is a statement here that if the income of the relative claiming to be dependent is less than $500 per year, that is to be regarded as making him or her dependent; and if it is over $700, or $750, the construction would be the other way. Weil, the court does not recognize that as the true construction of the law. In the opinion of the court it depends upon the circumstances of each case. The mother is entitled to support according to the style in which she has been living. If that has been humble and inexpensive, the amount necessary to provide for her would necessarily be less than if she had been living in a more expensive style. The policy of the government is not to reduce the surviving relatives of the soldier -who has lost his life in the service down to the lowest standard of life, but it is to construe the dependent clause, so far as the obligation of the statute is concerned, according to the mode in which the widow had been living. Testimony has been given regarding the rental value of these farms, —the cash value. It ranges from $125 to $150 a year gross rents. That seems a very small rent for 100 acres and a little over, or even for 7 8 acres; bnt you must take into account that altogether there were only about 85 acres cleared. Take into account, also, the testimony with reference to the condition of the land, and the improvements upon the farm, and it is simply a question of evidence. Out of this gross income —according to the testimony of the different witnesses — not less than $50, and according to the highest, $75, a year would bo required for taxes and improvements. The testimony is that the cost of the support of the old lady, if she did nothing for herself, would he from $250 to $500 a year. That is also for you to pass upon. It is for you to determine from the testimony whether she was adequately provided for, aud in determining that you will look to what was necessary for her support. It struck me that the estimate of 8500 was altogether out of the vray; that it was much more than was necessary, according to the testimony as to the woman’s- life. If her boarding and washing cost from $3 to $4 a week, — which is the range of the testimony, — $250 to $300 would cover the expense of her living according to the style in which she had been accustomed to live.
The next- question is wdiether there was fraud in the application which would invalidate the pension. That, I think is pleaded in the petition.
The next proposition made by the government is that, if she had a contract for her support which was adequate for that purpose, there can be no allowance — no proper allowance — of her pension. Now, that is a correct statement of the law. It is to be found in the closing paragraph of section 4707: “Provided, further, that the pension allowed to airy person on account of his or her dependence, as hereinbefore provided, shall not be paid for any period during which it shall not be necessary as a means of adequate subsistence.” Well, it is very plain that under that provision of the section, if she had made a contract with her son Robert J. Purdy, —as is claimed by the government, — whereby he was to take care of her during her life, and provide for her, sue was not entitled to this pension. The first objection made to this point by the defense is that the suit is not placed upon that ground. That is true. But the testimony has been received, and without objection on that score, and the parties were all present in court, so that no surprise has resulted, and the de-fendánts have not been at any disadvantage; and, according to the Code, a variance between the allegations of the pleadings and the proof is not to be regarded as material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. •Therefore I think that this point is to be considered, and that, if necessary, the court should allow the pleadings to be amended after the verdict, to make them conform to the evidence. The first question is, did .she make such a contract? I think that it is conceded that such a contract was made with Robert. The only question, then,.is at what date?
There is one other point that I wish to refer to. There seems to be had blood between the brothers in this case. Now, wherever there is anything of that sort, tiie only legitimate use that can be made of it by the jury is in weighing the testimony of the parties. If the witness seems to be swayed hv prejudice, or envy, or malice, of course that affects his testimony, but, aside from that, it ought not to prejudice this case either for or against the government.
And as to the pension agent, I do not think that he is open to criticism on account of his diligencie; that is what he is employed for. The United States government has been exceedingly generous to its soldiers, and to their relatives, and has provided a splendid pension fund, and it is perfectly right and proper that it should provide all due and necessary care against peculations from that fund, and that the officers employed should be diligent and active in performing their services. And the testimony of that witness is to he weighed and considered just as the testimony of the other witnesses, and from all the testimony you are to determine the facts and find your verdict.