dissenting :
The statutes upon which the plaintiffs found their claims are 50 U.S.C. Appendix (1952 ed.) § 1002 and 10 U.S.C. (1952 ed.) § 846. The former statute says:
*259Any person who is in active service and who is officially determined to be absent in a status of missing, missing in action, interned in a foreign country, captured by a hostile force, beleaguered or besieged shall, for the period he is officially carried or determined to be in any such status, be entitled to receive or to have credited to his account the same pay and allowances to which he was entitled at the beginning of such period of absence. * * *
The second statute cited above is to the same effect.
The plaintiffs, soldiers in the Korean War, were captured by North Korean or Chinese communist forces, two of them in 1950 and the third in 1951, and were prisoners until August 5, 1953, at which time the repatriation of prisoners following the Armistice began. The plaintiffs refused repatriation to the United States and elected to go to communist China. All three were dishonorably discharged from the Army on January 23, 1954. All three returned to the United States in July, 1955.
The plaintiffs have not been paid for the periods between the dates of their capture by the enemy and the date of their release from prison. They sue for that pay and point to the statutes. The statutes seem to say that they are entitled to their pay.
The Government says the statute should not be read as entitling them to their pay because the Army and this court have found as a fact that their conduct, while prisoners of war, was traitorous and contemptible.
No sophisticated person needs be told that there is much that a court can do with the literal language of a statute in order to avoid an absurd result or to produce a just result or one consistent with an important policy. But the judicial rewriting of statutes ought to be indulged in with reluctance, and only when it is reasonably certain that the process will not do more harm than good, will not confuse the law rather than enlighten it.
The court, by adopting the Government’s argument, has in effect placed in the disbursing officers of the Government the function of amending the statutes fixing the pay of military or civilian personnel on a quantum, meruit basis. *260Both the military and civilian branches of Government service have their quotas of dead wood, and their quotas of persons of extraordinary value to the Government. Presumably, the paymasters may not pay the latter persons more than the statutes permit, but under today’s decision it would seem that they may pay the former persons only what they are worth, which would be well below the statutory scale.
It will be said, of course, and truthfully said, that the conduct of the plaintiffs as prisoners of war was indecent and reprehensible. The Government says that they must not be “rewarded” for such conduct by getting the pay which the statutes provide for prisoners of war. There has never been a war in which some prisoners have not acted contemptibly, in comparison with the conduct of their better balanced comrades. In modern warfare, with its subtle brainwashing techniques, one of the perils to badly balanced youths is the peril of being taken prisoner, of being persuaded to disloyal conduct, and of coming out of prison with their lives irreparably ruined. The amounts of pay here sued for by these plaintiffs would be a fabulous reward, indeed, for the tragic thing that happened to them in prison.
The statutes provide for the trial and punishment of soldiers for misconduct. If these men had been subjected to trial by a court-martial, or by a civilian court, the court would have considered their age, their upbringing, their mental qualities, the nature of the pressures to which they were exposed, and would have rendered an appropriate judgment. The judgment would not have included forfeiture of accrued pay. The Uniform Code of Military Justice, effective May 5,1950, 64 Stat. 126, 50 U.S.C. § 638, provides that no forfeiture of pay and allowances shall extend to any pay or allowances accrued before the date when a court-martial sentence is approved by the convening authority.
It is noteworthy that after Congress abolished the historical power of courts-martial to forfeit accrued pay, the Army, apparently for the first time in history, forfeited the pay already accrued to these plaintiffs, not by the process *261of trial and sentence, which was forbidden by statute, but by the crude and primitive method of refusing to give them their money. Finding nothing in the law books to justify its refusal to pay these men, it threw the books away and just refused to pay them. It could have set before these confused young men a better example of government by law.
Congress has never been willing to venture into the field of distinguishing, in its pay schedules between good soldiers and bad soldiers, or between bad soldiers and soldiers so bad that they are beneath contempt. I venture to predict that it will never do so, because the task would be impossible.
The plaintiffs have incurred the just condemnation of public opinion. The courts have nothing to do with that judgment. In court they are entitled to judgment according to law. I think that, according to law, they are entitled to their pay.
FINDINGS OF FACT
The court, having considered the evidence, the report of Trial Commissioner C. Murray Bernhardt, and the briefs and argument of counsel, makes findings of fact as follows:
1. The plaintiffs, Otho G. Bell, William A. Cowart, and Lewie W. Griggs, were citizens of the United States at the time of their enlistments in the United States Army, and there is no evidence that their status as such has changed.
2. The plaintiffs, Bell, Cowart, and Griggs, enlisted in the United States Army on the respective dates of January 29, 1949, January 7, 1949, and August 4,1949.
3. The plaintiffs, Bell, Cowart, and Griggs, were captured by the North Korean and/or Chinese communist forces in Korea, along with other United States soldiers, on the respective dates of November 30, 1950, July 12, 1950, and April 25, 1951.
4. At the times of their capture as aforesaid the plaintiffs were privates first class in the United States Army.
5. Upon their capture as aforesaid the plaintiffs Bell and Griggs, were detained, respectively, in Prisoner of War Camp No. 5 located at Pyoktong, North Korea, and in Prisoner of War Camp No. 1. The record does not disclose the place of detention of the plaintiff Cowart.
*262ACTIVITIES OF PLAINTIFFS DURING DETENTION
6. The parties by their attorneys entered into a stipulation of record by the terms of which, for the purposes of this proceeding, certain facts were to be deemed to have been elicited from defendant’s witnesses testifying under oath, without the necessity of calling such witnesses to trial. The plaintiffs did not rebut the facts so elicited and waived the right to testify or to call witnesses to testify in rebuttal of the said facts, although the plaintiffs did reserve the right to object to the materiality and relevancy of any of the facts. The facts so set forth in the stipulation related to the activities of the plaintiffs while they were detained as prisoners-of war, and (as slightly modified) are provided in detail as to each plaintiff in succeeding findings 7 through 30.
OTHO G. BELL
7. During his confinement by enemy forces as aforesaid plaintiff Bell voluntarily served as a monitor in required squad study group meetings organized by the Chinese, beginning about January 1, 1951. These were also known as “forced study groups”, which POW’s were forced to attend under threat of duress. Armed guards were present at these sessions. The programs consisted of lectures depicting the derogatory aspects of life in the United States, and extolling the idyllic aspects of life under communism. As squad monitor, Bell procured communist propaganda literature from the enemy, distributed said writings among the squad members, and instructed them to read and discuss this literature. He threatened to turn in the names of any prisoners of war who refused to read or discuss favorably these communist propaganda handouts. In these forced attendance study group meetings he also lectured and led the discussions favorable to the communist cause and condemnatory of the United States, e.g., stating that the United States engaged in germ warfare, that the United States had caused the Korean war, that American forces had committed atrocities, that there were many more advantages about communism than about democracy. He voluntarily attended the special Voluntary Study Group maintained by the Chinese to in-*263doctrínate the so-called “progressives”, a term meaning POW’s who consorted, fraternized and cooperated with their captors. He voluntarily joined the Peace Committee, whose members espoused communism through public address system broadcasts, and through distribution of propaganda articles and petitions.
8. Plaintiff Bell made tape recordings which were then broadcast over the Peiping radio and over the prison camp’s public address system. He stated that the Chinese treatment of the prisoners of war was good, requested that his parents and relatives write President Truman to end the war and withdraw the Seventh Fleet from Formosa, said that the Korean war was senseless, avowed that on the orders of his platoon leader, his men killed North Korean prisoners of war, vilified President Truman as a warmonger, averred that life was better in China than in the United States, declared the American political parties were led by imperialists.
9. Plaintiff Bell participated in numerous communist propaganda activities. He wrote articles which appeared in the camp newspaper, Towards Truth And Peace, and in magazines entitled, People's China, and China Monthly Review. In these articles plaintiff alleged that American troops had committed atrocities against North Korean civilians and enemy soldiers and that he personally had been ordered to kill women and children and not to take prisoners. He ridiculed the American Army. He praised the good treatment accorded the prisoners of war by the Chinese. He wrote that the United States was unjustified in sending troops to Korea, and that he wanted to go to China to fight for peace and did not want to return to America. He urged the prisoners of war to vow to fight for world peace on their return to the United States. He accused President Truman of forcing the United States into war and said that if given the opportunity he would run a tank over the President’s body. Plaintiff Bell was paid money to write these articles. With the money he was paid to write these articles, he purchased candy and cigarettes in the Chinese Post Exchange in Pyoktong.
*26410. Plaintiff Bell was a member of the so-called “Wall Paper Committee” whose duties were to hang enemy propaganda articles, pictures, cartoons and slogans on the camp bulletin board. He delivered lectures before his company and to the camp upon American aggression, and belittled America’s economic and educational systems. He wrote letters to the United Nations in which he declared that American troops had committed atrocities against enemy civilians and soldiers, and that prisoners of war were receiving good treatment from their captors.
11. Plaintiff Bell drew cartoons and posters depicting American atrocities and use of germ warfare, which were pinned upon the camp bulletin boards and printed in the above-named publications. He drew up and signed peace petitions addressed to President Truman, the United Nations, to relatives of prisoners of war, and to peace organizations, e.g., Stockholm Peace Appeal, the Vienna Peace Conference, and the Asia and Pacific Peace Conference. Further, the Chinese made motion pictures of plaintiff as he signed the petition addressed to the Asia and Pacific Peace Conference. He led a group of so-called progressives in camp carrying banners depicting President Truman as a clown and slogans reading “Down with capitalists”. Plaintiff Bell appeared in bi-monthly plays — one entitled “Golden Boy” depicting poverty and racial discrimination in the United States, and the other which he wrote was entitled “The Highest Stage of Capitalism” concerning the overthrow of the United States. He appeared voluntarily in a Chinese motion picture in which he portrayed an American rifleman captured by the communists. The motion picture depicted atrocities committed by American soldiers and the low morale of the American forces. He also signed surrender leaflets. He attempted to persuade and/or persuaded other prisoners of war to join the Voluntary Study Group and the Peace Committee. He also tried to persuade and/or persuaded other POW’s to sign petitions, to follow and accept communistic theories, and to make recordings.
12. Plaintiff Bell made the following statements — that for every good point about the American Government, there were three good things about communism, that the South *265Koreans started the war and that it was like the Civil War in the United States, that American troops were tools and hatchet-men of American imperialists, that the United States and the United Nations had no right to be in the wax’, that the United States engaged in germ warfare, that if he were given a weapon he would fight against the United States and that he had attempted to join the Chinese Army but had been refused, that he would return from China in five years and would teach communism and help fight for communism, that the working people are slaves and cannon fodder for the capitalists, that he was not going to return to the United States and planned to renounce his citizenship and stay in China to fight for the peoples’ side.
13. Plaintiff Bell wore the Chinese uniform, plus the Peace Dove Medal (given by the Chinese to show that the wearer was in sympathy with communism) and the Mao Tse Tsung medal (given by the Chinese to so-called “progressives”) to identify them as communists and to reward them for their achievements and learning in communistic ideology. He consorted with the Chinese. He attended enemy parties held in Pyoktong. He visited the Chinese company and regimental headquarters in the prison camp frequently, in the day and at night. He took walks and talked with Chinese officers, inside and outside the camp. He was accorded special privileges by the Chinese, e.g., more and better food and drink, better medical treatment, freedom of the camp, lighter work details.
14. As squad leader in Camp No. 5, he sold food intended for the sick to other POW’s at $5 a bowl. As monitor of the forced study group, he had food rations for some men cut down because they would not favorably discuss communism, and threatened to turn in the names of men who did not study the communistic literature. He informed on other POW’s. As monitor of the forced study group, he would inform the Chinese if a squad member refused to read required propaganda literature, or failed to voice a procom-munist opinion in the discussion periods. He told the Chinese that a certain POW was planning to escape and, as a result, the POW was placed in solitary confinement'. He told the Chinese that he and others in his outfit had killed *266Gánese POW’s and this falsification caused the Chinese to attempt to pressure another POW into writing a story about these atrocities. Pie told the Chinese that the 2d Infantry Division massacred South Korean civilians. A United States POW was interrogated as a result of plaintiff’s written statement to the Chinese that American troops herded communist POW’s on a ship and injected poison gas into their blood, that the American Air Force bombed women and children, and that he saw an American lieutenant and enlisted men rape a Korean woman.
15. Plaintiff Bell turned in names to the Chinese of POW’s whom he had ordered to obtain their rations, but who had been too ill to obey. He reported a POW who had refused to fall out for exercise, who was therefore sentenced to 15 days at hard labor with his rations cut to one meal a day. He informed on POW’s who stole wood from the Chinese. He also informed the Chinese that POW’s had stolen food for which acts they were put into solitary confinement. As a result of plaintiff’s relation to the Chinese, a POW had a fight with another POW and one of them was placed in solitary. Because he reported to the Chinese that certain POW’s had criticized him, these POW’s were made to stand outdoors in the sun all day and were sentenced to hard labor. He reported to the Chinese the name of a POW who planned to escape, and the latter was placed in “the hole” 4 where he died. Because he gave the names to the Chinese of POW’s who participated in a sit-down strike, one of the men was bayonetted and the rest were placed in solitary. A POW was forced to stand in an icy river because plaintiff told the Chinese that the former had “talked back” to Mm.
16. The Korean armistice was signed July 27, 1953, and prisoner repatriation began August 5, 1953, at Panmunjon. Plaintiff Bell refused repatriation and voluntarily elected to go to communist China. After going to communist China, he attended the Ideological Reformation School in Taiyuan, China, where communist ideology was taught, for seven months. He was assigned to a machine center on a collective farm in the Yellow River Valley, China, where *267he worked until his return to the United States. On January 23, 1954, plaintiff Bell was dishonorably discharged from the United States Army. He returned to the United States in July 1955.
WILLIAM A. COWART
17. During his confinement by enemy forces as aforesaid plaintiff Cowart stole food from other POW’s in the North Korean prison camps. He visited the headquarters of the North Korean forces frequently, and conversed with Korean officers and Russian civilians there. He told the North Korean captors that two fellow POW’s had beaten him for stealing their food. He informed a North Korean colonel that the POW’s had disobeyed orders by giving prisoners too ill to work full rations rather than half rations. He informed North Korean captors that a POW had stolen foodstuffs and that a POW was planning to escape. He signed a petition calling on the United Nations forces to lay down their arms. He received extra tobacco rations from the North Korean guards and was given light work details.
18. Subsequent to October 19, 1951, plaintiff Cowart was transferred to Chinese Prisoner of War Camp No. 3. He was a monitor of the forced study group there, and was a member of the Voluntary Study Group attended by all so-called “progressives” for the purpose of communistic indoctrination. He influenced or attempted to influence other POW’s to join the Voluntary Study Group and to believe in the communistic dogma. He made tape recordings which were later broadcast over Peiping radio and over the camp public address system. Pie therein broadcast about the good treatment accorded to POW’s by the Chinese. He urged that America end the war and the American Government be petitioned to end the war. He declared that the Korean war was useless, that American soldiers were being cheated by the capitalists and warmongers of Wall Street, and that America should cooperate with the Chinese.
19. Plaintiff Cowart was a member of the Peace Committee which drew up, signed and circulated peace petitions. He wrote propaganda articles which appeared in Towards *268Truth And Peace and in the China Monthly Review. He wrote that American soldiers committed atrocities, that Americans used germ warfare, that the Chinese had a better educational system than the United States in that in America only the wealthy could obtain an education, that the United States used germ warfare, that the American people had been misled and that the United States was waging an aggressive war. He reviewed the communist books he had read. He drew propaganda posters and cartoons, depicting capitalists living off the masses, Uncle Sam hanging from a tree or lying in a coffin with the words written “For Peace and Against American Aggression” and “Down With War Mongers”, depicting Uncle Sam carrying a bomb, and Uncle Sam on his knees before a Chinese soldier armed with a bayonet.
20. Plaintiff Cowart acted in several camp plays. One play mocked the various United Nations. Other plays depicted that the use of a germ warfare bomb and the use of an atomic bomb benefited capitalists, that civilians were being coerced to join the American Army. In another play, he portrayed an American POW who was being treated well by the Chinese while other American soldiers were stupidly fighting in foxholes. Another play satirized President Truman and General Eidgway, at the end of which the actors, including Cowart, said “Down With the United States.”
21. Plaintiff Cowart wore a Chinese uniform, the Peace Dove Medal and the Stalin Badge. He informed on POW infractions or actions, for which they were later punished. He reported to the Chinese that POW’s had stolen food from the Chinese warehouse, that certain POW’s made anticommunist remarks, that he (Cowart) had been beaten by POW’s, that certain POW’s were either not studying the propaganda given to them or were not giving the correct answers in the forced study group meetings, that a POW was planning to escape, that certain POW’s had torn up slogans and pictures in the progresssives’ Study Club Room.
22. Plaintiff Cowart consorted with the Chinese running the prisoner of war camp, attended Chinese parties, walked and talked with Chinese officers, guards and interpreters, and lived for some time at the Chinese regimental headquarters. *269He was given special privileges, e.g., better rations, quarters, no work details, and was allowed to make purchases at the Chinese Post Exchange in Pyong-yang.
23. Plaintiff Cowart stated that he believed in communism, that any thinking person would adopt communism, that he hated America, that its Government should be overthrown, that he desired to study in China and return to the United States in five years to help in the overthrow of the Government, which was inevitable, that the American Government was f ascistic, similar to the German Government. He wrote a letter to Mao Tse Tsung in which he stated his belief in communism, criticized the American economic and educational systems, asked for the opportunity to study in China and join the communist party, and gave thanks for the kind treatment accorded him by the Chinese.
24. The Korean armistice was signed July 27, 1953, and prisoner repatriation began August 5, 1953, at Panmunjon. Plaintiff Cowart refused repatriation and voluntarily elected to go to communist China. After going to communist China he voluntarily attended a communist indoctrination school at Taiyuan, China, where communist ideology was taught, for seven months. On January 23, 1954, plaintiff Cowart was dishonorably discharged from the United States Army. In July 1955, he returned to the United States.
LEWIE W. GRIGGS
25. During his confinement by enemy forces as aforesaid plaintiff Griggs was a monitor in the forced study group meetings in the prisoner of war camp wherein he led the discussions after he had lectured on communism. He was also a member of the Voluntary Study Group which he attended regularly with other so-called “progressives”. He was a member of the Peace Committee which drew up, signed and circulated peace petitions. He attempted to influence and persuade POW’s to join the Voluntary Study Group and Peace Committee, to sign petitions, and to follow communistic doctrines. He wore a Peace Dove Medal, and also wore a black arm band at Stalin’s death. As a member of the Permanent Peace Committee he wore a cloth inscribed with Chinese writing on his chest.
*27026. Plaintiff Griggs was a member of a Kangaroo Court invoking punishment on POW’s for infractors. He appeared as a witness against a POW and signed his name to the charges. A POW, after being released from a cellar by the Chinese, was returned to the cellar at the suggestion of the Peace Committee on which plaintiff Griggs served. He recommended to the Chinese various punishments to be meted out to POW’s for breaking rules, while other squad members stated that nothing should be done. He informed on POW’s. He revealed names to the Chinese of POW’s who led a mass exodus from a communist entertainment show. He disclosed to the Chinese the name of a POW who had planned to escape. As monitor, he disclosed the names of those who criticized communism or refused to study communistic literature, and revealed the names of POW’s who had stolen food and tobacco from the Chinese warehouse.
27. Plaintiff Griggs made recordings for the Chinese radio, which were also sent out over the camp public address system. Eoundtable discussions of the so-called “progressives”, in which plaintiff participated, were recorded and broadcast. He spoke over the camp public address system. The subjects of these recordings and broadcasts were, that atrocities had been committed by American troops, that the American Government should be overthrown, that the Korean war was the fault of the United States. One of the recordings, which was directed to plaintiff’s mother and played back over the public address system, requested that his mother join organizations for peace and persuade President Truman to withdraw troops from Korea. As a member of the Peace Committee, he drew up, signed and circulated peace petitions which urged the cessation of war and the use of bombs and germ warfare by the United States. He signed surrender leaflets and letters addressed to his friends which were dropped behind United Nations lines. These letters and leaflets urged surrender and described the good treatment provided by the Chinese.
28. Plaintiff Griggs wrote propaganda articles to which he signed his own name or unauthorizedly signed the name of another POW. These articles were published in Towards Truth and Peace and in other camp publications. In these *271articles he urged that the United States should cease fighting, declared that the United States used germ warfare and committed atrocities, and stated that the Chinese were good friends. He delivered speeches to groups of POW’s to the effect that he and a committee had read confessions of American Air Force officers as to the use of bacteriological warfare and that he (Griggs) believed the confessions. He wrote letters to various groups and individuals in the United States urging them to write to the Government requesting peace. He uttered pro-communist and anti-American statements, e.g., that the United States was the aggressor, a warmonger, that American capitalists in control of the Government started the Korean war, that if he were given a weapon he would .fight the United Nations forces, that the United States used germ warfare, that the study of communism was beginning to make sense to him, that he believed in communism, that the Chinese were right in embracing communism, that when he returned to the United States it would be communistic and he would be a hero, that the whole world would be dominated by communism in ten years and that individuals similar to him would be leaders, that he would join the communist party when he returned to the United States, that he would sell out the United States for a tailor-made cigarette.
29. Plaintiff Griggs consorted with the Chinese in the prisoner of war camp, attended enemy parties, visited Chinese headquarters frequently, walked and talked with enemy officers and interpreters, and called or referred to the Chinese as “comrades”. He was accorded special privileges in that he received better food, drink, medical treatment, had freedom of the camp and did not have to go out on work details.
30. The Korean armistice was signed July 27, 1953, and prisoner repatriation began August 5, 1953, at Panmunjon. Plaintiff refused repatriation and voluntarily elected to go to communist China. He signed letters prepared by the Chinese addressed to the families of Edward Dickenson and Claude Dickenson. In these letters plaintiff declared the imprisonment of these two men was unjust. He attended a communist indoctrination school at Taiyuan, China, for six *272months. He was assigned to a state farm in the Yellow River Valley, China, and later was transferred to a factory at Kaifeng until his return to the United States. On January 23, 1954, plaintiff Griggs was dishonorably discharged from the United States Army. He returned to the United States in July 1955. On his return he stated that he returned to the United States because China was a slave state and because having a job, going to school, taking vacations and having a family and hobbies were practically out of reach in China.
GENERAL
31. With reference to the plaintiffs’ assertions while confined as POW’s that the United States engaged in germ warfare in Korea, as related in findings 7,11,12, 19, 20, 27 and 28, supra, at trial the plaintiffs’ counsel stipulated that neither the United States nor any of the United Nations forces engaged in germ warfare in Korea. The defendant produced as witnesses certain Army staff officers who testified authoritatively that the United States did not authorize the use of germ warfare in Korea, did not ship any materials or equipment to Korea for that purpose, and received no requests for such materials or equipment, although the defendant conceded that at all relevant times the United States possessed in the United States a military potential to wage germ warfare. In view of the concession by plaintiff’s counsel that the United States did not use germ warfare in Korea, the commissioner sustained plaintiffs’ objection to the defendant’s testimony but permitted it to remain in the record as defendant’s offer of proof under Rule 41 (c). The plaintiffs endeavored, without success and only through the medium of cross-examining defendant’s witnesses, to establish that they originally had reasonable grounds to believe that their statements as to germ warfare while POW’s were true when made.
32. With reference to plaintiff Bell’s statement to the Chinese that American troops had injected poison gas into the blood of communist POW’s on a ship (finding 14, supra), plaintiffs’ counsel stipulated at trial that this had not been done.
*27333. With reference to the plaintiffs’ assertions while confined as POW’s that conditions in the POW camps in North Korea where captured Americans and their allies were confined were good, plaintiffs’ counsel stipulated that such conditions were not good. The defendant established by affirmative proof that conditions in the communist POW camps in North Korea were so grossly inadequate as to food,'clothing, sanitation, shelter, and medical care that the death rate of POW’s was nearly 40 percent in certain camps.
DAMAGES
34. After each plaintiff was captured and before each plaintiff refused repatriation and elected to go to communist China, the Department of the Army took routine administrative action to reflect a change in each plaintiff’s records to show them as Corporals as of May 1, 1953. None of the plaintiffs has received any pay for the period from the date he was captured to January 23, 1954, the date each was dishonorably discharged, except amounts advanced by the Army for insurance and allotments for the dependents of each plaintiff. It was stipulated by the parties that, if this court decides that the plaintiffs, or any of them, are entitled to recover as a matter of law, the net amount of damage suffered by each plaintiff by reason of the allegations in the petition is as follows:
Otho G. Bell_$1,455.29
■William A. Cowart_ 4,991.13
Lewie W. Griggs_ 2, 810.14
CONCLUSION OF LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiffs are not entitled to recover, and the petition therefore is dismissed.
The court further concludes as a matter of law that the defendant is not entitled to recover of and from the plaintiffs on its counterclaims, and the counterclaims are therefore dismissed.
The “hole” was a damp hole In the earth of dimensions which did not permit the occupant to stand, sit, or lie down. It was covered by a tin roof and lacked sanitation facilities.