military training and service should be shared generally in accordance with a fair and just system * * * ' though such declaration was hardly needed. Every consideration of fairness and justice makes it imperative that the Statute should be construed as liberally as possible so that military service should entail no greater setback in the private pursuit or career of the returning soldier than is unavoidable. The question here presented, therefore, is not to be solved by the application of abstract tests or formulae; but the factors which usually determine the nature of a disputed relationship must be considered in the light of the purpose which Congress intended to accomplish.'
The defendant argues that this court must restrict its relief to that requested by the Statement of Claim. Rule 54(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides: ' * * * Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.' The fact that the complaint requested that the defendant be required to restore complainant to his former position is not a sufficient reason to dismiss the complaint. 'But a statement of claim is not measured by the relief asked. If an adequate cause of action exists, the court may give the proper remedy regardless of the prayer of the complainant.' Liquid Carbonic Corporation v. Goodyear Tire & Rubber Co., supra, 38 F.Supp.at page 525. See also Lockart v. Leeds, 195 U.S. 427, 436, 25 S. Ct. 76, 49 L. Ed. 263; Keiser v. Walsh, 73 App.D.C. 167, 118 F.2d 13; Gay v. E. H. Moore Inc., D.C.E.D. Okl., 26 F.Supp. 749, 751; Falk v. Levine, D.C. Mass., 60 F.Supp. 660, 663.
Section 3(d) of the Law provides that in case any private employer fails or refuses to comply with the provisions of the Law the district court of the United States shall have the power, as an incident to its power to specifically require the employer to comply with the provisions of the Law, to compensate the person entitled thereto for any loss of wages or benefits suffered by reason of the employer's unlawful action.
Although in his prayer for relief, the complainant asked that the defendant be required 'to compensate him for his loss of salary, commissions, and the monetary value of the lodging, all of which would have been paid and furnished but for defendant's unlawful failure to reemploy him,' he has not alleged any facts to show that he has suffered a loss in wages and to what extent. Compensation does not follow as a matter of course upon the employer's failure or refusal to reemploy the veteran. The Law does not so provide. It may well be that in fact the complainant has not suffered any loss due to the defendant's failure to reemploy him. Of course we are not holding that the complainant is not entitled to compensation, for his loss of wages may in fact be to the extent requested by him. All we do hold is that the complaint as it now stands does not set forth any facts, other than the defendant's refusal to reemploy him, upon which this court may award the complainant compensation. However, this omission does not in any wise affect the complainant's action for an order to have the defendant reemploy him. See Hall v. Union Light, Heat & Power Co., D.C. Ky., 53 F.Supp. 817.
Accordingly, since the complaint states a good cause of action by alleging facts which meet the requirements of the Army Reserve and Retired Law, the motion to dismiss the complaint is denied.