Angelovic v. Lehigh Valley R. Co, 186 F.2d 37, 3rd Cir. (1950)

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Filed: 1950-12-29 Precedential Status: Precedential Citations: 186 F.2d 37 Docket: 10204_1
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  186 F.2d 37 ANGELOVICv.LEHIGH VALLEY R. CO.  No. 10204. United States Court of Appeals, Third Circuit.  Argued November 14, 1950. Filed December 29, 1950. Joseph P. Brennan, Asst. U. S. Atty., Scranton, Pa., (Arthur A. Maguire,U. S. Atty., Scranton, Pa., on the brief), for appellant.Joseph F. Gallagher, Wilkes-Barre, Pa., (John C. Phillips, Wilkes-Barre,Pa., on the brief), for appellee.Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.McLAUGHLIN, Circuit Judge.1This is a veteran's reemployment action under Section 308 of the SelectiveTraining and Service Act of 1940, as amended. 1  The District Court held that petitioner-appellant was not entitled to reinstatement to his former position or to compensation for loss of wages. From the judgment in favor of therespondent-appellee this appeal is taken.2At the time of his induction into the Army, appellant was a laborer in theemploy of respondent. He received an honorable discharge on July 19, 1945.On his return he found that his mother was very ill and bedfast . He was theonly one to take care of her and therefore could not leave the house for anyextended period of time. His work for respondent would have been locatedfrom one to nine miles from his house and this would have necessitated his being away for about ten hours a day. On July 24, 1945, he went torespondent's office where he saw Louis Sparr, an assistant foreman in themaintenance of way department. Sparr was one of two people, acting for appellee, to whom returning veterans applied for their old jobs. Appellant toldSparr he had been discharged from the Army and inquired whether he was still  on the roster. Sparr, as the Trial Court states in its Finding of Fact No. 3,answered in the affirmative and asked petitioner whether he was ready to go back to work. Petitioner replied, Not for a while yet. Sparr told petitioner thathe was to come back whenever he was ready to go to work. Finding of Fact No.4 reads: Within ninety days from the date of Petitioner's honorable dischargefrom the United States Army, on approximately August 24, 1945, Petitioner returned to Sparr, said he was still not ready to go to work, and asked for awritten leave of absence. Sparr said he could not give Petitioner a written leaveof absence, but told Petitioner to come back and let him know when he wasready to go to work. The fifth Finding of Fact reads: Within ninety days fromthe date of Petitioner's honorable discharge from the United States Army, onapproximately October 10, 1945, when Petitioner was employed by the EastMauch Chunk School District, Petitioner returned again to Sparr, at which timea conversation similar to that of August 24, 1945 occurred. Appellant'semployment referred to in this finding was of a temporary nature, consisting of the supervision of setting-up exercises, two hours in the morning and two hoursin the afternoon, at a school within four blocks of his home. The sixth Findingof Fact states: When Petitioner visited Sparr within the ninety day period,Sparr said to Petitioner, `Don't forget your ninety days.' 3In February, 1946, appellant's brother came to live with their mother. Until thenappellant's only employment had been the temporary position just described.However, with his brother home, as appellant stated, he was no longer tiedclose to the house. He therefore returned to work as a laborer for appellee inMarch, 1946. 2  He continued in that situation for about a week. After that time, by reason of seniority, he was given a position as slope watchman. On April 4,1946, he was discharged from the employ of the railroad. There is no reasongiven in the record for the discharge.4Section 308(b) of the Selective Training and Service Act, as amended, amongother things, requires that, to make himself eligible for reemployment under thestatute, the returning veteran must make * * * application for reemploymentwithin ninety days after he is released from such training and service * * *. Itis this requirement that poses the question confronting us. Did appellant makehis application for reemployment within the ninety day period?5Appellee bases its argument, as stated in its brief, upon the premise that * * *it is conceded by both sides that the Petitioner requested a leave of absence and it was definitely refused.    (Emphasis supplied). There is no such concession. Nor is there any such finding by the Trial Court. Whether the veteran was givena leave of absence or, at least, was led to believe by Sparr that he had beenallowed a leave, is decisive of the issue. We agree with appellee that, where the  request is refused, an application for a leave of absence within time by areturning veteran cannot act to extend the ninety day period. Appellant does notso contend. He urges that under the Trial Court's Findings of Fact he wasgranted the leave. He does not pretend that this permission was in writing, as hehad desired. He testifies specifically that Sparr told him he could not give him aleave of absence in writing.6It is, by now, well settled that This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285,66 S.Ct. 1105, 1111, 90 L.Ed. 1230; Kay v. General Cable Corporation, 3 Cir.,144 F.2d 653, 654; Bochterle v. Albert Robbins, Inc., 3 Cir., 165 F.2d 942, 943.The governing law is our decision in Grasso v. Crowhurst, 3 Cir., 154 F.2d 208,certiorari denied 329 U.S. 714, 67 S.Ct. 44, 91 L.Ed. 620. In that case Grasso,the veteran, applied for a leave of absence. The request was not refused butmade dependent upon the opinion of the employer's doctor. The latter  pronounced Grasso permanently unfit for the particular employment. Grassorelied on that opinion and did not, after that, apply for reinstatement. The TrialJudge found that the physician had been mistaken about Grasso's condition andthat the latter was actually qualified to perform the duties of his old position.We held that the request for leave of absence was an application for reemployment under the statute and that the plant physician's erroneous opinionhad deprived the veteran of the opportunity of renewing that applicationwithout attaching any terms to it.7In the matter before us, it is undisputed that Angelovic asked for a leave of absence within time and, under the District Court's Findings of Fact, we think that appellee, through its proper representative, gave him reasonable ground for  believing that his request had been granted. Throughout the ninety day period,the veteran kept his employer posted regarding his then present inability toreturn. On each occasion he was told to come back when he was ready to go towork. Had the leave of absence been refused, Angelovic could have faced hisdilemma and, sooner than lose his right to reemployment, might have obtainedsomeone to stay with his mother in his absence. Sparr did say, Don't forgetyour ninety days . But, in the light of the affirmative Findings of Fact of theTrial Court, we cannot say that this, at least ambiguous statement destroyed the permission given Angelovic at the same interview to return when he was readyto again take up his job with the railroad. Sparr's reemployment of appellant athis old occupation, in March, 1946, when conditions at home permitted hisreturn, strongly supports this conclusion. Under the findings, it would seem thatwhen appellee rehired Angelovic it performed the commitment it had givenhim to restore him to his job when he was able to come back to work.   Notes:50 U.S.C.A.Appendix, § 308The mother died September 24, 19468The judgment of the District Court will be reversed and the cause remanded tothat court for further proceedings in accordance with this opinion.12
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