Anglin v. Chesapeake & O. Ry. Co.

• Decision Date: 22 April 1948
• Docket Number: Civil Action No. 414.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: ANGLIN v. CHESAPEAKE & O. RY. CO.

77 F. Supp. 359

ANGLIN v. CHESAPEAKE & O. RY. CO.

Civil Action No. 414.

District Court, S. D. West Virginia.

April 22, 1948.

W. H. Darnall, of Huntington, W. Va., for petitioner.

Fitzpatrick, Strickling & Marshall, C. W. Strickling, and Amos Bolen, all of Huntington, W. Va. for respondent.

WATKINS, District Judge.

Petitioner has brought this action to secure reinstatement to his former position as a brakeman with the railway company under Section 8(e) of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 308(e). The single issue is one of fact. Did petitioner leave his position to perform training and service in the armed forces?

From the agreed statement of facts and oral evidence, the following facts appear: On July 21, 1942, petitioner was temporarily rejected by his local draft board for physical reasons, and placed in Class 1A-R by his Local Board in Huntington, W. Va., which classification meant that he was held in reserve for further examination. On March 9, 1943, he was inducted into the Navy, but was discharged March 23, 1943, on account of physical disability. On November 30, 1943, he entered employment with respondent as a laborer and was later upgraded and established seniority as a yard brakeman. After being discharged from the Navy he remained, for Selective Service purposes, in Class 1C (discharged). Desiring to get back into the military service, and feeling that he was physically fit for such service, he subsequently requested that he be placed in Class 1A, and on July 21, 1944, he was reclassified by his Local Board and placed in Class 1A. On March 29, 1945, he was ordered to report for "preinduction physical examination" on April 9, 1945. He received this notice when he went home from work on March 30. He did not again report for work. He says he ceased his employment "because I was going into the armed services." He had some business he wanted to look after. His father and mother were separated and he wanted to visit both of them before leaving. His brother who was then home had spent five years in the service without a furlough. He felt that if he passed his physical examination on April 9, he "could expect to be called at any time." He had previously received such a notice to report for physical examination and was actually inducted into service two weeks after such examination. Under the Selective Service rules then in force he could be inducted ten days after passing the physical examination, but in practice, actual induction by this particular Local Board occurred on an average of about 30 days after registrant passed the physical examination, but in some cases more than 90 days thereafter. He felt there was considerable doubt as to whether he would pass the examination, although there was good reason to believe that he would be accepted. He felt that he was in fact physically fit, and with full knowledge of his previous rejection, he realized that his Local Board had now taken him out of the classification for the physically unfit and placed him in Class 1A, the classification for those immediately available for military service. If he was not accepted for military service on April 9, he intended to return to his employment with respondent. He reported on that day, passed his physical examination, and was accepted. They told him that same day that he had passed and that he could expect to be called for actual induction any day. Under date of April 16 the Local Board mailed him the official written notification that he had been accepted for military service. About April 15-20, the respondent was badly in need of railroad employes and Engel M. Green, the terminal trainmaster in charge of employment of brakemen went to see petitioner to ask why he had not been working. Green testified as follows: "So I got busy and I knew Mr. Anglin stayed around up there near the hospital at that drugstore, at least I had seen him there frequently and I went up there to see if I could locate him and I found him and I asked him why he wasn't working. And he says, `well, I have been called in to the service,' and I says, `well, why didn't you say something to us about it.' `Well,' he said, `I didn't think at the time it was necessary, but I was going to let you know,' something to that effect, `before I left,' and he says, `will it be necessary for me now to go to the office.' I said `no, if you have been re-called in the service you are working for Uncle Sam and it will not be necessary for you to report for duty on the yard.' So that was about the extent of the conversation. He said he wanted, he had some things to look after and he wanted, I believe, to visit his parents before he left. He didn't know just what date he would go but he had some things to look after and I said, `All right, as far as I am concerned, why you're in the Army,' and that was about the extent of it."

On May 3, 1945, petitioner was ordered by his Local Board to report for induction on May 14, at which time and place he appeared, but because his records were incomplete he was sent home with advice that he would be called later. Petitioner expected to be called most any day. Accordingly, on June 4, 1945, he was notified to report for induction on June 15, 1945, when he was actually inducted into the U. S. Marine Corps and sent to Paris Island, S. C., for duty, from which place he was honorably discharged from service, for physical reasons, on August 11, 1945. He applied for and was reinstated in his old position with defendant on September 1, 1945, with full seniority. But upon objection made by the local railroad union on October 20, 1945, respondent removed petitioner from service as a brakeman and removed his name from the seniority roster. It was claimed that petitioner had forfeited his seniority as a yard brakeman by reason of failure to comply with Rule 25 of the Yardmen's Agreement, namely,...