Fortenberry v. OWEN BROTHERS PACKING COMPANY

• Decision Date: 25 January 1966
• Docket Number: Civ. A. No. 1279.
• Citation: 267 F. Supp. 605
• Parties: Sam William FORTENBERRY, Plaintiff, v. OWEN BROTHERS PACKING COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

267 F. Supp. 605

Sam William FORTENBERRY, Plaintiff, v. OWEN BROTHERS PACKING COMPANY, Defendant.

Civ. A. No. 1279.

United States District Court S. D. Mississippi, E. D.

January 25, 1966.

Charles Donahue, Sol., Beverley R. Worrell, Regional Atty., U. S. Dept. of Labor, Atlanta, Ga., Norman H. Winston, Assoc. Regional Atty., Roger Martinson, Daniel M. Williams, Jr., Attys., U. S. Dept. of Labor, Birmingham, Ala., Robert E. Hauberg, U. S. Atty., Jackson, Miss., for plaintiff.

Thomas Y. Minniece, Ethridge, Minniece, Bourdeaux & Jones, Meridian, Miss., for defendant.

DAN M. RUSSELL, Jr., District Judge.

Plaintiff, Sam William Fortenberry, a resident of Philadelphia, Mississippi, filed this action against Owen Brothers Packing Co., Inc., meat packers of Meridian, Mississippi, seeking certain benefits allegedly due him under the provisions of Section 459 of the Universal Military Training and Service Act, 50 (App.) U.S.C.A. At the trial had on December 13, 1965, the evidence showed that plaintiff no longer sought reemployment rights, but based his action on a claim for damages by reason of the refusal of his employer, defendant named above, to restore him to his job following plaintiff's rejection for military service.

Plaintiff began his employment on April 17, 1963, as a day laborer in the sausage department. He was paid by the week. On June 10, 1963, Local Board No. 54, Selective Service System, Philadelphia, Mississippi, ordered plaintiff to report on July 8, 1963 for induction into the Armed Forces of the United States. Plaintiff claimed that he so notified Mr. McFadden, his foreman, and Mr. Mollett, the plant manager. Both supervisory employees denied this notice. On July 3, 1963, plaintiff left his employment, saying it was his last day. His time card subsequently showed him marked "off payroll" on this day. July 4th being a holiday, plaintiff returned to the plant the following day and picked up his pay. Again both Mr. McFadden and Mr. Mollett denied that plaintiff at any time gave any reason for leaving his job. On July 8, 1963, plaintiff reported to his draft board which forwarded him to the induction station at Jackson, Mississippi. On July 9, 1963 he was notified of his rejection for military service; he returned to Philadelphia that night, and on the following morning, July 10, 1963, reported at defendant's plant in Meridian, where he was told that he was off the payroll. Plaintiff thereafter contacted the Regional Director of the Bureau of Veterans' Reemployment Rights, U. S. Department of Labor in Atlanta, Georgia, who, under date of August 6, 1963, wrote to defendant concerning plaintiff's claim. Defendant responded on August 13, 1963, saying that plaintiff had resigned on July 3, 1963, and had only mentioned on July 10, 1963, for the first time, anything about his military rejection. Plaintiff drew eight weeks' unemployment compensation, following which he received a total of $1561.42 in wages from other employment up to June 4, 1964, when, for reasons not related to his employment, he left Meridian to return to Philadelphia. Except for the above mentioned exchange of letters, plaintiff admitted that he had no further contact with defendant, and after securing other employment on September 13, 1963, did not go back to defendant's plant because he "had a job and did not need the old one."

The parties agreed that had plaintiff remained employed by defendant, he would have made $3275.00 from July 10, 1963 up to June 4, 1964, or $1713.58 more than he received from other employment, exclusive of unemployment compensation.

Defendant contends that plaintiff waived his reemployment rights by failing to give notice of his anticipated military induction as his reason for leaving his job, and that after reporting back on July 10, 1963, he should have returned with some evidence of his rejection as the supervisory employees testified he was instructed to do.

As to the necessity of prior notice, none is required by Sec. 9(g) (5) of the Act, 50 App.U.S.C., Sec. 459. The test is whether or not he was required to leave his employment to report for the purpose of being inducted or determining by a preinduction examination his physical fitness to enter the armed forces. He obviously was so required by reason of his order to report on July 8, 1963. See Anglin v. Chesapeake & O. Ry. Co., D.C., 77 F.Supp. 359. This section of the act further provides that upon his rejection, "such employee shall be permitted to return to his position in accordance with the provisions of paragraph (4) of this subsection." Paragraph (4) provides that he, the employee, "shall report for work at the beginning of...