Smith v. Missouri Pacific Transportation Company

• Decision Date: 07 February 1963
• Docket Number: No. 17031.,17031.
• Citation: 313 F.2d 676
• Parties: Harry W. SMITH, Appellant, v. MISSOURI PACIFIC TRANSPORTATION COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

313 F.2d 676 (1963)

Harry W. SMITH, Appellant, v. MISSOURI PACIFIC TRANSPORTATION COMPANY, Appellee.

No. 17031.

United States Court of Appeals Eighth Circuit.

February 7, 1963.

Carrold E. Ray, Marianna, Ark., for appellant.

Herschel H. Friday, Jr., Little Rock, Ark., for appellee; Pat Mehaffy, Little Rock, Ark., with him on the brief.

Before SANBORN and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

BLACKMUN, Circuit Judge.

By this action Harry W. Smith, a retired army colonel born 8 December 1892, seeks reinstatement in his civilian employment with the defendant and damages for salary loss. He bases his claim, in the alternative, on § 9(g) (1) and (2) of the Universal Military Training and Service Act, adopted in 1948, 62 Stat. 604, 614, 50 U.S.C.App. § 459(g) (1) and (2),¹ and on § 8 of the earlier Selective Training and Service Act of 1940,² 54 Stat. 885, 890. The case was tried to the court and resulted in a judgment for the defendant. D.C., 208 F. Supp. 767.

When Smith entered service in 1942 he was in the defendant motor carrier's employ, in a position other than temporary, as its district supervisor at Little Rock, Arkansas. That employment was the usual one terminable at will. The enterprise in which the defendant was then engaged had originated with the plaintiff and his father and had been purchased from them. Upon the plaintiff's emergence from service in 1953 he received the usual certificate of satisfactory completion and promptly applied to the defendant for his old position or one equivalent to it. After investigation this was denied.

A chronological statement will perhaps be helpful:

1. Before World War II. The plaintiff entered military service in June 1916 and remained on active duty until March 1917. Thereafter he continuously maintained a connection with the Arkansas National Guard until December 1940. He attained the rank of Lieutenant Colonel. With war approaching, guard activities increased. This interfered with the plaintiff's work for the defendant and he resigned his guard commission.

2. July 1942. Plaintiff left the employ of the defendant and entered upon active duty with the temporary rank of Captain in the Army of the United States.

3. 8 July 1947. Plaintiff received an appointment as Lieutenant Colonel. This came as a result of his making application under War Department Circular No. 97, 1947. In the application he stated that his category was "1", indicating a one-year term of duty.

4. 3 February 1948. Department of the Army Circular No. 27 was issued. The Circular offered new category commitments for extended terms of service of 1, 2 or 3 years to officers who met stated age-in-grade requirements. The plaintiff at that time held the rank of Major and, being then 55 years old, did not meet the age-in-grade specification. Had he been eligible, a three-year commitment under the Circular would, by its terms and because plaintiff's birthday was in December, have expired 31 December 1951.

5. 23 June 1948. The age requirements of Circular 27 were rescinded by Army Message. This said, "The DA intends to retain on AD all officers under age 60 who desire to remain on AD, are qualified to sign a new category statement and whose retention is approved * * *". It thus authorized the retention on active duty of qualified officers whose requested category could be completed before attaining age 60. With exceptions not applicable here an officer then under age 57, as was the plaintiff, could apply only for Category III, a term expiring 30 June 1951.

6. 7 July 1948. The plaintiff submitted to his commanding general a formal communication in which he stated, "I hereby volunteer for Category III (3 years) for continued extended active duty". The letter recited that it was submitted in accordance with Circular 27, as amended.

7. 9 July 1948. This commitment by the plaintiff was approved. Because of an unexplained administrative error within the Department of the Army, the official records as to the expiration date for plaintiff's commitment show 31 December 1951 rather than 30 June 1951. The Department has indicated that the plaintiff should not be held responsible for this change in the records "since there is no evidence in this office that he voluntarily requested retention until that date".

8. 11 August 1950. The Department of the Army issued General Orders No. 27 applicable to non-regular officers serving on extended active duty expiring before 8 July 1951. It continued the tour of duty for 21 months from the date it would otherwise have expired.

9. 9 May 1951. The plaintiff, in a letter directed to his commanding general, stated that "the undersigned desires to serve on extended active duty in Category V, to be effective 1 January 1952, and expiring indefinitely. My present category expires 31 December 1951".

10. 7 July 1951. The Department of the Army issued General Orders No. 48. This amended General Orders No. 27, 1950, referred to above, to replace the 21-month extension with one for 12 months. It also extended for 12 months the tour of duty of any officer which was to expire after 8 July 1951 and before 30 June 1952.

11. 19 November 1951. The plaintiff submitted to his commanding general a statement reciting, "the undersigned desires to serve on extended active duty in Category I, to be effective 1 December 1951 and expiring 31 December 1952". This was approved. The Department later indicated that, had the plaintiff not filed this request for a voluntary category, he would have been retained on involuntary duty anyway until 31 December 1952.

12. 8 December 1952. The plaintiff attained age 60.

13. 23 December 1952. The plaintiff was ordered hospitalized for surgery.

14. 31 March 1953. The plaintiff was released from service.

Colonel Smith testified that his military duties at all times were in Ordnance; that he saw service in the Middle East, in Korea, in Washington, D. C., and elsewhere; that from 1948 until his release he corresponded with the defendant; that their relationship was always cordial; that they would ask when he would return; that he talked with representatives of the defendant in April 1953; that they then gave him a railroad pass to visit his daughter and grandchildren in Texas; that in May he was asked to bring his military records to St. Louis for their examination; that in July he was told that if he did return he would have to bump the then district supervisor; that he told them they could find something else for him to do; that he also told them he would go any place they chose to send him; that he was aware of his reemployment rights and of the 4-year voluntary service limitation; that he actively sought to get out of service; that it was difficult to find his replacement in service; that everyone had "these requests for various categories" handed to him; that "the categories that were given to us to sign were routine"; that "I was given a blank to fill out and sign because we had to have another category"; that "there was only one that I understood thoroughly about"; that he did not deny that he read the forms; that he has drawn retirement military pay since 1 April 1953; that, however, he has not drawn any railroad retirement compensation; that with proper cooperation he would be at home on his old job within a 30 day period; and that he was very reluctant to displace the present district supervisor.

It is apparent from all this (a) that plaintiff was in military service continuously from July 1942 through March 1953, a period of approximately 10 years plus 8 months; (b) that under the terms of Circular No. 27, prior to its amendment, plaintiff, because of his age, was not eligible to convert to a new category from the one he was holding; (c) that his tour of duty then would have terminated in due course in 1948; (d) that the June 1948 amendment to the Circular made it possible for the plaintiff to apply for an extended term expiring 30 June 1951; (e) that he did so apply and his application was approved; and (f) that the plaintiff in 1951 twice asked voluntarily for extended duty and was accepted.

Chief Judge Henley found as facts, p. 772 of 208 F.Supp., that the commitments the plaintiff executed "were voluntary and were made with full understanding of his legal rights"; that, "In the Court's estimation plaintiff enjoyed the military life and intended to remain on active duty as long as he might be able to do so"; and that his "plans to go back to work for the defendant were entirely contingent upon his not being able to remain in active military service".

The court then ruled (1) that § 459(g) (1) of the 1948 Act has no application to the plaintiff because he never "enlisted" in the armed forces; (2) that § 459 (g) (2) of the same Act has no application to the plaintiff because, as he was already in service when he executed his commitment of 7 July 1948 and was free to sign or reject that commitment at that time, he was not a person who, after June 24 of that year, "enters upon active duty * * * in response to an order or call to active duty,"; and (3) that by his long stay in the Army plaintiff waived any reemployment rights he may have had under either the 1940 Act or under any other provision of the 1948 Act.

The court also concluded that an alternative contention advanced by the defendant, namely, that plaintiff's long absence, the interim changes in the transportation industry, and the unavailability of a comparable position made it unreasonable and impractical to require defendant to reinstate him, was not persuasive and constituted no defense. In addition, the court intimated that, although he did not need to rule finally on the question, it was probable that plaintiff's 1948 commitment terminated only on 31 December 1951 rather than on 30 June 1951; that this plaintiff would have been held in service anyway by the General Orders above described until 31 December 1952; and that the 3 months in 1953 were an...