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tiff had intended that the cancellation clause of the original agreement should have no application to the new agreement he could have insisted upon a clause to this effect. That he did not do so may have been the result of oversight, but presumably was more likely due to the fact that the effect of the recently enacted Army Reserve and Retired Personnel Service Law of 1940, for which he now, as we think, erroneously contends, had not occurred to him. There is no ambiguity in the words employed in the supplemental agreement. Nor is there any claim by plaintiff that it was not drawn precisely as both parties intended.

As for the argument that since the original agreement was made prior to the passage of the Army Reserve and Retired Personnel Service Law of 1940, the Act when later passed nullified the cancellation clause in the original agreement, because the two are inconsistent, and that therefore the supplemental agreement purported to do, and could in fact do, no more than reaffirm such force and effect as was attributable to that clause in the original agreement after the Act was passed, we believe such argument is completely overcome by the fact that it would be entirely contrary to sound statutory interpretation to construe the Act as intending, merely by implication, to nullify an express agreement which, as here, a person in the armed forces has made with his employer, freely and without any compulsion or misrepresentation, at the time he enters upon his military duties.

Provisions identical with those with which we are here concerned, are also in the Selective Training and Service Act of 1940, 50 U. S. C. A.; Appendix, Sec. 308; and the Civilian Reemployment of Members of the Merchant Marine Act, 50 U. S. C. A.; Appendix Sec. 1472. Also it is of significance that the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U. S. C. A.; Appendix, Sec. 510590, in dealing with the effect of that Act upon the rights, remedies, etc., of its beneficiaries, by virtue of written agreements entered into after commencement of military service, contains the following (50 U. S. C. A.; Appendix, Sec. 517):

Nothing contained in this Act shall prevent

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(a) the modification, termination, or cancellation of any contract, lease, or bailment or any obligation secured by mortgage, trust deed, lien, or other security in the nature of a mortgage, pursuant to a written agreement of the parties thereto (including the person in military service concerned, or the person (draftee) to whom section 106 is applicable, whether or not such person is a party to the obligation), or their assignees, executed during or after the period of military service of the person concerned or during the period specified in section 106.

(3) It will thus be seen that the Soldiers' and Sailors' Civil Relief Act of 1940 expressly removed from the operation of that Act, contractual relationships had with one in the armed forces, such as here involved. We recognize the fact that the basic purpose of the Soldiers' and Sailors' Civil Relief Act of 1940 was merely to suspend enforcement of certain civil liabilities of persons serving in the military and naval establishments and the Coast Guard; that the Army Reserve and Retired Personnel Service Law of 1940 does not contain a provision such as the one just quoted and that, by fixing the right to reemployment after completion of service, it deals with substantive rather than procedural rights. However, under the Army Reserve and Retired Personnel Service Law of 1940, 50 U. S. C. A., Appendix, Sec. 404, the benefits of the Soldiers' and Sailors' Civil Relief Act of 1918, 50 U. S. C. A., Appendix, Sec. 101165, were expressly extended to the beneficiaries under the first mentioned Act, effective until October 17, 1940, when the provision granting this extension was superseded by the Soldiers' and Sailors' Civil Relief Act of 1940. See 50 U. S. C. A., Appendix, Sec. 585. Thus it would appear to be an entirely reasonable conclusion from the evolution of these closely inter-related pieces of legislation, that although the Army Reserve and Retired Personnel Service Law of 1940 does not contain any express provision such as does the Soldiers' and Sailors' Civil Relief Act of 1940, with respect to the modification, termination, or cancel

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lation of any written contract, executed during or after the period of military service of the person concerned, nevertheless, since the lastnamed Act superseded from the date of its enactment, namely, October 17, 1940, its earlier counterpart, namely, the Soldiers' and Sailors' Civil Relief Act of 1918, and since the benefits of this 1918 Act were, as we have seen, expressly extended to the beneficiaries of the Army Reserve and Retired Personnel Service Law of 1940, it is reasonable to conclude that Congress, in passing this last-named Act, did not intend to make the status of beneficiaries thereunder, with respect to written agreements entered into by them during or after their period of military service, any different from what had impliedly been the status of corresponding beneficiaries under the Soldiers' and Sailors' Civil Relief Act of 1918, and had expressly been the status of corresponding beneficiaries under the Soldiers' and Sailors' Civil Relief Act of 1940.

It is to be noted that the Army Reserve and Retired Personnel Service Law of 1940 was enacted August 27, 1940, and the Soldiers' and Sailors' Civil Relief Act just a few weeks later, namely, on October 17, 1940. But the Section of the later Act, Sec. 107, 50 U. S. C. A., Appendix, Sec. 517, which, as we have seen, relates to the modification, termination or cancelations of written contracts executed during or after the period of military service of the person concerned, was added by amendment of October 6, 1942, and the Report of the House Committee on Military Affairs respecting the various amendments of October 6, 1942, contains the following significant statement (House Report No. 2198, 77th Congress, Second Session, 50 Appendix):

Section 107 clarifies the right of a person in military service to make certain arrangements with respect to his contracts and obligations, but requires that such arrangement must be in writing.

(4) The right of reemployment upon which the present plaintiff is insisting by virtue of the statute, is, it must be remembered, in derogation of the common law, and there.fore must be strictly construed, and

not extended by implication or by liberal interpretation. In short, the integrity of contracts, the basic principle that their mutuality, and that therefore the rights of both or all contracting parties, must be zealously guarded, are things not lightly to be cast aside under our Constitutional Form of Government, in time of War any more than in time of Peace.

Unquestionably, those in the armed forces of our country should be relieved, as fully as possible, from harassment and injury with respect to their civil affairs during their terms of service, thus enabling them to more completely and successfully devote all of their energies to the war needs of the Nation. Such is an essential part of their just reward for their service and sacrifice. Such is the commendable object underlying the Act upon which the present plaintiff relies. But neither this statute, nor any related wartime legislation, gives evidence of any intent to take away from the soldier or sailor his capacity to act, if he so desires, as a free agent, as he might have done before entering the service. Indeed it would be stultifying to him to do so. It would be tantamount to a declaration that once in the armed forces, our citizens become, in effect, incompetent to contract or to be held to any other normal non-military responsibilities, and what is worse, it would encourage dishonest practices which have no place in our law. It would say to the civilian, "You deal at your peril with all those in the Army Forces." For the foregoing reasons, the defendant's motion to dismiss the bill of complaint must be granted. It therefore becomes unnecessary to consider the question of the validity of the provisions of the Act here in review, as would be the case where the Court required to find that their effect is that for which the plaintiff has contended, or had the plaintiff not entered into the supplementary agreement of December 14, 1940. Likewise, it becomes unnecesary to consider any of the other questions raised by the motion to dismiss. We rest our decision squarely upon the finding that the Act neither expressly nor by implication gives support to plaintiff's position.

THE GRASSO CASE

UNITED STATES DISTRICT COURT, DISTRICT OF NEW JERSEY

JOSEPH GRASSO

v.

CHARLES M. CROWHURST, ET AL. Civil No. 3680

(58 F. Supp. 857)

(Filed February 15, 1945)

This proceeding is founded on the provisions of the Selective Training and Service Act of 1940, Title 50, App. U. S. C. A. Sec. 308. The petitioner is an honorably discharged soldier of the United States Army and seeks to return to the position of a tacker at respondents' tannery, which position he left on induction into the Army.

Two issues of fact are involved predicated on the evidence, and it may be well to explain more fully the factors which have resulted in the pertinent conclusions arrived at.

The first question to be answered bears on petitioner's fitness for his position and it is spelled out of the wording of the Statute, Supra, Sec. 308 (b) (2), as follows: Is petitioner "qualified to perform the duties of such position?" If he is, he is entitled to return to his position if he made seasonable application therefor. Obviously, this raises a question of fact and the burden of ascertaining the answer in the absence of a jury, falls upon the court.

It is urged that petitioner suffers with flat feet coupled with eversion or imbalance and this condition, aggravated by his service in the Army, disqualifies him. The evidence stands uncontradicted that petitioner has had flat feet from a very early age. He was not able to function efficiently on long hikes while in the Army and could not fulfill the strict Army requirements in that regard. There is little, if anything, in the evidence however to lead to the conclusion that his Army serv

ice caused his flat feet or that this condition was seriously aggravated or made permanently worse by his Army service. It is altogether reasonable to conclude from the evidence that the condition of his feet was substantially the same when he left his employment as when he was mustered out of the Army. There is no evidence whatever from which it might be found that he had been inconvenienced in his position at the plant by the condition of his feet before he was inducted into the Army.

In instances where flat feet are congenital no suffering or disqualification would necessarily ensue as is evidenced by the fact that many outstanding athletes have flat feet and suffer no detriments therefrom. If flat feet are after acquired, however, the chances are, more often than not, that they would cause pain and discomfort and to that extent constitute a disqualification. It is clear from the evidence here that this petitioner either has congenital flat feet or a condition so closely akin thereto as to present the same symptoms. The evidence is not seriously disputed that his flat feet date back to early infancy. He commenced to play football when he was fourteen years of age and he knew then that he had flat feet but continued to play until he was twenty, evidencing no discomfort from his feet. Moreover, he has played golf regularly from 1932 down to the present time. It does not seem plausible to me that one would voluntarily engage in such sports if he suffered any pain from exertions on his feet. Never, during all this time and down to the time of his induction in the year 1943, had he visited a doctor because of his feet nor had he ever worn arch supporters. During the course of the trial we went to respondents' plant and there witnessed an extended demonstration of petitioner's alertness on his feet

in the operation of tacking skins and for all that was disclosed, he held his own with the best of them, evidencing no lack of agility, inconvenience or pain whatever.

As to eversion or imbalance coupled with his flat feet; while it does appear that he has eversion, it does not appear that this defect is of sufficient moment to disqualify him for his position. Notwithstanding all the evidence to the contrary, I am convinced from the conduct of the petitioner over the years, his willingness to assume the job, and from what I saw of his activities, he is not disqualified for his position as a tacker in respondents' tannery.

It being shown that petitioner had suffered the specific defect of flat feet and eversion without inconvenience or suffering in his employment down to his induction, and later returned in the like condition, nothing else appearing, he should be restored to his employment and placed in status quo ante. Such would seem to be the spirit and intent of the Act. If, after his reinstatement the defect then appears to disqualify him the employer might exercise the same right to discharge him as might have been exercised before the induction.

The second question is: Did petitioner apply for reemployment within the intent and meaning of the Act, supra, Sec. 308 (b) (3), by making application therefor within 40 days after he was relieved from military service?

In this connection it appears that petitioner was discharged from the Army on October 4, 1943. On the 29th of the same month, and well within time, he called on Mr. Charles M. Crowhurst, one of the respondents, and they had a conversation. The exact purport of which is of utmost importance. Petitioner testified as follows:

"I asked him-when I first went into the office, I wanted a leave of absence, and he said 'Before I could give you'- Q. Just what did you say to him, as well as you can remember? If you can, will you try to repeat the exact conversation? A. I walked into the office and I asked Mr. Crowhurst if I could have a leave of absence. (Italics added.) Q. And what did he say to that? A. He said, 'Well, Grasso, before we could even

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Mr. Crow

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"Q. Did you see Dr. Crecca? A. A few days later. Q. Did Dr. Crecca examine you? A. Yes, sir. * Q. What did he say? A. Dr. Crecca told me that my physical condition was very poor, that I wouldn't be able to work any more, and that-* * *. He told me my feet were very flat and that if I continued working, the veins, he mentioned some veins, will come out from my legs and cause me trouble. Dr. Crecca told me to go back to see Mr. Crowhurst. "Q. Did you go back to see Mr. Crowhurst? A. Yes, sir. * Possibly a few days; a few days later. ** * *. Q. And what was your conversation with him? A. I went into the office and I told him that if there is going to be that much trouble for a leave of absence, I don't want the leave of absence; I will take my job back; I want my job instead of the leave of absence. * Mr. Crowhurst said that I couldn't have my job back because of my disability, physical disability. * * * I told him that according to Selective Serv ice I was entitled to my job back, and Mr. Crowhurst said there isn't a law in the country that could force him to take me back."

Respondent Charles M. Crowhurst agrees in his testimony that the first application made to him by petitioner was for a leave of absence only, but denies that there was any such conversation as that testified to by the petitioner as taking place after petitioner had visited the doctor or on any other later date. In this connec tion, the following testimony of Mr. Crowhurst and of his secretary Mrs. Hammell (she was present on each occasion) is pertinent:

"Well,

(Charles M. Crowhurst.) Mr. Grasso came in and I asked him if he was home on furlough and he said no * * * that the army routine had broken down his feet to the point that he received a medical discharge. * I asked him

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what I could do for him and he said that due to this condition, that he was physically unable to resume his job as a tacker, or in fact any other job in our tannery, and he would like an indefinite leave of absence. Well, I told him that was out. that some time previous to this we had agreed with the union that leaves of absence for a definite period would be granted only on the recommendation of the company's physician after physical examination.1 I then went on to suggest to Mr. Grasso that he pay Dr. Crecca a visit, and he agreed to do so and left. * Q. Did

he at any time during the course of that conversation ask for reinstatement? A. No. Q. To his employment? A. He did not.

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"Q. Did you thereafter see Mr. Grasso? A. Yes, a few days later Mr. Grasso came back to the office

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and told me he had been over to Dr. Crecca's office, and on the basis of the examination and what had happened to him in the army, he would like a release so that he could obtain a job where he could be off his feet. I told him I did not think the release was necessary but if it was necessary I would be only too glad to give him one. * Q. And did he on that occasion ask for reemployment? A. He did not."

(Edith A. Hammell.) "Mr. Grasso

1 Excerpts from letter of Union Agent Nusser, dated October 27th, 1942, read as follows:

I am writing to you in regard to the seniority list that you furnished us with. I think that some of the misunderstanding in regard to this list is due to the fact that at various times men have either quit their jobs, or obtained leaves of absence, and then later on came back to work.

I have a suggestion that I think would help us to avoid misunderstandings in the future. After this, when any leaves of absence are granted, they should be given for a definite time limit, and if the man does not return in that time, he is regarded as quitting the job and loses his seniority. I suggest that either leaves of absence, when asked for, be granted to everyone on this basis, or that we agree no leave of absence should be given at all. This will help to avoid any misunderstanding in the future if all the men know when they leave Crowhurst for another job they are quitting the job and That lose the seniority that they have.

is, if and when they return to the shop. they will be at the bottom of the seniority list. Please let me know whether you agree with these suggestions, or what your ideas are on this subject.

came in the office and, after saying hello to Mr. Crowhurst, Mr. Crowhurst then asked him if he were on a furlough. Mr. Grasso said no, that he had been discharged from the army because his feet had broken while he was in the army. He then asked Mr. Crowhurst if he would give him a leave of absence. Mr. Crowhurst then asked him how long a leave of absence he thought he would need. Mr. Grasso said, 'Well, at the time, I am physically unable to do the work because of my feet. I can't do any position in which I would have to stand on my feet, and I would like to have a leave of absence in order to get my feet back into shape.' Mr. Crowhurst asked him how long a leave of absence he would want. Mr. Grasso said, 'An indefinite leave of absence.' Mr. Crowhurst then told him that he couldn't give him an indefinite leave of absence, and the only leave of absence he could give him was a definite leave of absence, due to a physical examination by our company doctor, which had been the agreement between the union and the company, for any definite leave of absence. Mr. Crowhurst then asked Mr. Grasso if he would go to Dr. Crecca for an examination, and Mr. Grasso said yes.

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"Q. And did you thereafter see Mr. Grasso at the plant? A. A few days later Mr. Grasso came into the office

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* * and said, 'Well, that's that. I would like to have a release. I can't do any work where I would have to stand on my feet. I would like to have a release so that I can get a position sitting down, where I will be off my feet.' Mr. Crowhurst then said he didn't think that was necessary but if he wanted it he could have it. With that, Mr. Grasso left the office. Q. And did Mr. Grasso in either the first or the second conversation at any time request immediate reinstatement to his former employment? A. No. He didn't."

Does the request for a leave of absence standing alone include a request for a return to a position? Obviously, to ask for a leave would imply that the one making such a request was presently employed in a position from which the leave is sought. My view of it is that such a request amounts to nothing more than asking the employer to simul

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