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February 15, 1945


The opinion of the court was delivered by: FAKE

This proceeding is founded on the provisions of the Selective Training and Service Act of 1940, Title 50 U.S.C.A. Appendix, § 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 service 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. (Emphasis added).

 "Q. And what did he say to that? A. He said, 'Well, Grasso, before we could even discuss a leave of absence or your job back, you will have to go to the company doctor'.

 "Q. Well, at that point what did you say to that? A. I said 'I am willing to go to the company doctor.' * * * He sent me to Dr. Crecca. * * * That's the ...

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