Before O'CONNELL and KALODNER, Circuit Judges, and FOLLMER, District Judge.
The appellant, a physician, filed a petition in the District Court under the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., seeking reinstatement and claiming compensation for loss of wages alleged by him to have been suffered by reason of the appellee's refusal since January 1, 1946, to reemploy him as "Medical Director."
The appellant had been a practicing physician in New Jersey since 1924 and on or about June 8, 1934, was employed by the appellee as Chief Company Physician "in a capacity similar to that of * * * general counsel." The circumstances surrounding such employment were that at about this time the appellee, which employed approximately eighteen hundred persons, changed its insurance carrier and under an arrangement with the new carrier, the appellee undertook to operate and control investigation and defense of claims and medical supervision of employees' functions which had theretofore been controlled and handled directly by the carrier.That it was considered primarily the responsibility of the carrier is however evidenced by the fact that the carrier reimbursed the appellee for the monthly allowance to the appellant and for the fees and expenses of other physicians, counsel and investigators in connection with the claims against the appellee and any subsequent litigation.
Under the original arrangements no salary had been agreed upon but after the first two months, during which monthly bills were submitted by appellant, it was agreed that he should be compensated at the rate of two hundred fifty ( $250) dollars monthly, for what is referred to as his executive work, and should be allowed, in addition thereto, fees for medical examinations, treatments, and unusual conferences. When this new arrangement was entered into with the insurance carrier in 1934, and when the appellant assumed his duties, he occupied a desk in an office shared with appellee's Safety Director, Claims Investigator, and Welfare Director. He revised medical forms used by the appellee, was responsible for the designation of physicians for pre-employment examinations and treatments in various localities, and he sometimes made these examinations himself on applications for employment from persons residing in the vicinity of Asbury Park, New Jersey. For such services he received fees in addition to his monthly salary, on vouchers submitted therefor, the same as any of the other physicians designated by the appellee in the various localities. This arrangement continued until October 6, 1942, when the appellant entered the United States Army as a Major.
At the company office the appellant performed only executive duties in the nature of reviewing his files on compensation cases, non-compensation cases, and pre-employment medical records. During this period appellant was maintaining three other offices, two for other business concerns by whom he was employed as medical examiner, and one office for his general practice At the same time he was an attending surgeon on the staff of two hospitals, and was also retained as a medical examiner by another concern, although not having a separate office with that concern.
The amount received from the appellee was not a large portion of, but, on the contrary, a minor part of the income received by the appellant from these various sources as a physician. While the appellant made what might be termed a daily appearance at his office in the appellee's plant he decided when he would go there, he arranged his own vacation schedule, and time he spent at the appellee's office varied from fifteen minutes to about an hour and a half.
The appellant's service in the Army, with the rank of Lt. Colonel, terminated November 28, 1945, with his terminal leave expiring February 2, 1946. Upon his return from such service he duly made his application for re-employment. In the intervening period, however, there had been a shift in the presidency of the appellee and in 1944 the ownership of the appellee changed. Its common stock came under the control of the Associated Gas and Electric Company, now General Public Utilities Company, and the immediate holding company became NY PA NJ Utilities Company.
Among the changes occurring at that time and incident to the shift in ownership as above indicated, there was a change of insurance carriers, the new carrier being the one used generally by the new system of ownership. The new carrier did not follow the method used by the previous carrier but employed counsel, medical examiners, and investigators of its own choosing. Consequently, the department which the appellant had formerly supervised ceased to exist and its former personnel was no longer in the employ of the appellant. The appellee still requires pre-employment examinations but such examinations are made by the physicians in the various localities depending upon the residence of the applicant, the same as was done prior to appellant's entry into the armed forces, and fees for such services are paid as the need for such examination arises, the same as formerly.
As we have already pointed out, these services were not part of the executive duties for which the appellant received his monthly salary.
The appellee defended upon two grounds: (1) That the appellant did not hold a position in the employ of the appellee within the meaning of the Statute at the time he entered the Army, and (2) that appellee's circumstances had so changed as to make it impossible or unreasonable to reengage the services of the appellant.
The District Court, without deciding the first question, dismissed the petition on the second ground.
Appellant contends that the conditions which existed when he left the appellee's employ still prevail with the exception that the appellee had changed its policy and delegated to an insurance company a portion of the duties that the appellant previously discharged.
We have carefully reviewed the record in this case. The Court's findings of fact are fully supported by the evidence and there is no substantial dispute in relation thereto. The sole question is whether such facts sustain the Court's conclusion that appellee's circumstances had so ...