December 31, 1945 and returned to his home in Pottsville, Pennsylvania. On January 2, 1946 plaintiff applied for re-enlistment at the recruiting station in Pottsville, was given permission to stay with his family over the week-end, and was given a railroad ticket to Philadelphia. Plaintiff was then sworn in on January 7, 1946 at Philadelphia and served in the armed forces until November 18, 1948, at which time he was honorably discharged.
From the plaintiff's testimony, it appears that the only reason he was physically separated from the Army was because of the inability of the Army to handle his re-enlistment expeditiously. Further, the fact that he applied for re-enlistment in his home town the first day he was able to do so is indicative of his intention to remain in the service.
This Court is of the opinion that plaintiff's service in the armed forces from March 30, 1942 until November 18, 1948 was, in effect, continuous. When plaintiff applied to defendant-employer on November 30, 1948 for re-employment, he had complied with the provisions of the act requiring application for re-employment within ninety days after being released from training and service.
2. Must a veteran accept a position from his former employer which is not of like seniority, status and pay in order to mitigate the damages?
Under Section 308(e) of the Selective Training and Service Act, supra, it is provided:
'(e) In case any private employer fails or refuses to comply with the provisions of subsection (b) or subsection (c), the district court of the United States for the district in which such private employer maintains a place of business shall have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, to specifically require such employer to comply with such provisions, and, as an incident thereto, to compensate such person for any loss of wages or benefits suffered by reason of such employer's unlawful action. * * *'
The defendant contends that since plaintiff was offered a job as a new man he had a duty to accept it in order to mitigate the damages. It argues the measure of damages is the difference between what plaintiff would have earned had he been restored to his former position and what he would have received had he accepted the job offered.
Plaintiff testified he refused this position because he believed that if he had accepted it, he would have waived his seniority rights. He had the right to so decide. In Loeb v. Kivo, 2 Cir., 1948, 169 F.2d 346, at page 350, the court said:
'* * * If on the one hand a veteran is required to mitigate damages and then on the other he loses his rights under the statute because of compliance with this duty, the benefits of the statute became merely illusory. * * *'
Further, in Feore v. North Shore Bus Co., Inc., D.C.E.D.N.Y.1946, 68 F.Supp. 1014, a veteran was offered a position in which he would have earned wages equal to that which he would have received had he been restored to his former position. The court held the veteran had no duty to mitigate damages in this manner. The case was reversed but on other grounds, 2 Cir., 1947, 161 F.2d 552.
It is clear that the intent of Congress in passing the Selective Training and Service Act of 1940, supra, was to restore to anyone who had left his employment to enter the military service the same status that he had prior to enlistment or induction. If defendant's contention is correct, the effect would be to require a veteran to accept a position which is less than the position to which he is entitled under the law. The plaintiff was justified in refusing such an offer. To decide otherwise would negate the purpose of the Act.
It is well settled that a court may grant damages because of the refusal of the employer to restore the veteran to his former position. Bochterle v. Albert Robbins, Inc., 3 Cir., 1947, 165 F.2d 942. Accordingly, the plaintiff is entitled to damages for the period of one year from November 30, 1948. Van Doren v. Van Doren Laundry Service, Inc., 3 Cir., 1947, 162 F.2d 1007.
This amount should be reduced by wages earned by the plaintiff during that year when he, in good faith, sought to obtain other employment. Since the record is not clear as to the exact amounts received and is resolved by a simple mathematical computation, the net sum shall be computed by the parties.
The foregoing findings of fact and conclusions of law embodied in this opinion may be taken as the Findings of Fact and Conclusions of Law of the Court.
An appropriate order may be submitted.