(dissenting).
As is stated in the majority opinion, there is no substantial dispute as to the facts adduced at the trial of this case. Petitioner, the medical director of a corporation, obtained leave of absence to serve with the armed forces; upon his return, he was denied restoration to his former position. The statutory provision governing decision reads as follows : “if such position was in the employ *1004OÍ a private employer, such employer shall' restore such person to such position or to a' position of. like seniority, status, and pay unless the employer’s circumstances • have, so changed as to make it impossible or unreasonable to do so.” 50 U.S.C.A.Appendix,- § 308 (b) (B). The facts have raised two issues: (1) Was petitioner “in the employ” ®f respondent? And (2) have respondent’s circumstances so changed as to make the restoration of petitioner “unreasonable”? Both the lower court and the majority of this court, without deciding the first issue, have answered the second issue in the affirmative. With this conclusion I am constrained to disagree.
It is unnecessary to deal at length with the question left undecided. As is pointed out in Kay v. General Cable Corp., 3 Cir., 1944, 144 F.2d 653, the phrase “in the employ” covers almost every kind of relationship in which one person renders regular and continuing service to another. In the instant case, petitioner was paid a fixed monthly salary for eight years. He reported daily for duty as head of one of respondent’s departments. The services he performed benefited respondent. Respondent had the right to discharge him at any time. ■ He .participated in an employees’ group insurance plan, the premiums -for which were deducted by respondent from his salary. Before entering the service, he applied for, and obtained, leave of absence from respondent. Viewing the circumstances as a whole, I believe that this case in principle is .sufficiently like Kay v. General Cable Corp., supra, to warrant the same conclusion, -that petitioner is eligible for the protection of the Act.
In determining the second issue, I believe it would be useful to understand the exact nature of petitioner’s contention. Between 1934 -and 1942, petitioner performed two distinct and separate functions for respondent: (1) Medical director,-and (2) medical practitioner. The medical director function, to which alone he seeks restoration, was described as “purely executive work.” It involved -the establishing and supervising of the “medical setup” of respondent. Among the duties he performed were the review of (1) compensation claims and public liability cases, (2) pre-employment examinations, and (3) reports of inter-current (i.e., ríon-compensable) illnesses. The 27th Finding of Fact of the lower court reads as i ollows: “Review of the records which was formerly made by plaintiff is now done by defendant's Safety Department and if any question arises it is referred to the examining physician.” The 28th Finding of Fact states: “Review of non-compensable cases formerly made by plaintiff is now handled by defendant’s Welfare Department.” These findings of fact support the conclusion that persons in the employ of resp>ond-ent are still .performing a large part of the duties formerly assigned to petitioner. Therefore, is restoration of petitioner “unreasonable” ? In substance, what petitioner contends is that these duties, currently spread over a number of individuals, are required by the statute to be consolidated again into one position which would be very similar to that which petitioner had in 1942.
Is this an unjustifiable request? I think not. To hold otherwise is tantamount to asserting that, whenever an employer has split a job among other employees, as was common during the acute manpower shortage, the statutory provision requiring restoration of the returning serviceman would not be applicable. ..Effectually, the statutory •provision would thereby be diluted to a status of wishful thinking.'
In defense against the instant petition, respondent has stressed that, between 1934 and 1942, the insurance carrier had reimbursed respondent for the salary paid petitioner; and that the contract with the present insurance carrier in 1944, besides eliminating the reimbursement provision, resulted in a shift, to the carrier, .of some of the duties which petitioner’s department had performed.
Had the employment of petitioner been contingent upon reimbursement by the insurance carrier, the question of who furnished the money to pay petitioner might have some validity; but that is not the case at bar. Petitioner had only one agreement, and that was with respondent. Respondent, not the insurance carrier, paid petitioner each month. Petitioner testified without contradiction that he did not know of the reimbursement arrangement. In 1942, surely respondent could not have avoided pay*1005ment of petitioner’s salary on the ground that the insurance carrier was bankrupt or had refused reimbursement.
The record is not clear as to the status of the medical director position between petitioner’s departure for the colors and the consummation of the present insurance contract. Had 'respondent introduced evidence that a replacement for petitioner had been secured between 1942 and 1944, and that that replacement had been discharged as a result of the present insurance contract, there would be tangible evidence of a substantial change of circumstances. Instead, however, respondent’s sole witness testified only that an investigator in petitioner’s department “went back to the carrier from whom we employed him; he was no longer employed by the company.” This is a far cry from proving that the contract would have meant the discharge of petitioner, had he been performing his duties at that time, particularly since respondent’s own employees still perform a large part of those duties.
The majority opinion states that petitioner’s position “may in a sense be called temporary in that it existed only so long as the insurance carrier permitted the particular arrangement by delegating its duties to the appellee.” I cannot agree that the duty of supervising the health of respondent’s employees is primarily that of the insurance carrier. Respondent is financially liable for compensable injuries suffered by its employees; and efficiency.of operation demands that the respondent guard the general health of its employees for both compensable and non-compensable injuries and ailments. That respondent has contracted with an insurance carrier to perform part or all of this function does not shift the responsibility.
In a previous decision of this court, the following statement was made: “Every consideration of fairness and justice makes it imperative that the Statute should be construed as liberally as possible so that military service should entail no greater setback in the private pursuit or career of the returning soldier than is unavoidable.” Kay v. General Cable Corp., 144 F.2d at page 654. To the same effect, see Fishgold v. Sullivan Drydock & Repair Corp., 1946, 328 U.S. 275, 285, 66 S.Ct. 1105, 90 L.Ed. 1230, and Trailmobile Co. v. Whirls, 67 S.Ct. 982, at page 991; and see Trust Funds, Inc., v. Dacey, 1 Cir., 160 F.2d 413. The decision of the majority in the case at bar seems to me a substantial and serious inroad upon that precept, the soundness of which I deem unimpeachable.
For the reasons stated, I believe that the judgment of the lower court should be reversed and the case remanded for appropriate action.