(dissenting).
The statutory right of an honorably discharged veteran who applies for reemployment is to be restored to his former position or to one “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). Plaintiff’s former position was that of an outside salesman who had to seek out customers at their places of business and overcome sales resistance in a highly competitive market; he testified that until he left in 1942 he had to work hard to get new accounts and to keep old accounts. His pay was 10% commission on orders he procured which the employer filled. When he returned in 1945 conditions had so changed that, as the court found, the outside solicitation of orders was unnecessary. No outside salesmen were employed, customers sought out the firm to place orders, and the shortage of labor and materials was such that $100,-000 of orders received in 1945 had to be cancelled.1 In such circumstance to employ plaintiff as an outside salesman to-solicit orders on a 10% commission would have created an unnecessary position and required the defendant firm to pay for services of no value to it. The statute does not require the employer to create a *352useless job in order to reemploy the returning veteran. See Kay v. General Cable Corporation, 3 Cir., 144 F.2d 653, 655; Gallant v. Segal, D.C.N.H., 74 F.Supp. 78, 79; Frank v. Tru-Vue, Inc., D.C.S.D.Ill., 65 F.Supp. 220, 223. In my opinion changed conditions had done away with the position of outside salesman and plaintiff was not entitled to be “restored” to such position. And the district court, as I understand its opinion, did not hold the contrary.
The theory upon which judgment was awarded to the plaintiff appears to be that he was entitled to a position with the defendants similar to that held by Meyer during 1946. This is demonstrated by the way plaintiff’s damages were measured, paragraph 10 of the opinion stating:
“10. The least amount of earnings which the plaintiff lost by the defendant’s failure to employ him as required by the Act would be the amount paid to Meyer for rendering the services which the plaintiff should have been permitted to render. The amount is three per cent of the gross business for 1946 which would be $13,465.-92.”
And again, in the “Conclusions of Law” the opinion says:
“Plaintiff has an accurate measure of his damages in the other salesman who seems just the theoretical person whose position the Act gives to plaintiff.”
These statements I do not understand to mean that by reason of seniority plaintiff should have been employed in place of Meyer, for at the conclusion of the trial defendants’ counsel, in arguing a motion to strike out all testimony relating to Meyer’s 1946 earnings, asserted that there was no problem of seniority in the case, and the court said “I agree with you.” Nor has the plaintiff contended, either at the trial or on appeal, that Meyer should have been discharged and plaintiff given his position because of seniority rights. The quoted statements mean only that Meyer’s position in 1946 was “a position of like seniority, status and pay” to that of the plaintiff in 1942. With this conclusion I am unable to agree.
There being no claim of seniority rights, the question is whether Meyer’s position was one of like “status and pay.” Obviously the basis of pay was different, being based on a percentage of gross sales instead of a commission on orders obtained by the employee’s own efforts. However, this difference is not necessarily fatal to his claim, since a returning veteran is entitled to share in the benefit of increased emoluments paid to employees whose work is of the same character as he formerly performed. But the character of Meyer’s work in 1946 seems to me essentially different from plaintiff’s duties in 1942. First, the place of work was different; it was all within the plant, while 90% of plaintiff’s activities had been outside among prospective customers. Second, Meyer’s inside work differed in several respects from any inside work in the shipping department which plaintiff had performed in 1942. As plaintiff himself testified from observation during his three weeks of employment in January 1946, Meyer not only made sales to customers in the office, but answered telephone inquiries as to “how far their orders are being filled and when they would be shipped,” and “helped making out work slips and trying to help out manage the factory” (fols. 106, 107). Meyer and Kivo testified that Meyer was in charge as manager during Kivo’s absence. The district judge apparently discredited their testimony as to this, as the opinion states in paragraph 5 that “At all times Meyer was the salesman and the management of the office was done by John Kivo although some of the business details may have been attended to by Meyer during Kivo’s absence from the office.” However, I see nothing in this finding to contradict the above-quoted testimony of plaintiff. In reality the decision holds that although changed conditions of business made it possible for one inside salesman to handle all customers’ orders, and to attend to various “business details” in Kivo’s absence, such as making out work slips and helping to manage the factory, the defendants were bound to employ an additional and unnecessary inside salesman in order to give plaintiff a job, and to pay the plaintiff for performing an unnecessary sales function the, same compensation as the man who was alone able to handle all the neces*353sary inside work, which was more than three times plaintiff’s highest earnings before induction. Such a conclusion seems to me “unreasonable” and beyond what section 8(b) (B) requires. No authority has been cited which goes so far. Levine v. Berman, 7 Cir., 116 F.2d 386 is distinguishable, for there the employer was still sending salesmen into the district which had been the plaintiff’s exclusive territory before he went into military service. Allyn v. Abad, 3 Cir., 167 F.2d 901 is also distinguishable. There the veteran was restored to a position carrying a fixed salary of $45 per week; he was not, as in the case at bar, awarded a greatly increased compensation measured by that of an employee who had been selected to perform new duties in addition to the sales function.
For the above reasons I think judgment should go for the appellants, regardless of the other points argued by them, although I am in disagreement with my brothers on those points also.
Exhibit 8 shows gross sales for 1945 of $369,555.51.