O'Brien v. Puget Sound Plywood, Inc. , 23 Wash. 2d 917 ( 1945 )

¹ Reported in 165 P.2d 86. Charles A. Morisette brought this action to recover damages for alleged breach of a contract of employment. Answering the complaint, defendant, by way of affirmative defense, alleged that plaintiff had been discharged for good and sufficient cause.

Upon the trial, plaintiff established without dispute that, under the provisions of the contract, he would have received $7,856.17 during the remainder of the term subsequent to his discharge, and that during such period he earned $533.57.

The jury returned a verdict in favor of the plaintiff for eighteen hundred dollars. Plaintiff interposed a motion for judgment notwithstanding the verdict in the sum of $7,322.60 — the difference between the amount that he earned subsequent to the breach of the contract and the amount he would have received had he not been discharged. The court denied the motion and entered judgment on the verdict. Plaintiff assigned the judgment to S.J. O'Brien, who appears as appellant in this court.

Appellant contends that, since the jury, in returning a verdict for Morisette, of necessity found that he had been wrongfully discharged, and, since there was no dispute in the evidence between the amount he would have earned under the terms of the contract and the amount he actually earned, he was entitled, as a matter of law, to recover the difference. This contention is based upon a principle stated as follows in City Bond Share v.Klement, 165 Wash. 408, 411, 5 P.2d 523:

"If a general verdict is returned, and the amount which should have been found is a matter of mere computation and over which there is no controversy, the court may amend. But the court cannot, under the guise of amending a verdict, invade the province of the jury or substitute his verdict for theirs."

Were the question of wrongful breach of the contract by defendant the only issue presented by the record, appellant's position would be invulnerable. But such is not the case.

The record as made presents an issue as to whether Morisette exercised reasonable diligence in an effort to obtain other employment in order to mitigate his damage.

Instructing the jury with respect to damages, the court, in separate instructions, stated:

Instruction No. 12. "If you determine there was a breach of said contract by defendant, then it was the duty of the plaintiff. . . to make a diligent effort to secure other like or similar employment to mitigate any damage he may have sustained by reason of the alleged breach."

Instruction No. 13. ". . . If you find from the evidence in this case that the contract of employment . . . was terminated by defendant without just cause, then your verdict . . . should be for the sum of $7,856.17, less whatever sum the plaintiff actually earned. . . . Should you find for the plaintiff, you are instructed that in no event can your verdict . . . exceed the sum of $7,322.60."

Instruction No. 16. "If you find for the plaintiff . . . you will insert [in the form of verdict] . . . the amount which under the evidence you will find him entitled to, . . ."

[1] No exceptions were taken to these instructions, so they became the law of the case. Reading them together, it is clear that the court intended to, and did, submit the issue of mitigation of damage to the jury. For, in substance, they say: If you find that defendant wrongfully breached the contract, you shall return a verdict in favor of the plaintiff for $7,856.17, less whatever sum he actually earned, provided you find that heexercised reasonable diligence in an effort "to secure other likeor similar employment to mitigate any damage he may havesustained by reason of the alleged breach." (Italics ours.)

[2] Appellant contends that the burden was upon respondent to show that Morisette could, by reasonable diligence, have obtained other employment and so mitigated his damage.

Conceding this to be the rule, it is not applicable to the issue as presented in this case, for Morisette tried his case upon the theory that the burden on the issue was upon him. From the instructions we have quoted, it is apparent that the court submitted the case to the jury on that theory. Appellant is not at liberty to adopt a different theory on the issue in this court from that presented at the trial. Sylvesterv. State, 46 Wash. 585, 91 P. 15; Paine v. Port of Seattle,70 Wash. 294, 126 P. 628, 127 P. 580. In the former case, it was said, p. 595:

"Lastly, the appellants object to the sufficiency of the answer filed on behalf of the state, contending that it contains an admission that the state holds the land in question subject to forfeiture in case it ceases to use it for a capitol site. We do not so read the answer, but if it required that construction it would not alter the appellants' position. The case was tried in the court below as if upon sufficient pleadings, and we must consider it upon the same theory in this court. To do otherwise would be to deny to the respondent the benefit of the statutes relating to amendments."

[3] Apparently recognizing this to be the case, appellant urges that respondent offered no evidence on the issue. Even so, it does not follow that the issue was not one for the jury. For a party may, by his own testimony, establish an element of his adversary's case — as in personal injury cases where the defense of contributory negligence is frequently, if not usually, established by the plaintiff's testimony standing alone.

So, here, we think, Morisette, by his own testimony, presented the issue of mitigation of damage and made it a question for the jury. On direct examination, he testified:

"Q. After you ceased to work for the defendant corporation, I wish you would state with some particularity what efforts you made to engage in some business after May 1st. A. After May 1st, first I felt then I probably would take a little rest. I think it was a few weeks I worked around the garden at home, studying out just exactly what I wanted to do because my former employer had sold the mill and it was in the form of reorganization at that time. Of course, I was working for myself and I thought the best thing would be to start off for myself so I made a number of trips to Oregon to line up the situation, knowing that the logs were more available in Oregon than they were in Washington. I did quite a little preliminary work for myself trying to line up what possibilities there would be for me to get started in Oregon where the bulk of the timber was. I made numerous trips there sizing up the setup and talking to lumber brokers and lumber products men and trying to make myself out a line on what I wanted to do. Each time I returned home, my home is here, of course, and I went to Seattle to visit a very personal friend of mine I used to do business with, considerable, and he said, ``Charley, I would very much like to have you help me here a month or so, I am in quite a jam and you could help me out.' I told him I would do that if I could go whenever I wanted to because I had to make trips to Oregon and conditions were such that I wanted to start business there myself. That if I could be relieved quickly it would be all right, so I helped him six weeks or a month.

"Q. How much did you receive from him? A. I received $242.00 for the time I worked for him. Q. That was on a daily basis? A. Yes, sir. Q. How much a day did you get? A. About $9.00 a day. Q. State whether or not you also had any tentative negotiations with him regarding the possibility of going into business with him? A. Yes, while I was there he said, ``Charley —,' he had arranged prior to see me to arrange to possibly go in the jobbers' trade and contacted me to see if I would be interested in going into the jobbing business with him. Of course, I had the Oregon deal on and I was kind of on the fence; I wanted to go into business with him, which he agreed to, and he said it would take a little time to get started and if I wanted to be there with him it would be all right until we got going. I was trying to line up whether to go in with him or go to Oregon.

"Q. Did anything eventuate from that discussion? A. It slightly fell through. One reason why, materials were a little harder to get and I explained to him that possibly it was not the right time, we did not time ourselves correctly, but he wanted me very badly. Q. About when did the negotiations fall through? A. The latter part of August, around there, I think. Q. In 1942? A. Yes, sir. Q. After that what did you do regarding any other business or employment? A. Well, I felt my Oregon setup was the next best thing so I made arrangements to go down to Oregon again and still line it up to see what could be done to line up the business. Every time I went it looked more promising. I was staying at the hotel for quite a while so I got me a room and stayed there. Q. What part of Oregon? A. Eugene and Cottage Grove, Oregon. Q. Did you set up an office there? A. Yes, at that time at Cottage Grove, Oregon. Q. About when? A. It was the latter part of September, something around there. Q. 1942? A. 1943.

"Q. Yes; why did you leave this area and go to Oregon? A. Well, Cottage Grove is a very small city and living facilities are very hard to get. Q. Why did you leave this area and go to Oregon? A. Because of the logging situation, I thought it was much easier and you could get lumber more readily. It was more available I thought because really the larger manufacturers are going into Oregon after logs today. I felt eventually, after the war, some of these firms would not get materials. That is the reason I went to Oregon.

"Q. How long did you operate this brokerage business in Cottage Grove? A. Oh, I just moved from Cottage Grove; it is three weeks that I moved ago. Q. Was your business very successful from the standpoint of producing revenue? A. I was very much enthused. Q. But, was your business very successful from the standpoint of producing revenue? A. Truthfully, no, because I put in so much expense at missionary work and lumber was hard to get so I had to contact these mills to see what lumber would be available for me to get. Q. What were your gross receipts, without making any allowance for expenses, from the first of May, 1942, to the first of June — or rather, of 1943? A. From the first of May, 1943, to the first of June, 1944? Q. Yes, including the $242.00 that you received from the man in Seattle? A. $533.57. Q. That is your total earnings? A. Yes, sir.

"Q. You were not very successful in getting in very much money there; what facts do you attribute that to? A. Well, it took me three months of that to start, from the latter part of September, October, November, and December, and part of January, going to the mills, and lumber is very critical, and being a stranger down there it was hard to receive materials. I started receiving materials along about the latter part of January and February. Of course, it took some time to ship them. Of course, when I did I received the business and shipped in January, February, March and April.

"Q. Now, you have recently closed your office in Cottage Grove and moved to Eugene; when did you do that? A. Three weeks ago. Q. Why did you do that? A. Well, the housing facilities were very bad and Eugene is more or less of a broker's outlet and I started to make a broker's business, a broker's business for Southern Oregon. Q. Have you got an office in Eugene? A. Well, I maintain it at home. Q. You had an office at Cottage Grove? A. Yes, sir."

Charles I. Reberger, a former president of the respondent, and its witness, testified that Morisette had stated in his presence at a committee meeting that he

". . . had three jobs . . . offered him that would pay him three times as much money as he was making there . . . but he was not going to take any of those as he was going to prove that he had a contract."

[4] Upon this testimony the jury were fully warranted, under the instructions of the court, in finding that Morisette failed to exercise reasonable diligence to find "other like or similar employment to mitigate any damage he may have sustained." That they did so find is manifest from the amount of their verdict. That they might, or should, have denied him any recovery is beside the issue, since the respondent did not challenge the verdict.

[5] Respondent served, and filed, a brief characterized as "Respondent's Additional Authorities," against which appellant has directed a motion to strike. The motion is granted, for the so-called additional authorities is, in essence, an argument in answer to appellant's reply brief.

Judgment affirmed.

BEALS, C.J., STEINERT, ROBINSON, and MALLERY, JJ., concur.