Charles A. Morisette, who had a written contract of employment for a definite term with defendant corporation, was discharged by his employer prior to expiration of the term of employment. Morisette instituted an action against defendant to recover damages alleged to have been sustained in the amount of $7,322.60, from the date of discharge to a fixed date prior to the date of trial. The defense to the action was that the employee was discharged for cause. Trial of the cause to the court sitting with a jury resulted in verdict for eighteen hundred dollars in favor of plaintiff. Plaintiff's motion that judgment notwithstanding the verdict be entered in his favor in the sum of $7,322.60 was denied and judgment was entered on the verdict.
On his motion therefor, S.J. O'Brien, to whom plaintiff had assigned the judgment, was substituted as party plaintiff in the action in the place of Charles A. Morisette. The assignee has appealed from the judgment for the purpose *Page 924 of obtaining an order directing the trial court to vacate the judgment for eighteen hundred dollars and substitute in lieu thereof a judgment in favor of the assignee in the sum of $7,322.60.
Counsel for appellant contends that as there was no evidence contrary to the evidence adduced by appellant's assignor of the damages sustained, and that, as the determination of the amount of damages was merely a matter of mathematical computation, the trial court should on motion of appellant have made such computation and entered judgment of $7,322.60. It is argued that the only conflict in the evidence was whether Morisette was discharged for cause and that the verdict of the jury foreclosed that question in favor of Morisette; that is, the jury found that the discharge of Morisette from his employment was unlawful.
The uncontradicted evidence is that, if the employment had not been terminated, Morisette would have received from his employer $7,856.17; and that, during the period he was unemployed, he was able to earn only $533.57. The difference between what he could have earned and what he did earn was $7,322.60. The defense to the action was that the employee was discharged for cause, but respondent did not offer any evidence to show that after his discharge the employee could have earned more than he did during the period in question or that he did not exercise diligence in seeking other employment.
If the jury found that the discharge of Morisette was unlawful, the measure of damages is the amount of his salary under the contract reduced by whatever sums the discharged employee had, or with the exercise of reasonable diligence could have, earned from the time of his discharge to the date of expiration of his contract. Hansen v. Columbia Breweries, 12 Wash. 2d 554,122 P.2d 489.
The burden is upon the defendant in actions of the character of the one at bar to prove that the plaintiff might have earned additional compensation during the period between the date of discharge and the expiration of the contract of employment. 35 Am. Jur. 493, § 60. See, also, list of authorities in 134 A.L.R. 257 to 269, inclusive. *Page 925
The question whether the contract was unlawfully terminated by respondent is foreclosed in favor of appellant by the verdict of the jury. There was no issue of fact as to the amount of damages sustained. The evidence is undisputed that the amount of wages lost under the contract, less the earnings of the discharged employee, is $7,322.60. The evidence that Morisette sought other employment after his discharge by respondent was not controverted.
Simmons v. Anderson, 177 Wash. 591, 32 P.2d 1005, (cited by the trial court and respondent) in which we held that even if evidence be uncontradicted and not directly impeached, a jury may disregard it where there are facts and circumstances admitted or proved which tend to establish the untruth of such evidence, is not in point as there is an entire absence of facts or circumstances admitted or proved which tended to establish lack of diligence upon the part of Morisette in seeking other employment. The only evidence was that Morisette, like Hansen inHansen v. Columbia Breweries, supra, was unsuccessful in his quest for employment. It will be remembered that, in the case cited, judgment in favor of Hansen was affirmed by this court.
It was the position of appellant, in Hansen v. ColumbiaBreweries, supra, that the discharged employee could not recover because he made no attempt to mitigate his damages by securing other employment. The evidence was that Hansen unsuccessfully made every effort to obtain employment. The trial court in the case at bar incorrectly concluded that the jury had the rightwithout any evidence to speculate concerning the degree of diligence which Morisette should have exercised in order to mitigate damages. The record is such that the court would not have committed error in instructing the jury that the only question for the jury to determine was the question of wrongful discharge. Under the rule enunciated in Richey Gilbert Co. v.Northwestern Natural Gas Corp., 16 Wash. 2d 631,134 P.2d 444, the fact that no request was made for such an instruction does not alter the situation where, as we held in the case cited, a general verdict is returned and the amount which should have been found is a matter of mere computation *Page 926 and over which there is no controversy, the court may amend the verdict. It would not have been an invasion of the province of the jury or the substitution of the court's verdict for that of the jury to have amended the verdict, as the amount which should have been found under the evidence is a matter of mere computation and over it there was no controversy.
The rule is well settled that the measure of damages in an action of the character of the one now before us is the contract price, salary or wages, reduced by whatever sums the discharged employee had, or with the exercise of reasonable diligence could have, earned from the time of his discharge to the period of the expiration of the contract. 35 Am. Jur. 482-484. See, also,Hansen v. Columbia Breweries, supra.
The burden is upon the defendant to show that the plaintiff might have earned additional compensation during the period between the date of discharge and the expiration of the contract of employment. If the plaintiff is discharged after the time the service commenced, he has an immediate cause of action for damages which are prima facie a sum equal to the stipulated amount unless the defendant gives evidence in mitigation of damages.
"A demand for damages is, as in any other action for breach of contract, a prerequisite to a valid declaration, complaint, or petition for breach of an employment contract, but it is not necessary to entitle the plaintiff to recover damages necessarily ensuing from nonperformance or breach, for him to detail these expressly in his complaint. And since prima facie the measure of recovery is the contract price, salary, or wages for the unexpired part of the term, the burden is upon the defendant to rebut this presumption by proof that the damages sustained were actually less. The plaintiff in suing for damages for breach of contract may, by way of anticipating any defense on the ground of failure to reduce or minimize damages, allege that he made reasonable efforts to avoid or lessen the injuries, but he is not required to do so. Accordingly, the plaintiff in an action for breach of a contract of employment has been held under no obligation to allege and prove inability to procure other employment. While there are some cases indicating *Page 927 it to be the duty of the plaintiff to make a prima facie showing in this respect, the general rule is that in an action for alleged wrongful discharge, he is not bound to show affirmatively as a part of his case that other employment was sought and could not be found, but may rest in his case upon proof of the contract of service, its breach, and damages which are determined by the contract price for services. If the employer desires to mitigate damages by showing that the employee had employment or could have obtained employment by reasonable diligence during the whole or any portion of the contract, the burden rests upon him to establish such fact." 35 Am. Jur. 493-494.
If Morisette was entitled to any damages the amount was $7,322.60. Respondent offered no evidence in mitigation of damages. On the record made in the case at bar, the ascertainment of this sum was merely one of mathematical calculation, and, as the jury found in his favor on the only litigated issue, the trial court not only had the power but it was its duty to make this mathematical calculation and enter judgment in the amount of $7,322.60.
Morisette established the fact that he was unlawfully discharged. He was under no obligation to mitigate damages by seeking employment substantially different from that covered by his contract, and he was not required to depart from the locality covered by his contract and seek employment in some other area.
We find no evidence in the record challenging the accuracy of appellant's recital of the evidence.
"Prima facie, the plaintiff is damaged to the extent of the amount stipulated to be paid. The burden of proof is on the defendant to show either that the plaintiff has found employment elsewhere, or that other similar employment has been offered and declined, or, at least, that such employment might have been found. I do not think that the plaintiff is bound to show affirmatively, as a part of her case, that such employment was sought for and could not be found. (2 Greenl. on Ev., § 261, a;Costigan v. M. and H.R.R. Co., 2 Den., 609.)
"No such evidence having been offered by the defendant, the plaintiff should recover the whole amount of her stipulated compensation as the damages attributable to the defendant's breach of contract. This, as has been seen, is the *Page 928 true measure of damages." Howard v. Daly, 61 N.Y. 362, 371, 19 Am. Rep. 285.
The argument of respondent that the burden was shifted by reason of the fact that the complaint alleged diligence is without merit. There is no evidence that Morisette found similar employment elsewhere, that similar employment was offered to him and declined or that such employment might have been found.
The jurisdiction of the court to entertain a motion of the character of the one made by appellant is unquestioned. We so held in Richey Gilbert Co. v. Northwestern Natural Gas Corp.,16 Wash. 2d 631, 134 P.2d 444, which follows a series of opinions of this court commencing with Casety v. Jamison,35 Wash. 478, 77 P. 800. That case was followed by Buffington v.Henton, 70 Wash. 44, 126 P. 58, which was approved in CityBond Share v. Klement, 165 Wash. 408, 5 P.2d 523. Other opinions of this court are to the same effect; that is, the rule is that where the amount of recovery is liquidated and there is no conflict in the evidence, the court may compute the damages notwithstanding the verdict of the jury.
I cannot agree that the verdict of the jury was a compromise verdict for the reason that the jury was misled by instructions which respondent now urges were inconsistent. Respondent argues that instruction No. 13, the pertinent part of which is quoted in the majority opinion, is inconsistent with instruction No. 12, which charged the jury that if it determined there was a breach of the contract by respondent, then it was the duty of appellant to make a diligent effort to obtain like or similar employment to mitigate any damages he might have sustained by reason of the alleged breach. It is insisted that the presumption is conclusive that the verdict was the result of this inconsistency. Instruction No. 13 was requested by appellant and instruction No. 12 was requested by respondent.
I can see no inconsistency in the two instructions. Instruction No. 13 plainly charged the jury that if it found for the appellant the verdict should be for the sum of $7,856.17, *Page 929 less whatever sum appellant actually earned during the period of time he was unemployed and that in no case could the verdict exceed $7,322.60. Instruction as to the maximum amount was merely given to obviate error in calculation which would produce more damages than warranted by the evidence, and there is nothing in the entire instruction which nullifies the specific portion of the instruction.
No exception was taken to respondent's requested instruction No. 12, hence respondent may not indirectly urge error in the giving of that instruction because if there was error it was invited. The instruction was simply a discussion of an abstract principle of law. The jury was not instructed that it should offset against damages, sums which Morisette might have earned or anything of that character. It is not a sound argument that, conceding arguendo, instruction No. 12 should not have been given, and that had appellant moved for a new trial, the motion should have been granted because of the giving of that instruction, the verdict, from which respondent has not appealed, is a compromise verdict.
"The scope of an instruction in a particular case, whether civil or criminal, is to be determined not alone by the pleadings therein, but also by the evidence in support of the issues; and even though an issue is raised by the pleadings, it is not proper to give an instruction thereon where there is no basis for it in the evidence. An instruction not based on the evidence is erroneous in that it introduces before the jury facts not presented thereby, and is well calculated to induce them to suppose that such state of facts in the opinion of the court is possible under the evidence and may be considered by them." 53 Am. Jur. 455-456.
Requested instructions based upon assumption and not upon evidence should be refused.
"It is error to give an instruction on a state of facts which there is no evidence tending to prove, or which the undisputed evidence in the case shows does not exist, even though such instruction contains a correct statement of the law." 144 A.L.R. 1403.
The scope of an instruction in a particular case is to be determined, not alone by the pleadings therein but also by the evidence in support of the issues between the parties, *Page 930 and, even if an issue is raised by the pleadings, it is improper to instruct thereon although it may be abstractly correct, where there is no basis for it in the evidence. The principle upon which this rule is founded is that only such an instruction should be given as is based upon the legitimate evidence in the case. The fact that it may be correct as a general principle of law is not material, for it is the duty of the court to confine itself to a statement of such principles of law as are applicable to the evidence received in support of the contentions of the parties, and thus to aid the jury in arriving at a correct determination of the issues involved. 14 R.C.L. 786-790.
The rule that in order for a party to take advantage of an error committed by the trial court in giving instructions or refusing requested instructions, he must make a proper objection and save his exception, is not applicable in the case at bar. It is true that an appellate court will not consider, in the absence of a proper exception, an instruction which is erroneous because there is no evidence to support it. It should be borne in mind, however, that where there is neither evidence or reasonable inference from the evidence to justify the verdict, which is the situation in the case at bar, motion for judgment notwithstanding the verdict should be granted.
The trial court is vested with the authority, and upon it is imposed the duty, of granting a motion for judgment notwithstanding the verdict when the evidence and all the inferences which the jury could justifiably draw therefrom would be insufficient to support a different finding. The correctness or the incorrectness of the instructions is of no moment. The only evidence in the case that Morisette sought to mitigate the damages was the testimony of Morisette which sustained his complaint. While he was under no legal obligation to do so, Morisette alleged he endeavored to find other employment and his testimony established the fact that during the period he was unemployed he earned $533.57. His evidence was not controverted and there was no issue of fact on which the court could properly instruct the jury as to the amount of damages sustained. *Page 931
The question whether Morisette was unlawfully discharged by respondent is foreclosed in his favor by the verdict of the jury.
In Simmons v. Anderson, supra, we held that even if evidence be uncontradicted and not directly impeached, a jury may disregard it where there are facts and circumstances admitted or proved which tend to establish the untruth of such evidence. In the case at bar, there is an entire absence of facts or circumstances which tend to prove Morisette's lack of diligence in seeking other employment.
The judgment should be reversed and the cause remanded with direction to the trial court to enter a judgment in favor of appellant in the amount for which he prays.
SIMPSON, JEFFERS, and GRADY, JJ., concur with MILLARD, J.
[En Banc. January 7, 1946.] Petition for modification of opinion denied.