Concurring Opinion
Buchanan, P.J.I concur in the result reached by the majority, but solely on the basis that once it was proved that Ziedonis had incurred mitigating damages, the burden was on him (not the Defendant) to prove that he also had expenses which otherwise would not have been incurred..
It has long been the rule' in Indiana that óiie wrongfully discharged must attempt to seek alternate employment in order to mitigate damages. . . '
*298... it is the duty of a person when unlawfully discharged to make reasonable effort to obtain work elsewhere, and that in no event can he recover more than his actual loss would have been had he made such reasonable effort to obtain employment .... Inland Steel Co. v. Harris (1911), 49 Ind. App. 157, 163, 95 N.E. 271, 273.
When a discharged employee obtains alternate employment there is no question that the proper measure of his damages is the amount of compensation agreed upon for the remainder of the contract period involved, less the amount which he earns from other employment. Thus, the jury should have reduced Ziedonis’ award by Three Thousand Four Hundred and Thirty ($3,430.00) Dollars, the amount he earned in alternate employment.
The majority rightfully place the burden on the Defendant Symphony of showing that other employment was available to plaintiff or that the plaintiff did not use diligence in seeking other employment. This is the rule in Indiana. Hinchcliffe v. Koontz (1890), 121 Ind. 422, 426, 23 N.E. 271; Hamilton v. Love (1899), 152 Ind. 641, 643, 53 N.E. 181; The Pennsylvania Co. v. Dolan (1892), 6 Ind. App. 109, 124, 32 N.E. 802.
In this case it was unnecessary for the Symphony to carry this burden because Ziedonis testified that he had earned Three Thousand Four Hundred and Thirty ($3,430.00) Dollars in other employment during the remainder of the contract period. However, I am aware of no Indiana cases1 which would require the Symphony to show that this employment was profitable to Ziedonis, i.e. because Ziedonis had certain expenses of an unspecified amount during the time he earned the Three Thousand Four Hundred and Thirty ($3,430.00) Dollars the Symphony has failed to show that such employment was profitable.
The defendant is in no position to know plaintiff’s expenses and should not reasonably be saddled with the burden of *299proving them. As expenses are peculiarly within the cognizance of plaintiff, he should prove them. Cf. 22 A.L.R.3rd 1047, 1071; C. McCormick, Handbook on the Law of Damages, §§ 58-60 (1935).
Presumably, something more than love of music led Ziedonis to seek employment with out-of-town symphony orchestras. He certainly had income from this employment. If he had expenses which reduced his income, he should have proved them.
NOTE. — Reported at 359 N.E.2d 253.
. Milhollin v. Adams (1917), 66 Ind. App. 376, 115 N.E. 803, merely recognizes that allowance should be made for such expenses but does not place on the Defendant the burden of proof thereof.