Summary
holding that trial court erred in granting new trial because of perceived "compromise . . . on the part of the jury" where "exact mathematical computation" is not possible and jury "was required to use its best judgment"
Summary of this case from Wis. Patients Comp. v. Physicians Ins.Opinion
May 3, 1955 —
June 1, 1955.
APPEAL from an order of the circuit court for Washington county: W. C. O'CONNELL, Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by Samuel Goldenberg of Milwaukee.
For the respondent there was a brief by O'Meara O'Meara of West Bend, and oral argument by Stephen M. O'Meara.
This is an action brought by the plaintiff against the defendant to recover damages for the breach of a written employment contract entered into by the parties on the 27th day of July, 1950. By the terms of the contract the defendant employed the plaintiff for a period of three years commencing on the 28th day of August, 1950. The plaintiff was to devote his entire time to selling the defendant's products and services, particularly in its job-printing department. For his services the plaintiff was to be paid a commission of 10 per cent of all gross sales taken by him and accepted by the defendant. If plaintiff's commissions were less than $500 per month, then the defendant agreed to pay him $500 per month with a minimum of $6,000 per year. Plaintiff was to pay his own expenses, including automobile insurance upon his car.
Plaintiff testified that he was discharged without cause in December, 1950, and that he did not receive any payments from defendant after December 15, 1950. Thereafter, the plaintiff sought other employment and on February 15, 1951, he secured employment as a salesman at a salary of $350 per month. On May 7, 1951, plaintiff secured another position as salesman at a rate of $400 per month. From April, 1953, until the date of the expiration of the contract his commissions and salary exceeded the sum of $500 per month but the exact amount does not appear of record.
The summons and complaint were served on the defendant on January 19, 1951, and the original complaint was for salary for the period from December 15, 1950, to January 15, 1951, in the sum of $500. A copy of the written contract was attached to the original complaint and the same was offered and received in evidence upon the trial. Thereafter an amended complaint was served and filed demanding an additional month's salary of $500. The case was tried in September, 1954, and during the trial the plaintiff received permission from the court to amend the complaint further to demand $3,800 in damages. There is no testimony in the record as to the amount of plaintiff's expenses while he was working for the defendant.
The case was submitted to a jury on a general verdict and the jury found for the plaintiff and assessed his damages at the sum of $2,000. After the verdict was returned by the jury the plaintiff moved for judgment on the verdict and for his costs and disbursements. The defendant moved for a new trial on five separate grounds, one of which was because the damages as fixed by the jury bore no reasonable relation to the uncontradicted evidence introduced at the trial and the said verdict was therefore perverse and reflected bias, prejudice, and compromise on the part of the jury. On November 13, 1954, the court entered an order setting aside the verdict and granting a new trial on the ground that the verdict was perverse and reflected compromise on the part of the jury. The plaintiff appealed from said order.
At the trial the defendant introduced testimony that indicated that the sales in its job-printing department decreased materially during the time the plaintiff was employed and that it had requested the plaintiff to furnish a daily report of the calls made by him. The defendant also offered testimony to show that although the plaintiff had filed some reports he had not made daily reports in writing. The plaintiff admitted that he had been requested to make daily reports but that a form thereof was to be printed by the defendant and copies furnished to him for that purpose. It is clear that he was not furnished with the printed forms for the making of the reports. In the opinion of the defendant, plaintiff's poor showing and his failure to furnish the reports justified his discharge.
In a written decision in response to the motions after verdict, the trial court gave as his reason for granting the new trial, that the jury had disregarded his instructions in returning a verdict for $2,000. It was the trial court's feeling that the plaintiff was entitled to a verdict for approximately $3,800 or the defendant was entitled to a finding of no cause of action. The trial court was of the opinion that the damages were capable of mathematical computation and that the finding of the jury bore no reasonable relation to the uncontroverted evidence as to damages introduced at the trial and therefore reflected compromise and perverseness on the part of the jury.
The court relied upon the cases of New Home Sewing Machine Co. v. Simon, 107 Wis. 368, 83 N.W. 649, and General Die Stamping Corp. v. Bolens, 205 Wis. 664, 238 N.W. 814. Those cases, however, are not applicable. It is true that where there is a legal measure of damages the jury must determine the amount thereof as a fact according to that measure. For a breach of an employment contract the one injured is entitled to fair and just compensation commensurate with the loss sustained. However, the party injured has the duty of using ordinary care and making all reasonable efforts to render the injury as light as possible. He must use reasonable diligence to protect himself from loss and to mitigate damages.
The excess of plaintiff's earnings from April, 1953, to the termination date of the contract were credits to which the defendant was entitled. The defendant was also entitled to a credit for a reasonable amount to offset plaintiff's expenses. A verdict of $3,800 in favor of the plaintiff would have been excessive upon the record here as that sum would not reflect the credits to which the defendant was entitled. From the record the jury could not make an exact mathematical computation of plaintiff's damages. Since the parties gave the jury little help, so far as the credits were concerned, the jury was required to use its best judgment in that regard. Under the circumstances we feel that the jury rendered a commendable service and arrived at a fair result in fixing plaintiff's damages. Upon the record the trial court was in error in ordering a new trial.
By the Court. — Order reversed. Cause remanded, with directions to enter a judgment in favor of the plaintiff and against the defendant for the sum of $2,000 together with costs and disbursements.