Harris v. National Union of Marine Cooks & Stewards

DOOLING, J.

The judgments here appealed from affect the same five plaintiffs who received the judgments affirmed by this court in

Harris

v.

National Union etc. Cooks & Stewards, 98

Cal.App.2d 733 [221 P.2d 136]. On that appeal we affirmed a judgment granting a writ of mandate which ordered the restoration of these plaintiffs to membership in defendant union and awarded them damages for loss of wages caused by their illegal expulsion therefrom. In entering the former judgment the trial court retained jurisdiction pending the appeal for the purpose of awarding such additional damages as might be suffered by plaintiffs until they were

[761]

actually restored to the union. The present awards cover the period from September 30,1948 to October 1,1950 when plaintiffs were finally restored to their membership. For this period each plaintiff was given judgment for $5,000. The only questions presented on this appeal relate to the damages, since the right to such damages as plaintiffs properly proved are settled by the former appeal.

Much of the briefs is taken up with the duty of respondents to mitigate their damages. The extent of this duty in a case of this character is delimited in

Smetherham

v.

Laundry Workers’ Union,

44 Cal.App.2d 131, 139 [111 P.2d 948]: “It is a general rule that it is the duty of an employee who has been wrongfully discharged before his term of service has expired, to seek other employment, and thus diminish the damages sustained by him. (8 Cal.Jur. 787.) Apparently this rule applies where the employee sues a third party for wrongfully bringing about his discharge.

(Adams

v.

Cameron,

27 Cal.App. 625 [150 P. 1005, 151 P. 286].) It is also a general rule that an employee who is wrongfully discharged is not obliged to seek or to accept other employment of a different or inferior kind, in order to mitigate damages. (Note to 28 A.L.R.