Harris v. National Union of Marine Cooks & Stewards

• Citation: 254 P.2d 673,116 Cal.App.2d 759
• Court: California Court of Appeals
• Decision Date: 20 March 1953
• Parties: HARRIS et al. v. NATIONAL UNION OF MARINE COOKS & STEWARDS, etc. et al. Civ. 15221.

Page 673

254 P.2d 673

116 Cal.App.2d 759

HARRIS et al. v. NATIONAL UNION OF MARINE COOKS & STEWARDS, etc. et al.

Civ. 15221.

District Court of Appeal, First District, Division 2, California.

March 20, 1953.

Hearing Denied May 14, 1953.

Gladstein, Andersen & Leonard, San Francisco, for appellants.

Ropers & Majeski, Redwood City, Robert J. Barbieri, San Francisco, Aaron Sanpiro, Los Angeles, and G. C. Ringole, San Francisco, for respondents.

DOOLING, Justice.

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 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 $5000. 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, 952: '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. 737; Elbert v. Los Angeles Gas Co., 97 Cal. 244, 32 P. 9.'

The problem presented to the trial court in the case of each of the five respondents was to determine: 1. If each respondent had not been prevented from obtaining employment with the shipping companies which employed its stewards through the appellant union during how many months of the two year period covered by the judgments might each respondent have actually been employed by such companies and what would his earnings have been from such anticipated employment? 2. Was comparable employment open to each respondent with other companies not under contract with appellant union? 3. If comparable employment was available did each respondent make a reasonable effort to secure such employment or was there some reasonable ground for his not doing so? 4. If any respondent failed to make a reasonable effort to mitigate his damages by how much would the damages have been reduced if he had made such effort?

It is obvious that these questions are fraught with uncertainty, an uncertainty which fathers the rule quoted by us on the previous appeal in this case from Zinn v. Ex-Cell-O Corp., 24 Cal.2d 290, 297-298, 149 P.2d 177: 'One whose wrongful conduct has rendered difficult the ascertainment of the damages cannot escape liability because the damages could not be measured with exactness.' Harris v. National Union, etc., Cooks & Stewards, supra, 98 Cal.App.2d at page 738, 221 P.2d at page 139.

The appellants proved that through the Sailors Union of the Pacific there were opportunities for some employment as stewards principally on tankers and that there were a few such opportunities on a limited number of other vessels. They also proved that due to a shortage of positions men in the classification of respondents normally worked about three-quarters of the year. A witness Turner, called by respondents, who was familiar with the working conditions in the field testified at length to what the respondents Harris Kaplan and Handelsman would have earned during the two year period in question if they had not been deprived of their opportunity to work for the companies supplied by appellant union. Without breaking down his figures they ran close to $20,000 for the two year period. With these general facts in mind we approach each individual case.

The Harris Evidence.

Harris testified that while he was a member of the Sailors Union of the Pacific and could have had work as a steward on tankers he did not accept it because he suffered from catarrh and the fumes on tankers aggravated this condition. On cross-examination he gave some answers which tended to weaken this testimony but its weight in view of these later answers was for the trial court to determine. Evidence tending to support Harris' testimony of the bad effect of the fumes on tankers upon his respiratory condition is the fact that he went to New Orleans during this period and shipped out from there on three voyages in another type of vessel for a period aggregating 171 days. A man who does not want to work at his profession would clearly not go to so much trouble to obtain such work. Harris also engaged in some employment on shore. It is argued that he testified that he was working day and night during this period on his controversy with the union, but he also testified that he was seeking employment day and night. We cannot say that taking all the factors into consideration and award of $5000, $2500 per year, is not supported by...