Indiana State Symphony Soc., Inc. v. Ziedonis

• Decision Date: 17 November 1976
• Docket Number: No. 2--474A91,2--474A91
• Parties: INDIANA STATE SYMPHONY SOCIETY, INC., Appellant, v. Viktors ZIEDONIS, Appellee.
• Court: Indiana Appellate Court

Page 253

359 N.E.2d 253

171 Ind.App. 292

INDIANA STATE SYMPHONY SOCIETY, INC., Appellant, v. Viktors ZIEDONIS, Appellee.

No. 2--474A91

Court of Appeals of Indiana, Second District.

Nov. 17, 1976.

Stephen Goldsmith, Barnes, Hickam, Panzer & Boyd, Indianapolis, for appellant.

John W. Tranberg, Indianapolis, for appellee.

WHITE, Judge.

Plaintiff-appellee (Ziedonis), formerly employed by defendant-appellant (Symphony) as a violinist in the Indianapolis Symphony Orchestra, recovered a verdict and judgment of $6,335.00 as damages for his discharge in alleged violation of his written employment contract. Symphony's appeal charges error (1) in denying its motion for judgment on the evidence, (2) in a jury instruction, and (3) in the amount of damages.

We reverse on the issue of damages.

Ziedonis was discharged twice: First on March 30, 1967, effective at the end of the 1967--1968 season, and again on April 15, 1967, effective immediately. He claims no right to recover for the first discharge which was effected in conformity with paragraph 4 of Symphony's 'Master Agreement' ¹ which he concedes permits such a delayed discharge for any reason or for no reason. The $6,335.00 he recovered was the amount (by his calculation) which he would have earned had he been permitted to work until that first discharge became effective.

The April 15th discharge was effected by a telegram reading:

'VIOLATION PARAGRAPH 42 OF MASTER AGREEMENT ON APRIL 13 AND 14 1967 NECESSITATES DISMISSAL IMMEDIATELY SERVICES NO LONGER REQUIRED WITH INDIANAPOLIS

SYMPHONY ORCHESTRA'.

The alleged violations of April 13 and 14, 1967, were Ziedonis' failures to appear on those dates for tour-concerts at Hutchinson, Kansas, and Ponca City, Oklahoma. Symphony contends these failures are violations of paragraph 24 of the Master Agreement which reads:

'It is agreed that the musicians will be present at all rehearsals and concerts unless excused in advance by the conductor, or illness or some condition beyond the musician's control, prevents his attendance.'

The dismissal telegram cited paragraph 42 of the Master Agreement which reads:

'DISMISSAL OR DISCHARGE FOR CAUSE (42) Any Musician engaged under the provisions of this agreement may be dismissed for insubordination, insobriety, persistent inattention to his duties, after having been warned, or for violation of any provision of this agreement for which no other penalties are herein provided.'

Symphony contends that the Master Agreement provides no penalty for violating paragraph 24, therefore, it reasons, any such violation justifies discharge pursuant to paragraph 42. Ziedonis contends that a penalty is provided by section 3 of his individual contract with Symphony which states that when 'the Musician is absent from any regularly scheduled service, the amount he would have received, if present, may be deducted from his weekly salary', if the absence was not excused or caused by illness. He also contends that his Hutchinson absence was excused and his Ponca City attendance was prevented by a condition beyond his control, i.e., his inability to obtain air transportation. The evidence on these issues was conflicting. The same is true of testimony adduced by Symphony to the effect that Ziedonis was guilty of repeated absence, tardiness, insobriety, disruptive conduct, failure to follow instructions, and other failures, which were either denied or excused by the testimony of other witnesses.

The evidence most favorable to appellee Ziedonis is sufficient to sustain a verdict in his favor, if believed by the jury, hence there is no error in the overruling of Symphony's motion at the conclusion of all the evidence, for judgment on the evidence. Mamula v. Ford Motor Co. (1971), 150 Ind.App. 179, 275 N.E.2d 849; Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701.

Furthermore, all of Ziedonis' alleged misconduct, except his absences from the concerts at Hutchinson and Ponca City, is alleged to have occurred prior to his discharge by letter pursuant to the Master Contract's paragraph 41, which permitted him to continue working through the next season. He therefore contends that Symphony thereby waived its right to contend that his prior conduct merited immediate discharge, that such prior conduct cannot be looked to as support for the later immediate discharge by telegram.

Ziedonis also submitted a jury instruction given by the court as follows:

'The best criterion of the meaning of a contract is the construction which the parties themselves place on it, and ordinarily their interpretation is looked to by the Court in determining the meaning of the contract.

'Strict performance of the terms of the contract on the part of one party may be waived by the other, by acts which show a relinquishment of one or more provisions of the contract.'

Symphony objected only to the second paragraph and only because 'it is not relevant to the issue formed by the pleadings nor to the facts raised by the evidence.' It was relevant to Symphony's attempts to justify the immediate discharge by evidence of misconduct prior to his April 13 and 14, 1967, tour absences. Much of that evidence related to rehearsals and concerts antedating the last renewal of his contract and all of it to times preceding the immediate discharge, which relied solely on those tour absences.

Symphony contends that the verdict is too large by at least $3,430, which is the amount Ziedonis testified in his own case-in-chief he was paid for playing with two out-of-town orchestras during the period for which the verdict awards him the full amount of his Symphony salary. Ziedonis counters with argument to the effect that Symphony has failed to sustain its burden of proving mitigation in that it has failed to prove that the $3,430 is profit and that, inasmuch as his Symphony employment was only part-time, Symphony has failed to prove that he could not have earned this income had he not been discharged. ²

As to the last point, Symphony says that it is obvious that Ziedonis could not have played for those orchestras had he also been employed by Symphony. Since neither orchestra appears to have played in or near Indianapolis that proposition is irrefutable.

A majority of this court is of the opinion, for the reasons stated in Presiding Judge Buchanan's concurring opinion, that the entire $3,430 should have been deducted in mitigation of Ziedonis' damages. Therefore a remittitur will be ordered.

It is the writer's opinion, however, that the burden of proving mitigation, if any, rested on Symphony, and that it failed to prove that his earning this $3,430 actually reduced his loss. Hinchcliffe v. Koontz (1890), 121 Ind. 422, 426, 23 N.E. 271; Hamilton v. Love (1899), 152 Ind. 641, 643, 53 N.E. 181; Pennsylvania Co. v. Dolan (1892), 6 Ind.App. 109, 124, 32 N.E. 802; Milhollin v. Adams (1917), 66 Ind.App. 376, 115 N.E. 803. It was Ziedonis' duty to use reasonable efforts to avoid loss by securing employment elsewhere ³ and, although it was not his burden to do so, he did prove that he had discharged that duty. The fact that in so doing he also proved that he earned a gross sum for our-of-town work in which he incurred expenses does not shift to him the burden of proving whether or not his earnings exceeded his expenses. Furthermore,...