Lewis v. Bledsoe Surface Min. Co.
| Decision Date | 08 November 1990 |
| Docket Number | No. 90-SC-199-DG,90-SC-199-DG |
| Citation | 798 S.W.2d 459 |
| Parties | Larry LEWIS, Appellant, v. BLEDSOE SURFACE MINING COMPANY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Phillip Lewis, Hyden, for appellant.
Debra H. Dawahare, Wyatt, Tarrant & Combs, Lexington, for appellee.
This Court granted discretionary review of the decision of the Court of Appeals which reversed a jury verdict as to damages. Although not identified as such by the Court of Appeals or the parties, the issue appears to be whether appellant (plaintiff at trial) presented sufficient evidence at trial of his diligence in seeking other employment to support the verdict of the jury as to damages. Said otherwise, should appellee (defendant at trial) have been granted a directed verdict for any damages in excess of nominal damages? As will be explained, significant issues which might have been presented are not before the Court.
As determined by the jury and affirmed by the Court of Appeals, appellant was wrongfully discharged by appellee for bringing a workers' compensation claim. Appellee did not file a cross-motion for discretionary review in this Court, and the liability question was resolved against it by the Court of Appeals. Therefore, we are not at liberty to review the sufficiency of the evidence on this issue. CR 76.21. Accordingly, the parties' extensive discussions of the facts giving rise to the claim of wrongful discharge are largely irrelevant to our inquiry.
At the close of all the evidence, appellee tendered instructions with which appellant agreed. These instructions, submitted in the form of special interrogatories, required the jury to find, inter alia, the amount appellant would have earned from appellee but for the wrongful discharge, the amount he actually earned from other employment, and whether he exercised reasonable diligence to secure other employment during the relevant period. Manifestly, the instructions sound in contract and may be at odds with this Court's decision in Firestone v. Meadows, Ky., 666 S.W.2d 730, 732 (1984), in which we characterized a cause of action for wrongful discharge as "perfectly consistent with the law of torts." However, in view of the absence of any objection by either party to the instructions given, there is no issue in this case as to whether the instructions properly defined the allowable recovery and this Court's resolution of the issue as presented should not be interpreted as approval or disapproval of the manner in which the jury was instructed. O'Leary v. Commonwealth, Ky., 441 S.W.2d 150 (1969).
Despite its affirmance of the trial court on the issue of wrongful discharge, the Court of Appeals determined that appellant's evidence was insufficient to justify the damages awarded. It appears to have been the view of the Court of Appeals that appellant failed to prove that he exercised reasonable diligence to secure other work during the period for which damages were recovered. Conceding that appellant presented sufficient evidence to support a finding that he suffered loss of wages beyond the date appellee ceased doing business, the Court of Appeals said:
"We can only conclude that it [appellant's proof] fell far short of furnishing an evidentiary basis for believing that appellee had exercised reasonable diligence to secure other employment throughout the entire time from his discharge to the date of trial."
Nevertheless and curiously, the case was remanded to the trial court "for a new trial on the issue of damages only." As with the issue of liability for wrongful discharge, appellee did not move for leave to cross-appeal from the order remanding for a new trial on damages and we must therefore conclude that it was also satisfied with that portion of decision of the Court of Appeals. CR 76.21.
From the foregoing and as earlier stated, our only inquiry is whether appellant presented sufficient evidence that he exercised reasonable diligence to secure other work during the period for which damages were awarded. Upon examination of the evidence, we discover appellant's testimony that after his discharge, he sought employment at a number of coal companies, a sawmill and employment as a truck driver. He identified the persons and companies whom he had contacted seeking employment. Conceding that he had not applied for work every week from the time of his discharge until the date of trial, appellant insisted that he had been diligent. There was also unchallenged evidence that appellant had commenced a used car business which proved to be unsuccessful and that he had driven a truck occasionally during the relevant period.
Appellee characterized the evidence as "a vague list of eight or nine...
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Sand Hill Energy, Inc. v. Ford Motor Co.
......16 The prevailing standard is concisely stated in Lewis v. Bledsoe Surface Mining, 17 as follows: . Upon review ......
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Fayette County Board of Education v. Maner, No. 2007-CA-002243-MR (Ky. App. 5/22/2009)
...or prejudice.'" Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 798 (Ky. 2004) (quoting Lewis v. Bledsoe Surface Mining, 798 S.W.2d 459, 461-62 (Ky. 1990) (internal citations omitted in Thus, our review is independent of the grounds relied on or stated by the trial cou......
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Osborne v. Keeney
...5.Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky.1998) ( citing NCAA v. Hornung, 754 S.W.2d 855 (1988)); Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459 (Ky.1990). 6.Bierman, 967 S.W.2d at 18 ( citing Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814 (Ky.1992)). 7.Id. (citation omitted). 8......
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Baker v. Commonwealth, No. 2005-CA-001588-MR (Ky. App. 10/19/2007)
...it puts review of an agency's decision at least on a par with appellate review of a jury verdict. Compare, Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461 (Ky. 1990)(reversal not justified unless jury verdict is "palpably or flagrantly against evidence." Internal quotation marks omit......