McKenna v. Commissioner of Mental Health

• Decision Date: 23 June 1964
• Citation: 347 Mass. 674,199 N.E.2d 686
• Parties: John L. McKENNA v. COMMISSIONER OF MENTAL HEALTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 686

199 N.E.2d 686

347 Mass. 674

John L. McKENNA v. COMMISSIONER OF MENTAL HEALTH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 1964.

Decided June 23, 1964.

Edward W. Brooke, Atty. Gen., and Nelson I. Crowther, Jr., Asst. Atty. Gen., for respondents.

Francis C. McKenna, Framingham, for petitioner.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

REARDON, Justice.

This is a petition for a writ of mandamus to compel the Commissioner of Mental Health and the superintendent of Cushing Hospital to restore the petitioner to his position at the Cushing Hospital without loss of compensation. See G.L. c. 249, § 5. On July 30, 1963, a judge of the Superior Court ordered the writ to issue and the petitioner was reinstated. On September 18, 1963, the judge ordered further that McKenna be reinstated as of December 11, 1962, and be paid his salary by 'the respondent' at the rate of $15.65 a day from the date of discharge to that of his return to work, for a total of $2,566.60. From this latter order the respondents appealed.

The petitioner, a veteran, who had been a special attendant at Cushing Hospital for more than three years, was discharged by letter as of December 11, 1962, for dereliction of duty. Because he was not given a copy of G.L. c. 31, §§ 43, 45, and 46A, or a hearing before the appointing authority, the judge ruled the discharge to have been in violation of G.L. c. 30, § 9A. ¹

The petitioner was reinstated as of July 27, 1963. In proper circumstances a petitioner can recover back salary incident to a writ of mandamus ordering reinstatement to employment. Chartrand v. Registrar of Motor Vehicles, Mass., 198 N.E.2d 425. ^a At the trial, however, McKenna admitted on cross-examination that he had made no effort to procure any employment following his discharge. ² For that reason, the respondents contend, he cannot recover for loss of salary.

'Where one is under contract for personal service, and is discharged, it becomes his duty to dispose of his time in a reasonable way, so as to obtain as large compensation as possible, and to use honest, earnest and intelligent efforts to this end. He cannot voluntarily remain idle and expect to recover the compensation stipulated in the contract from the other party.' Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 6, 85 N.E. 877, 879; Hussey v. Holloway, 217 Mass. 100, 105, 104 N.E. 471. See Osadchuk v. Gordon, 251 Mass. 540, 545, 146 N.E. 781; Levine v. Lawrence & Co., Inc., 305 Mass. 210, 211-212, 25 N.E.2d 201; Clark v. General Cleaning Co., Inc., 345 Mass. 62, 65, 185 N.E.2d 749; Restatement: Contracts, § 336; Williston, Contracts (Rev. ed.) §§ 1358-1360.

A succinct statement applicable to the status of the employee who has been discharged has been made in Corbin, Contracts, § 1039: 'It is not infrequently said that it is the 'duty' of the injured party to mitigate his damages so far as that can be done by reasonable effort on his part. Since there is no judicial penalty, however, for his failure to make this effort, it is not desirable to say that he is under a 'duty.' His recovery against the defendant will be exactly the same whether he makes the effort and mitigates his loss, or not; but if he fails to make the reasonable effort, with the result that his injury is greater than it would otherwise have been, he cannot recover judgment for the amount of this avoidable and unnecessary increase. The law does not penalize his inaction; it merely does nothing to compensate him for the loss that he helped to cause by not avoiding it.' See the concurring opinion of Chief Judge Cardozo in McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 354, 358-359, 169 N.E. 605.

The rule requiring reasonable efforts to secure other similar work has been applied to a veteran employed by the city of Boston as a laborer. Ransom v. Boston, 192 Mass. 299, 307, 78 N.E. 481; Id., 196 Mass. 248, 252-253, 81 N.E. 998. A statute and civil service rules analogous to the present G.L. c. 30, § 9A, gave preferential treatment to Ransom as a veteran.

Whatever right the petitioner has to lost salary arises under the 1949 amendment (St.1949, c. 176) which made GL. c. 249, § 5, read in material part: 'If the petitioner prevails, his damages, including any salary or wages to which the petitioner may be entitled, shall be assessed * * *.' See Chartrand v. Registrar of Motor Vehicles, supra, p. 430 of 198 N.E.2d. ^b We see nothing in these words to indicate an intended change in the rule of mitigation applied to a public employee in the Ransom v. Boston cases. See Edgar H. Wood Associates, Inc. v. Skene, Mass., 197 N.E.2d 886. ^c And since the petitioner is not the holder of a public office (see Ransom v. Boston, 192 Mass. 299, 306-307, 78 N.E. 481; Attorney Gen. v. Tillinghast, 203 Mass. 539, 543-545, 89 N.E. 1058; Commonwealth v. Oliver, 342 Mass. 82, 84, 172 N.E.2d 241), he may not have the benefit of a doctrine applied in a number of other jurisdictions which allows persons wrongfully deprived of public offices to recover their full salaries without deduction of earnings during the period of wrongful deprivation. Bullis v. Chicago, 235 Ill. 472, 480, 85 N.E. 614; Andrews v. Portland, 79 Me. 484, 492, 10 A. 458; Fitzsimmons v. Brooklyn, 102 N.Y. 536, 537-539, 7 N.E. 787. See 150 A.L.R. 100.

Our cases have indicated, however, that the employer has the burden of proof on the issue of mitigation of damages. Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 6-8, 85 N.E. 877; Osadchuk v. Gordon, 251 Mass. 540, 544-545, 146 N.E. 781; Levine v. Lawrence & Co., Inc., 305 Mass. 210, 211-212, 25 N.E.2d 201; Clark v....