State ex rel. Schilling v. Baird, s. 239

• Decision Date: 29 October 1974
• Docket Number: 240,Nos. 239,s. 239
• Citation: 65 Wis.2d 394,222 N.W.2d 666
• Parties: STATE ex. rel. Ronald SCHILLING, Respondent, v. Robert L. BAIRD et al., Appellants. STATE ex rel. William KLINGLER, Respondent, v. Robert L. BAIRD et al., Appellants.
• Court: Wisconsin Supreme Court

Page 666

222 N.W.2d 666

65 Wis.2d 394

STATE ex. rel. Ronald SCHILLING, Respondent, v. Robert L. BAIRD et al., Appellants.

STATE ex rel. William KLINGLER, Respondent, v. Robert L. BAIRD et al., Appellants.

Nos. 239, 240.

Supreme Court of Wisconsin.

Oct. 29, 1974.

Willis J. Zick, Corp. Counsel, Waukesha, for appellants.

D'Amato & Cusack, Waukesha, for respondent.

CONNOR T. HANSEN, Justice.

This case is a sequel to State ex rel. Klingler & Schilling v. Baird (1972), 56 Wis.2d 460, 202 N.W.2d 31, and, therefore, it is not necessary to again set forth the factual background in detail.

Klingler and Schilling appealed their suspensions as deputy sheriffs to the circuit court and were reinstated. They then commenced the instant actions to recover back pay. The trial court determined that they were entitled to their entire back pay with no deductions for outside earnings during the suspension period. The appellants then appealed and this court reversed and remanded for further proceedings consistent with its opinion. State ex rel. Klingler and Schilling v. Baird, supra.

On remand, it was stipulated by the parties that Klingler was owed back pay of $11,499.16 covering the period of suspension, and that against this figure the appellants would receive a credit of $1,000 for earnings of Klingler from self-employment during a portion of the suspension period. Thus, the credit allowed the appellants on account of Klingler's work during part of the suspension period is not an issue in this appeal. There is no stipulation of a credit in regard to Schilling although it is stipulated that during the part of the suspension period in which he was able to obtain employment, he earned $3,869.13, and that his back pay for the entire suspension period amounted to $11,510.38. The trial court deducted the earned income from his back pay and made a net award in the sum of $7,641.25.

The trial court found, on remand, that both Klingler and Schilling made reasonable and diligent efforts to secure other employment in order to mitigate damages during the period of the suspension.

The trial court also held that Klingler and Schilling were not entitled to pre-judgment interest on their back pay from the date that it would have been paid to them but for the suspensions.

ISSUES.

The following issues are raised by this appeal and the cross-appeals:

1. Is there a duty to seek employment during a period of suspension so as to mitigate damages?

2. If such a duty exists, did the trial court err in finding that Klingler and Schilling had satisfied their duty?

3. Are appellants entitled to a credit for the full earnings of Schilling during his period of suspension?

4. Are Klingler and Schilling entitled to interest on their back pay from the dates that it would have been paid to them but for the suspensions?

DUTY TO SEEK EMPLOYMENT.

Appellants assert that they have a right to receive a credit against the wages owed Klingler and Schilling for that period of suspension in which Klingler and Schilling did not make reasonable and diligent efforts to obtain other employment and thereby mitigate his damages.

This court has consistently recognized the rule that a discharged employee has a duty to seek other employment, and that the employer has the right to a credit to the extent that the employee obtains work and earns wages, or might have done so. Schiller v. Keuffel & Esser Co. (1963), 21 Wis.2d 545, 552, 553, 124 N.W.2d 646; Mitchell v. Lewensohn (1947), 251 Wis. 424, 432, 29 N.W.2d 748; Gauf v. Milwaukee Athletic Club (1912), 151 Wis. 333, 336, 139 N.W. 207.

The Wisconsin cases have further held that a discharged or suspended employee is not obligated to seek or accept employment of a 'different or inferior kind in order to minimize damages.' Schiller v. Keuffel & Esser Co., supra, 21 Wis.2d page 553, 124 N.W.2d page 651; Mitchell v. Lewensohn, supra, 251 Wis. page 432, 29 N.W.2d 748; State ex rel. Schmidt v. District No. 2 (1940), 237 Wis. 186, 191, 295 N.W. 36.

This court has held that the burden of establishing the lack of reasonable and diligent efforts by the employees to seek other employment and the availability of such employment, is on the employer. Schiller v. Keuffel & Esser Co., supra, 21 Wis.2d page 553, 124 N.W.2d 646; Barker v. Knickerbocker Life Ins. Co. (1869), 24 Wis. 630, 638. Thus, the question of whether such opportunities did exist is primarily a question of fact and as such relates not to the existence of a legal duty on the part of Klingler and Schilling, but to the sufficiency of the evidence proving a violation of that duty. The record indicates that prior to their suspensions, Klingler and Schilling did outside work: Klingler in the fields of excavating and snow removal; and Schilling in the field of roofing. Because of this previous employment experience, we do not hold that, as a matter of law, they were only obligated to seek employment in the field of police work in an effort to mitigate damages.

EFFORTS TO FIND EMPLOYMENT.

The appellants contest the efforts of Klinger to seek other employment during the period of his suspension between September 14, 1970, and January 1, 1971. Subsequent to January 1, 1971, it is conceded that Klingler was self-employed and the earnings from such employment were credited against his back pay pursuant to the stipulation previously mentioned.

The period in question in regard to Schilling is from September 14, 1970, to March, 1971. Subsequent to March, 1971, Schilling was able to obtain employment in various locations in Wisconsin and in Arizona, to which he moved in June, 1971.

The trial court reviewed the evidence and found that both Klinger and Schilling had made sufficiently diligent efforts to find other employment for the respective periods of time and denied the appellants any credits for those periods.

As previously stated, the burden of proof on the issue of failure to mitigate damages is on the employer. This court stated the rule in Barker v. Knickerbocker Life Ins. Co., supra, page 638, as follows:

'. . . The rule in such cases is, that although the damages may be so reduced, yet the burden is on the defendant to show affirmatively that the plaintiff might have had employment and compensation elsewhere. . . .'

The appellants introduced no evidence that any alternative employment was available to either Klingler or Schilling during the periods of time in question. It follows that the appellants have not sustained their burden of proof.

It is a well established rule that on appeal, this court will not disturb the findings of a trial court unless they are against the great weight and clear preponderance of the evidence. Precision Service Service Co. v. Schill (1973), 60 Wis.2d 346, 348, 210 N.W.2d 706. We have reviewed the record and deem it unnecessary to set forth the evidentiary facts therein contained. However, after such a review, we conclude that it cannot be said that the findings of the trial court are against the great weight and clear preponderance of the evidence.

Appellants suggest that this court can take judicial notice of the fact that there are many types of employment available throughout Wisconsin, and particularly in the suburban area of Milwaukee, which are equal to or superior to a deputy sheriff's position.

This court has held that it can and will take judicial notice of matters of common knowledge. Frederick v. Hotel Investments, Inc. (1970), 48 Wis.2d 429, 433, 180 N.W.2d 562. However, we decline to take judicial notice of the suggested fact that other employment of a like character, with similar and not inferior terms and conditions and in a place reasonably convenient, was available to these employees. Schiller v. Keuffel & Esser Co., supra, 21 Wis.2d 553, 124 N.W.2d 646; State ex rel. Schmidt v....