
    Nortonville Coal Co. v. Sisk.
    (Decided October 20, 1911.)
    Appeal from' Hopkins Circuit Court.
    Contracts — Agreement to ¡Perform Certain ¡Kinds of Labor — Failure — Measure of Damages.. — In an action for damages for breach of contract in failing to pay appellee, who was injured by appellants’ negligence, an agreed compensation per month, until able to perform such labor as he was doing when injured, the measure of damages recoverable is the 'contract price less what the employe earned, or might, by reasonable diligence have earned, in some other lighter employment he was capable of performing.
    
      <0. J. WADDELL, JOHN T. EDMONDS for appellant.
   Opinion of the Court by

Judge Settle

Reversing.

Appellee recovered a verdict and judgment against appellant in the court' below for $6,000, damages, .growing out of the alleged breach by the latter of a contract it made with Mm.

It was alleged in the petition that appellee, on January 10th, 1907, while at work as a “shooter” in appellant’s mine, sustained through its negligence, permanent bodily' injuries which lessened bis capacity to earn money; that shortly after he. received such injuries he was preparing to sue appellant therefor, when the latter, by contract with him, compromised Ms claim for1 damiages by agreeing in consideration of his injuries and promise not to sue it therefor, to pay him $50.00 a Month from the time he was injured until he should be able to do the Mnd of work at which he was engaged when so injured; that appellant, in compliance with its contract! thus miaide with appellee, paid him $50.00 per month until February 1st. .1909, at which time it broke, and hais since continuously broken its contract, by failing and refusing to piay appellee the $50.00 per month therein promised, or any part thereof.

It was further alleged in the petition that, appellee has never since Ms injuries were received been (aibles to perform the kind of labor in which he was then engaged, or lab'or of any kind, except very light labor requiring little strength or endurance-; and that he will never again be able to perform sucli labor as lie was engaged in at the time he was- injured.

The appellant’s answer traversed the avermlents of the petition and alleged that its general manager, Elgin with whom appellee claimed to have made the contract in question, was without authority to make it. All laffirmiative matter in the answer wiais controverted by reply.

Appellee’s evidence conduced to prove that be was injured by the negligence of appellant, the contract with the latter, and its breach thereof; and that of appellant conduced to prove the grounds of defense alleged in its answer. It is, however, insisted for appellant that although unable to do- such work as- that in which he- was engaged ait the time he Was injured, appellee could h|a,ve done, and can yet do, -other work requiring little, if any, manual labor; and that as he failed to prove his inability to secure such work, or any effort on His part to- do- so the jury should have been peremptorily instructed by the court to find for appellant. This contention is untenable. The mere violation by appellant of the contract, 'if there was such a contract and it was violated by it, as alleged, entitled appellee to nominal damiages. But it does not necessarily follow that! because appellant wrongfully violated the contract appellee was actually damaged to the extent of the sum he would have received nud'er the contract. It is admitted by him that he was and is capable of performing light labor requiring little strength or endurance, and shown by the evidence that, he performed ’for appellant since his injuries were sustained some light service as a deputy marshal; so notwithstanding appellant ’s violation of the contract, if appellee after its breach secured, or by ordinary care could have obtained, employment at such light labor as he was capable of performing, whait he earned, or might thereby have earned, shioujld have been deducted from the damages resulting from the loss of the compensation he sustained by appellant’s violation of the contract.

As said in the opinion in John C. Lewis Co. v. Scott, 95 Ky. 485:

“If an employe is under contract to perform service for a stipulated time, and' is wrongfully discharged by his employer before the expiration of his term of service, he may recover his actual damages. He may recover nominal damages on the mere allegation of the breach of the contract, but it does not follow thla-t because he was wrongfully discharged, and the contract therefore broken he h)a;s been actually damaged to the extent of the sum he would have received under the contract. By immediately obtaining more remunerative employment, he may have in fact profited by the discharge. Therefore, in bringing his action, if he has been specially damaged, that is, failed to find employment, or, finding it, is not paid as much as he would have received1 for like service under the contract, then he must s'ay so, or be content with nominal damages only. ’ ’ Frazier v. Clark et al, 88 Ky. 266.

In the very recent case of Bridgford & Co. v. Meagher, 144 Ky. 479, the facts of which are more nearly akin to 'those of the case at bar, thie same mielaisure of damages was approved.

We understand the principle announced in the cases, supra, to be applicable to the present case. In other words, the measure of damages is the contract price less wh'aitl the appellee earned, or might by reasonable diligence have earned, in some other or lighter employment he was capable of following. Whitaker v. Dandefur, 1 Duvall, 262; Chamberlain v. McAlister, et al, 6th Dana, 358; Dufficy v. Brennan, 10 R. 637; Kentucky Shoe Mfg. Co. v. Caraway, 136 Ky., 581; Sutherland on Damages, vol. 2, page 474.

It follows from what we -have said that the' circuit court did not err in refusing the peremptory instruction asked by appellant. It did, however, in our opinion, err, as contended by counsel for appelant, in giving the jury instruction No. 3 containing the measure of damages. That instruction reads as follows:

“If the jury find for the plaintiff, they should only award him such sum in damages, as they may believe from the evidence will be equivalent to $50.00 per month from the date of the contract, if one was. made, until such time a;s he m!ay recover from his injuries sufficiently to enable him to do 'the hind of work he wias doing at the time he was injured, and if they find from the evidence that he has already sufficiently recovered to perform such labor or work, they should only find for Mm such sum as will be equivalent to $50.00 per month up to 'the time he so recovered, and if they find for plaintiff in any sum, they should deduct from siame, such sums as may have been paid, if they believe that anything was paid Mm in settlement and compromise of his claim for damages by reason of such injuries.”

Manifestly, this instruction fails to conform to the true measure of damages. To make it do so, there should upon a re-trial of the case he added to the last line thereof these words:

“And such further sum, if any, as- be may have earned or by ordinary care, could have earned at other or lighter work he may have been: able to perform.”

Instructions one and two we find to be correct.

Appellant is entitled to prove, if it cam .do- m. that its manager with whom appellee claimed to have made 'the contract in question, was without authority to make it. This can be done'by showing what Ms authority and powers were as appellant’s manager, and not by putting to him, as was done, the leading question, whether he at the time of the alleged contract possessed the authority to make it. Therefore, the court did not err, as contended by appellant's counsel* in excluding tbe question in this, form.

We deem it unnecessary to discuss the other grounds of reversal relied on by appellant’s counsel, as they are not in onr opinion material. But on account of the error contained in instruction number three, the judgment must he, iamd is, reversed, and the cause remanded for a new trial and further proceedings consistent with the opinion.  