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Ind. State Symphony Soc'y v. Ziedonis - 171 Ind. App. 292, 359 N.E.2d 253 (1976)

Rule:

The burden of proving mitigation, if any, rested on defendant employer. 

Facts:

Defendant Indiana State Symphony Society, Inc. and plaintiff Viktors Ziedonis, a violinist, entered into an employment contract. Thereafter, plaintiff was terminated after he missed two out of town shows. The discharge was to be effective after the end of the symphony season. However, the plaintiff was discharged again, effective immediately, before the end of the symphony season. In his complaint, the plaintiff alleged that he was entitled to damages that resulted from the second discharge because under his employment contract, he was allowed to finish the symphony season. The trial court entered judgment in the amount of $ 6,335 in favor of the plaintiff. The defendant appealed, arguing that the plaintiff was not entitled to full amount of the judgment because he had mitigated his damages by procuring alternate employment.

Issue:

Did the defendant prove that the plaintiff employee mitigated his damages by procuring alternate employment? 

Answer:

No.

Conclusion:

The court held that the amount that the employee earned after gaining alternate employment should have been deducted in mitigation of the employee's damages. However, the court also noted that the burden of proving mitigation, if any, rested on defendant, and that it failed to prove mitigation. The judgment of the trial court overruling defendant's motion to correct errors was reversed and the cause was remanded to the trial court with directions to grant a new trial on the sole issue of the amount of plaintiff's damages subject to a remittitur of $ 3,430. 

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