Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

تمرين 18

FACTS Shirley MacLaine Parker, a well-known actress, contracted with Twentieth Century-Fox Film Corporation (Fox) in August 1965 to play the female lead in Fox's upcoming production of Bloomer Girl, a motion picture musical that was to be filmed in California. The contract provided that Fox would pay Parker a minimum ''guaranteed compensation'' of $750,000 for fourteen weeks of Parker's services, beginning May 23, 1966. By letter dated April 4, 1966, Fox notified Parker of its intention not to produce the film and, instead, offered to employ Parker in the female lead of another film entitled Big Country, Big Man, a dramatic western to be filmed in Australia. The compensation offered and most of the other provisions in the substitute contract were identical to the Bloomer Girl provisions, except that Parker's right to approve the director and screenplay would have been eliminated or reduced under the Big Country contract. Parker refused to accept and brought suit against Fox to recover $750,000 for breach of the Bloomer Girl contract. Fox contended that it owed no money to Parker because she had deliberately failed to mitigate or reduce her damages by unreasonably refusing to accept the Big Country lead. The trial court granted Parker a summary judgment. (The court's opinion with respect to the rules for determining whether to grant summary judgment appears in Chapter 3.)
DECISION Judgment for Parker affirmed.
OPINION Burke, J. The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. [Citations.] However, before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employee's rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages. [Citations.]
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Applying the foregoing rules to the record in the present case, with all intendments in favor of the party opposing the summary judgment motion-here, defendant-it is clear that the trial court correctly ruled that plaintiff's failure to accept defendant's tendered substitute employment could not be applied in mitigation of damages because the offer of the Big Country lead was of employment both different and inferior, and that no factual dispute was presented on that issue. The mere circumstance that Bloomer Girl was to be a musical review calling upon plaintiff's talents as a dancer as well as an actress, and was to be produced in the City of Los Angeles, whereas Big Country was a straight dramatic role in a ''Western Type'' story taking place in an opal mine in Australia, demonstrates the difference in kind between the two employments; the female lead as a dramatic actress in a western style motion picture can by no stretch of the imagination be considered the equivalent of or substantially similar to the lead in a song-and-dance production.
Additionally, the substitute Big Country offer proposed to eliminate or impair the director and screenplay approvals accorded to plaintiff under the original Bloomer Girl contract *** and thus constituted an offer of inferior employment. No expertise or judicial notice is required in order to hold that the deprivation or infringement of an employee's rights held under an original employment contract converts the available ''other employment'' relied upon by the employer to mitigate damages, into inferior employment which the employee need not seek or accept. [Citation.]
INTERPRETATION An injured party's damages may not be reduced by mitigation for her failure to accept or seek other employment of a different or inferior kind.
ETHICAL QUESTION Was it fair for Twentieth Century-Fox Film Corporation to expect Parker to act in the substitute film? Explain.
CRITICAL THINKING QUESTION Why should an injured party be required to mitigate damages? Explain.