{
  "id": 2455647,
  "name": "Ervin Hill and Fannie Hill, Appellees and Cross-Appellants, v. Bell Discount Corporation, a Corporation, Defendant-Appellant",
  "name_abbreviation": "Hill v. Bell Discount Corp.",
  "decision_date": "1963-02-25",
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    {
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        {
          "page": "771"
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  "casebody": {
    "judges": [
      "BURMAN, P. J. and ENGLISH, J., concur."
    ],
    "parties": [
      "Ervin Hill and Fannie Hill, Appellees and Cross-Appellants, v. Bell Discount Corporation, a Corporation, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nPlaintiffs cross-appeal from a judgment in their favor, on the ground that the damages awarded them are inadequate. This is the sole question for determination, since defendant-appellant has abandoned its appeal.\nPlaintiffs brought this action in equity to restrain the continuing use of a wage assignment which was executed by them as part of a conditional sales agreement for the purchase of an automobile. The court entered a decree cancelling the instrument and permanently enjoining defendant from its use, and retained jurisdiction to assess damages. After hearing evidence, the court assessed plaintiffs\u2019 damages at $2,200, and entered judgment against defendant for that sum.\nPlaintiff Ervin Hill, a tractor operator, was discharged by his employer when the latter was served by defendant with a wage demand and a copy of the wage assignment. In the supplemental decree assessing damages, the chancellor found that plaintiff Ervin Hill, having been discharged \u201con or about July 1, 1959, remained unemployed until January 29, 1962, during which time he did not work and did not earn any money whatsoever.\u201d The record indicates that plaintiff Hill\u2019s loss of earnings for that period was in excess of $12,000.\nThe court also found that plaintiff Ervin Hill \u201chaving had considerable experience as a tractor operator, chipper and grinder that he primarily sought employment in such skilled jobs and did not seek work as an unskilled laborer or work which paid less than what he had been earning,\u201d and that he \u201cdid not make sufficient efforts to mitigate the loss he suffered, and that he was under a duty under law to attempt to mitigate his damages and loss.\u201d\nPlaintiffs\u2019 theory is that they are entitled to $12,005.76, which is said to be the full amount of earnings lost by plaintiff Ervin Hill minus sums received as unemployment compensation during the period of unemployment resulting from defendant\u2019s unlawful use of the wage assignment. Plaintiffs argue that since defendant\u2019s unlawful interference with Hill\u2019s employment was \u201cintentional and persistent,\u201d Hill was under no duty to seek other employment in order to mitigate the damages attributable to defendant\u2019s use of the wage assignment.\nThe authorities cited in support of plaintiffs\u2019 contention indicate that \u201cthe rule requiring one to minimize the damages arising from an injury to property does not apply in cases of intentional or positive and continuous torts\u201d (McCullagh v. Goodyear Tire & Rubber Co., 342 Mich 244, 69 NW2d 731, 738 (1955)), and that \u201cthere is no obligation on the part of a person who has been deprived of the contract of employment by the intentional wrong of a third person to minimize the damage to the third person by entering upon other employment.\u201d Carmen v. Fox Film Corp., 204 App Div 776, 783, 198 NYS 766, 771 (1923).\nPlaintiffs cite no authority to indicate that the foregoing broad principle has been applied in Illinois. We are not persuaded that it should be applied in the instant appeal.\nIn Kelly v. Chicago Park Dist., 409 Ill 91, 98 NE2d 738 (1951), (at p 98), our Supreme Court quoted with approval statements made in State v. City of Miami, 13 So2d 707:\n\u201cThe principle of \u2018avoidable consequences\u2019 upon which the reduction of damages rule is grounded is not confined entirely to the narrow limits suggested by the appellant. It finds its application in virtually every type of case in which the recovery of a money judgment or award is authorized. (Sedgwick on Damages, 9th ed, sec 204, p 390; 15 Am Jur, sec 27, p 420; 25 CJS, Damages, sec 33, p 499.) It addresses itself to the equity of the law that a plaintiff should not recover for those consequences of defendant\u2019s act which were readily avoidable by the plaintiff. Sutherland on Damages, (1844) vol 1, p 226, et seq.\u201d\nEarlier, in Williams v. Chicago Coal Co., 60 Ill 149 (1871), in considering an action by an employee against a company for wrongful discharge, our Supreme Court said (p 155):\n\u201cThe law will not permit him to so conduct himself as to aggravate the damages. He must not lie idle when it is practicable to get work of the same general character.\u201d\nWe also note similar statements in William v. Scott, 70 Ill App 51 (1897) and Slater v. Chicago Transit Authority, 5 Ill App2d 181, 185, 125 NE2d 289 (1955).\nFrom the foregoing Illinois authorities, we conclude., as found by the trial court, that the rule to be applied in this state is that plaintiff Hill \u201cwas under a duty under law to attempt to mitigate his damages and loss.\u201d As the record before this court does not include the testimony of any witness, this court will presume to be correct the findings by the chancellor that the plaintiff \u201cmade insufficient efforts to find employment during the said period of his unemployment,\u201d and \u201cdid not seek work as an unskilled laborer or work which paid less than what he had been earning.\u201d Therefore, it follows that the damages awarded to plaintiff by the trial court, in the sum of $2,200, should be affirmed.\nAffirmed.\nBURMAN, P. J. and ENGLISH, J., concur.",
        "type": "majority",
        "author": "MR. JUSTICE MURPHY"
      }
    ],
    "attorneys": [
      "William S. Blatt, of Chicago, for appellant.",
      "Joseph J. Attwell and Wilson Frost, of Chicago, for plaintiffs-appellees and cross-appellants."
    ],
    "corrections": "",
    "head_matter": "Ervin Hill and Fannie Hill, Appellees and Cross-Appellants, v. Bell Discount Corporation, a Corporation, Defendant-Appellant.\nGen. No. 48,808.\nFirst District, First Division.\nFebruary 25, 1963.\nRehearing denied March 21, 1963.\nWilliam S. Blatt, of Chicago, for appellant.\nJoseph J. Attwell and Wilson Frost, of Chicago, for plaintiffs-appellees and cross-appellants."
  },
  "file_name": "0426-01",
  "first_page_order": 436,
  "last_page_order": 440
}