WELLFORD, Circuit Judge.
This is a diversity action brought by Richard P. Katch ("Katch") against his former employer, Speidel Division of Textron, Inc. ("Speidel"), arising from Speidel's termination of Katch's employment in May, 1980. Katch claimed that Speidel, by its written personnel policies and by various oral statements to him, had created and then breached a number of contractual obligations to him, most important of which was the obligation not to discharge him without just cause. Speidel denied these claims, and now seeks review of an adverse jury verdict in the amount of $1,534,000 as damages for breach of contract, which was reduced, by means of remittitur, to $1,190,789 by the trial court.
Katch was a longtime employee of a Speidel distributor, with background in sales and management. While serving as operations manager of a distributorship in Michigan, he was approached by Speidel's then vice-president of Marketing and Sales, Mr. Keller, concerning Katch's becoming general manager of a Speidel distributorship in Cincinnati. After a series of discussions with Keller, plaintiff took the job and moved his family to Ohio, assuming his duties on August 1, 1978.
It soon became apparent that Speidel would not expand the Ohio operations to the extent originally planned. Talk centered on merging the Cincinnati operations with the Detroit operations of defendant company. Katch agreed that this would be a wise move, and he testified that Keller, who did not have the ultimate authority, allegedly promised plaintiff that he would be, in due course, named general manager of the consolidated operations at Detroit. Based on this discussion with Keller, Katch signed a purchase agreement to have a home constructed in the Detroit area. Despite the fact that changes had not yet
The warehousing and distribution functions of the Ohio and Michigan operations were finally consolidated in December of 1979; Katch was told by Speidel's president, Mr. Massotti, to locate a sales office in Cincinnati, not in Detroit as expected by Katch, who thereafter obtained a Cincinnati sales office in late January of 1980. A short time later, Massotti telephoned Katch and told him that he would be remaining in Cincinnati. By this time, however, plaintiff was in possession of a revised budget forecast indicating that the Cincinnati sales office might not exist past July of 1980. He then requested a meeting with Massotti to discuss his situation, and they met in mid-February of 1980. They agreed that plaintiff would work out of Detroit on Mondays and Fridays and out of Cincinnati on Tuesdays, Wednesdays and Thursdays.
During the next weeks, Katch was requested, but refused, to sign several documents which were entitled "employment agreements," but which would more accurately be labelled "termination agreements."
In mid-April, the position of general manager of Speidel's consolidated Detroit operations became open. Katch was not considered for the position, which was awarded to Lee Hill, whose overall job performance ranking and seniority was lower than plaintiff's. Hill, however, did have a better knowledge of some of the larger accounts served by the consolidated operation. On May 2, Katch was informed that he was being terminated as of one week later. At trial, Katch testified that his salary at the time of termination was $36,300. Based upon his experiences with Speidel, Katch testified that he would have expected to receive annual merit raises of 6.4% and an annual bonus of 21% of his salary, had he continued with Speidel until age 65. He also testified that he expected to receive an annual pension of $41,862.24, based upon his anticipated salary and bonus increments, at age 65. Unfortunately, prior to hearing argument on appeal, we were advised that Katch had unexpectedly died and his wife as his representative is now acting as plaintiff-appellee.
The summary of facts as related essentially set out Katch's position, although Speidel took issue with some of the material facts stated, particularly Katch's assertion that Speidel had any policy that it would not discharge except for just cause. It took the position at trial that Katch's position was eliminated and that he was laid off in the reorganization of the Cincinnati and Detroit operations, and that Speidel was not precluded lawfully from terminating him for that reason regardless of any alleged "good cause" policy.
Speidel submitted a number of detailed proposed instructions in this case prior to the submission to the jury. In dealing with the issue of mitigation, the trial judge rejected Speidel's requested instructions and gave instead his own instruction, over Speidel's objection. The court's instruction on the duty to mitigate was:
The judge's refusal to give defendant's requested instruction on mitigation was that he considered it to be "too complex." But in streamlining and simplifying, the judge omitted entirely a critically important element of any instruction on mitigation: the requirement that monies earned in mitigation must be deducted from damages. Defendant's requested instruction on mitigation was as follows:
The colloquy between the court and Speidel's counsel concerning the submission of instructions is as follows:
Federal Rules of Civil Procedure 51 sets out the standard to be applied:
While Speidel's counsel was not "distinct" in his objection to the court's instruction on mitigation of damages, we believe that the objection was sufficiently preserved on the record for appellant to assign as error the failure to give the requested instruction, and/or to be heard on appeal that the instruction given was erroneous. Rule 51 is not always strictly enforced according to the letter of the Rule. For instance, oral, rather than written, requests have been found sufficient to inform the court of the point of law involved. Weathersby v. Gore, 556 F.2d 1247, 1255-56 (5th Cir.1977); Dunn v. United States, 318 F.2d 89, 93 (5th Cir.1963). See also, Rodgers v. Fisher Body Division, 739 F.2d 1102 (6th Cir.1984).
Even if an incorrect proposed instruction is submitted which raises an important issue of law involved in light of proof adduced in the case, it becomes the duty of the trial court to frame a proper instruction on the issue raised, and the court's instruction may then be considered on appeal. Celanese Corp. of America v. Vandalia Warehouse Corp., 424 F.2d 1176 (7th Cir.1970); Messer v. L.B. Foster Co., 254 F.2d 412, 414 (5th Cir.1958); Westchester Fire Ins. Co. v. Hanley, 284 F.2d 409, 418 (6th Cir.1960).
Jones v. Miles, 656 F.2d 103, 107 n. 6 (5th Cir.1981). The question of mitigation in this case was an important aspect in view of plaintiff's age at the time of his termination, and the number of years' benefits being claimed. The court's attention was called to the mitigation question, even if specificity was lacking, and the instruction was necessary to insure that subtraction of
We believe that the court's instruction on mitigation was inadequate in that it was not made clear that the mitigation duty involves a reduction from the claimed loss of wages or earnings from the employer against whom plaintiff is seeking recovery for wrongful discharge. Black's Law Dictionary (Rev. 4th ed.) defines "mitigation of damages" as "a reduction of the amount of damages ... [because of] facts which show that the plaintiff's conceded cause of action does not entitle him to so large an amount as the showing on his side would otherwise justify...." (emphasis added). It is pointed out in 58 C.J.S., Mitigation, at p. 834 that mitigation is "[a] lessening to any extent...." (emphasis added) (See also 25 C.J.S., Damages, §§ 96-99). Clearly in this case the jury disregarded the mitigation requirement. Even if the plaintiff's claim of 27.4% increment annually to his maximum annual salary were deemed to be reasonable,
Shiffer v. Bd. of Ed. of Gilbraltar Sch. Dist., 393 Mich. 190, 224 N.W.2d 255, 258 (1974), (footnotes omitted) (emphasis in original), citing McCormick, Damages, § 33, p. 127. See also, TCP Industries, Inc. v. Uniroyal, Inc., 661 F.2d 542, 550 (6th Cir.1981), recognizing that the duty to mitigate is clear in Michigan.
We conclude that error was sufficiently assigned in this case to put the court on notice that a more sufficient mitigation of damages instruction was mandated, and that the failure adequately to instruct caused substantial prejudice. It was the court's duty under these circumstances to
The principle applied was well expressed by the court in Dahlgren v. United States, 553 F.2d 434, 440 (5th Cir.) reh'g denied, 557 F.2d 456 (1977):
We must remand this case for further proceedings in light of the error which infected the jury verdict for damages in this case, unless the district court by its own action, through its remittitur, corrected that error. As previously noted, the district court reduced what is recognized to be an obviously excessive verdict, producing for plaintiff an annual income much higher than any salary, including bonus, he had ever earned. Katch in his brief (at p. 33), said "the trial court in considering and ordering remittitur of a portion of the jury award properly viewed the evidence in the light most favorable to Katch, and computed the largest mathematically possible award justified by the evidence and instructions in this case." That action, however, Speidel contends, was entirely insufficient to cure the error, because it was an award based on incorrect instructions which bear on the obligation to reduce a lost earnings award by a proper mitigation factor. It was certainly plain error not to reduce an award for loss of earnings by what had already been earned by Katch prior to trial, and the trier of fact was not given the opportunity under proper instruction to consider also a reduction of the award by reasons of the mitigation aspect as to future earnings.
The Michigan law on the proper rate of discount to apply to a damage award to be received now (and to be invested at present investment rates) based upon the loss of prospective earnings to be paid in annual increments in the future is unclear. There appear to be two different decisions making reference to the proper "discount rate." Freeman v. Lanning Corp., 61 Mich.App. 527, 233 N.W.2d 68, 69 (1975), states that "Michigan law clearly requires that damages for future losses be reduced to
The trial court in the instant case submitted to the jury for its determination whether a 5% rate or a 9.5% rate
In any event, regardless of the effect of what we have deemed to be an erroneous instruction on mitigation of damages and application of what, in light of present economic reality, would seem to be an insufficient discount rate to apply, we are satisfied that the jury did not understand what the court meant by discounting "such future losses ... to the present cash value thereof" in making its award of $1,534,000.
Plaintiff testified that he had obtained various jobs in sales after termination from Speidel and had earned as much as $3,600 a month. (Jt.App. 563a). Not to apply some mitigation factor in light of Katch's unquestioned ability, and intent, to continue to work, and to carry out his mitigation of damage duty, was simply erroneous in effectuating an adequate remittitur in this case.
The Michigan law on mitigation in case of wrongful discharge involves reasonable efforts to obtain work of like nature, taking into account whether the replacement job is merely part-time, whether it involves substantially reduced pay, and whether the job conditions are comparable. Higgins v. Lawrence, 107 Mich.App. 178, 309 N.W.2d 194 (1981). In the instant case, Katch, after separation from Speidel, worked in several capacities, obtaining substantial compensation in the sales area, in consulting, and in management.
We have concluded that damages awarded, even after remittitur, in this case are excessive, and the trial judge abused his discretion in not reducing the award to a reasonable figure, based upon the competent evidence bearing upon Katch's compensation at the time of separation and Katch's reasonable future prospects, the net figure being discounted to present value. The district judge was correct in recognizing that the original jury award was without reasonable support in the evidence and/or reflected the jury's evident misunderstanding about discounting future income to a present value and mitigating damages. While excessiveness of a verdict is primarily a matter for the trial court and the judge's conscience on a motion for new trial, appellate courts, within a proper limited and narrow scope of review, may consider and alter the result where there has been an abuse of discretion and the result brings about manifest injustice. Century
Within the narrow appellate review of damages, particularly after a remittitur has been effected by the district court, we must decide whether the action of the district judge was a clear abuse of discretion. Further, we must decide whether the damages awarded are "clearly within the `maximum limit of reasonable range.'" Taylor, supra, at 149; Ehret, supra, at 285. See Princemont Constr. Corp. v. Smith, 433 F.2d 1217, 1221, n. 25 (D.C.Cir.1970). Another court has defined the appellant function as determining whether the remittitur reduces the award to the "highest amount which the jury could properly have awarded." Gorsalitz v. Olin Mathieson Chem. Corp., 429 F.2d 1033, 1047 (5th Cir.1970), cert. denied, 407 U.S. 921, 92 S.Ct. 2463, 32 L.Ed.2d 807 (1972), citing, 3 Barron & Holtzoff, Federal Practice and Procedure (Wright ed.), 1305.1, p. 376 (emphasis added). This same standard was applied by this court in modifying a district court damage award in Petition of U.S. Steel Corp., 479 F.2d 489, 501 (6th Cir.) cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973). See also, Flame Coal Co. v. U.M.W., 303 F.2d 39 (6th Cir.) cert. denied, 371 U.S. 891, 83 S.Ct. 186, 9 L.Ed.2d 125 (1962), where this court reduced a jury compensatory damage award by the amount of damages deemed merely speculative and conjectural. In summary, we conclude both the jury award of damages, and that established by the district court after remittitur, are clearly beyond the maximum limit of a reasonable range, and beyond the highest amount the jury (or the court) could properly have awarded.
Upon due consideration, we have concluded that Katch has failed to establish facts which would permit a reasonable jury to make an award any greater than $380,000. Invested at a reasonable rate of return, this would produce to the plaintiff (and his family) a return in the neighborhood of his maximum pay during his employment with Speidel, while leaving the principal untouched. As an alternative to accepting a reduction of the award to $380,000, plaintiff may opt for a new trial, with respect to damages only. See Flame Coal Co. v. United Mine Workers of America, supra; Botsford v. Ideal Trucking Co., 417 F.2d 681 (2d Cir.1969); Wicks v. Henken, 378 F.2d 395 (2d Cir.1967); Bankers Life & Cas. Co. v. Kirtley, 307 F.2d 418 (8th Cir.1962).
Accordingly, we remand this case to the district court with orders to proceed as directed above.