The opinion
WHITAKER, Judge
(concurring in part and dissenting in part).
This is a suit for pay by a Government ■employee who was illegally discharged from his position as a postal clerk on March 12, 1954, and was subsequently reinstated on September 10, 1956. The ■plaintiff’s position was a part-time night .job by which he supplemented the salary lie received for his regular employment with the city of Philadelphia and the ■state of Pennsylvania.
The sole question presented is the •amount plaintiff is entitled to recover. Plaintiff admits that during the period •of his illegal discharge he did not obtain, nor did he seek to obtain, additional night •employment in order to mitigate his damages against the Government. In the light of this admission, the majority ■opinion has denied plaintiff’s right to recover at all for the period after September 15, 1954. Recovery was allowed for the period March 12, 1954, to September 15, 1954, because during that period plaintiff was prosecuting his administrative appeal of his suspension and discharge, and, so, could not know, until a final decision on it, whether or not it would be necessary for him to seek other ■employment. Thé majority reasoned that during this périod the plaintiff was under no obligation to obtain other employment and, therefore, recoverywas allowed, but for this six months and three days’ period only.
The majority, I believe, is in error in limiting recovery tó this period. The failure to mitigate damages is not a legal defense to plaintiff’s cause of action. The duty to mitigate damages concerns, not plaintiff’s right of recovery, but the amount he may recover for defendant’s wrong.
Generally stated, the rule is that damages which the plaintiff might have avoided with reasonable effort, without undue risk, expense, or humiliation, have not been caused by the defendant, or need not have been caused, and, therefore, are not to be charged against it. 5 Wil-liston, Contracts, § 1353; Restatement, Contracts, § 336. As stated in comment (d) of section 336 of the Restatement of Contracts: “the law does not penalize his [e. g., a discharged employee] inaction; it merely does nothing to compensate him for the harm that a reasonable man in his place would have avoided.” See also Restatement, Agency, § 455. This I believe is the correct statement of the rule and it should be applied by the court in this case.
For these reasons, I would remand the case to a trial commissioner to take testimony on whether plaintiff, without undue risk or expense, could have obtained other employment, and, if so, the amount plaintiff might reasonably have earned if he had done so. Since it is plaintiff who must prove the extent of his damage, I believe the burden of proof should be on him to show that he could not have obtained other employment. If other employment could have been obtained, the plaintiff should show the compensation he might reasonably have earned and this amount should be deducted from the salary he would have earned if he had not been illegally discharged.