First National Pictures Distributing Corp. v. Seawell

171 S.E. 354, 205 N.C. 359, 1933 N.C. LEXIS 558

• Court: Supreme Court of North Carolina
• Decided: November 1, 1933
• Status: Published

Opinion

Brogden, J.

In suits based upon breach of contract, upon which party does the law impose the burden of offering evidence tending to show mitigation of damages?

A jury trial having been waived in the county court, the judge thereof found the facts and pronounced judgment thereon. There is evidence to support such findings, and consequently they are conclusive upon appeal to the Supreme Court. Caldwell County v. George, 176 N. C., 602, 97 S. E., 507; Mfg. Co. v. Lumber Co., 178 N. C., 571, 101 S. E., 214.

Tbe law commands that a person injured by tbe wrongful and negligent act of another is required to use ordinary care and prudence to protect himself from loss, or, as sometimes stated in the decisions, to minimize the loss. Smith v. Lumber Co., 142 N. C., 26, 54 S. E., 788; Advertising Co. v. Warehouse Co., 186 N. C., 197, 119 S. E., 196; Mills v. McRae, 187 N. C., 707, 122 S. E., 762; Gibbs v. Tel. Co., 196 N. C., 516, 146 S. E., 209. It has also been held that the burden is upon the party committing the injury to offer evidence in mitigation of damages. A succinct statement of the principle is to be found in Gibbs v. Tel. Co., 196 N. C., 516, as follows: “In an action for tort committed or breach of contract without excuse, it is a well settled rule of law that the party who is wronged is required to use due care to minimize the loss. . . . The burden is on defendant of showing mitigation of damages.” See Monger v. Lutterloh, 195 N. C., 274, 142 S. E., 12. Therefore, while the duty is imposed upon the injured party to use ordinary care and prudence to minimize his damages, nevertheless the burden is upon the injuring party to offer evidence tending to show such breach of duty or failure to exercise the requisite degree of care and prudence to reduce and minimize the loss complained of.

Reversed.