duty not only to obtain alternative employment which he is capable of performing, but also to prepare himself educationally for a job which he is not capable of performing at the time of his injury. Nor do we feel that such a rule is appropriate, especially in a case such as this where the plaintiff has been out of school for approximately thirty years and the amount of time that it would take him to complete the necessary schooling would be extensive. Accordingly, we conclude that plaintiff has no duty to obtain employment as a checker.
Finally, we are presented with the issue of the amount of plaintiff's loss of earnings for the years 1968 and 1969. After plaintiff was injured early in 1968, he returned to work with Northern Metal Company on several occasions. His W-2 forms for 1968 and 1969 show combined earnings of $22,087. Defendants contend that plaintiff's loss of earnings for those years should be the amount of his regular salary before the accident reduced by the amount which he actually earned. Plaintiff, however, contends that his loss should not be reduced by this $22,000 figure. While he does not specify the reason for this contention, it appears from the elicited testimony to be that, because plaintiff was unable to perform all of his prior duties when he returned to work, the money paid to him by his employer was actually a gift and therefore should not be reduced from the amount of his recovery.
Under both federal and Pennsylvania law a gratuitous payment of wages by plaintiff's employer would not bar his right to recover for the loss of those wages. Hartnett v. Reiss Steamship Company, 421 F.2d 1011 (2nd Cir. 1970), cert. den. Grain Handling Co. v. Hartnett, 400 U.S. 852, 91 S. Ct. 49, 27 L. Ed. 2d 90; Steeves v. United States, 294 F. Supp. 446 (D.C.S.C. 1968); Layman v. Doernte, 405 Pa. 355, 175 A. 2d 530 (1961). We conclude, however, from the facts of the instant case, that the salary paid to plaintiff after his accident was not a gift but rather compensation for his services. Consequently he may not recover this amount from defendants.
Plaintiff continued to work after his accident, and although his employment was interrupted by periods of hospitalization and treatment, he did not leave his position permanently until September, 1969, some nineteen months after the accident. Of his 1968-1969 income of $22,000, approximately $20,000 is attributable to the period after the accident. The length of time which plaintiff remained with Northern Metal Company after the accident and the large amount of income which he received indicate that the money was not a gift. We cannot conceive of plaintiff's employer's retaining plaintiff on its payroll for over a year-and-a-half and paying him approximately $20,000 as a mere gratuity. Moreover, the fact that plaintiff was not paid his salary at all times subsequent to his accident but only at those times when he in fact worked further supports the conclusion that he was being compensated for his services. Finally, plaintiff was discharged in November, 1969, on the basis of a medical report which stated that he was unable to perform the physical activities required of his position. It appears, therefore, that until that time plaintiff's employer was satisfied that plaintiff was sufficiently handling his job and was not being retained as a gesture of charity.
Plaintiff has also made reference to a $2,000 bonus which was paid him in December, 1968. Plaintiff had received a bonus each year since 1959, and in the absence of a showing that this bonus was significantly larger than that paid him during the years immediately preceding the accident we cannot conclude that it was anything more than a traditional compensation for services.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over the parties and of the subject matter of this action.
2. Liability has been admitted by defendant United States of America.
3. Plaintiff is not under a duty to submit to further surgery.
4. Plaintiff is not under a duty to seek employment as a checker on the waterfront.
5. The income which plaintiff received from his employer following his accident was compensation for his services and is not a proper source of recovery.
6. Judgment is entered in favor of plaintiff Charles Joseph McGinley and against defendant United States of America in the amount of $355,200.