-1- 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE HARRY W. BORDERS, d/b/a RISK MANAGEMENT ASSOCIATES v. RONNIE J. B. CROW, d/b/a RONNIE CROW INSURANCE SERVICE

A Direct Appeal from the Circuit Court for Davidson County No. 96C-3472 The Honorable Hamilton V. Gayden, Jr., Judge

No. M1999-00985-COA-R3-CV - Decided July 13, 2000

This is a suit by employee fo

r compensation al

legedly due after discharge under oral contract of emplo yment. Upon finding that the discharge was for cause, the jury nevertheless returned a verdict for the employee for

post-discharge compensation. On the employer’s appeal, we vacate that part of the judgment awarding post-discharge compensation.

Tenn.R.App.P. 3, Appeal as of Right; Judgment of the Circuit Court is Vacat ed and Remanded.
C RAWFORD , P.J., W.S., delivered the opinion of the court, in which F ARMER , J ., an d L ILLARD , J. , joined. Dennis L. Tomlin, Hendersonville, For Appellant Lee D. Anderson, Nashville, For Appellee
OPINION
The complaint of plaintiff, Harry W. Borders (Borders), filed September 23, 1996, alleges that in September of 1994, both plaintiff and defendant, Ro nnie J. B. Crow (Crow), are insurance brokers associated with

Libert y Insurance Agency, Inc., that Borders specialized in group health, cancer, disability, and h ospital insurance, and Crow handled primarily commercial property and casualty insurance. The complaint avers that on or about September 24, 199 4, Crow requested Borders to assist

Crow in handling the group health and other insurance programs for members of the Teamsters Local 327. Borders avers that Crow orally agreed to pay fifty percent of all the net commissions and fees earned by the defendant from the life, health, disability and related insurance business that Crow obtained from the Middle Tennessee Teamsters trust fund a ccoun t. The complaint further avers that

in reliance upon t

he oral agreeme

nt, plaintiff spent many days working
on the insurance needs, such as retaining a re-insurance company, a third party insurance-2-

administrator, obtaining various insurance rates from companies, structuring the insurance plan s an d assisting Crow in convincing the administrator of the Teamsters trust and the employer companies to allow Crow to writ

e and administer th

e insurance pro

gram.
The complaint further avers that in about January, 1995, the Te amsters 32 7 and Middle Tennessee Teamsters Trust agreed for Crow to provide the group insurance. Later on, two employer companies,who had collectiv e bargaining agr

eements with the un

ion, agreed to all

ow Cr ow to provide for employees’ insurance needs, specifically short and long term disability and cancer insurance. Borders alleges that a short time after Crow started handling t he trust fund insurance business, he “maliciously andfraudulently” notified Borders that Borders would only receive a onethird percent of the net commissions and fees earned instead of the fifty percent that the y ha d previously

agreed upon, and that Crow “maliciously and fraudulently told Borders that he could take one-thirdor leave it, or words to that effect.” The complaint further avers that the first policy period
was from March 1, 1995 through February 29, 1996. Borde rs avers that on or about October 9, 1995, Crow “maliciously a nd fraudulently”

advised Borders t

hat he was cance

lling th eir cont ract effective September 30, 1995, and that Borders would be paid through that date on the one-third basis previously statedto him. The complaint then related various commissions and fees obtained by Crow in amounts that should have beenpaid to Borders under the fifty percent basis, and on the one-third basis. The complaint seeks commissions earned prior to termination, and the complaint as amended seek

s commissions and fe

es as follows:
The plaintiff

avers upon information and belief that defendant Crow because of the plaintiff’s work will receive fees and commissions from various insur ance policies fr

om March 1, 1995 to May 1, 2000 amounting to approximately $276,674.75 and that the plaintiff is entitled to fifty (50%) of that amount totaling $149,301.85 plus interest and reasonable attorney f ees. Th ese figures are assumi ng the group life and health partially s

elf-funding poli

c y remain constant throughou t the total period of the defendant’s cont ract. If so, the balance due the plaintiff is $149,301.85 plu s interest and reasonable attorney fees. Had t he def endant continued to pay the plaintiff on a one -third (33.3%) ba

sis the plaintiff wo

uld have a balancedue him amounting to $ 110,440.67 plus inte rest and reasonable atto

rney fees.

* * *

It is anticipated tha

t d e fendant Crow will k eep the said insurance coverage from March1, 1995 to May 1, 2000. The complaint also

seeks punitive dam

ages and attorne

y fees.
The defendant’s an

swer denies th

e materia l allegations of the complaint and joins issue thereon. Defendant further avers that plaintiff was terminated from his employment for cause as of1 The parties agree that the formulation of the insurance arrangement s to ok place in early 1995. Crow testified that he had a writtencontract with the Trust Fund but had lost it. However, he did intro du ce as evidence a contract between the Trust Fund and Crow dated May 1, 1996 and to terminate May 1, 2000.
-3- August 1, 1995.
On May 5, 1999, the tri

al court entere

d an order grant

ing partial summar

y judgment t

o defendant “as to the causes of action for fraud, willful misrepresentation and deceit, and any other
cause of action relating to fraudulent conduct.” The order further p

rovided: “that this

action shall proceed as a contract claim with no claim for punitive damages or attorney’s fees.” Although the testimony in the record is sketchy as to details and terms of a contract, the parties concede that an oral employment contract was made between the parties whereby Borde rs would assist Crow in formu

lating and servic

ing the group heal

th insurance program for members of Teamsters Local 327 (herein referred to as “Tea msters” o r “Teamsters Trust”). The Teamsters participate

in an ERISA health insurance trust known as Middle Tennessee Teamster’s Trust Fund. At the time of the contrac t, both parties were in the insurance business, and both had an office at Liberty Insurance Agency in Nashville.
The Teamsters’ group health insurance account was acquired by Crow and became effective
on March 1, 1995 and apparently expired April 30, 1996. 1 Borders found a third party

administrator for the program. Sometime between September 29, 1995 and October 3 or 4, 1995, Borders learned that he was being terminated by Crow. Borders has not received any monies from Crow since that time. In September of 1996, Borders brought an action against Crow.
A jury trial was held May 10 -12, 1999. Ronald Hebert, owner of Liberty Insurance Agency, testified on behalf of Borde rs. Hebert testif

ied that Borders is

an expert in life and health insurance andthat Crow primaril

y wrote property casualty insurance. Hebert knew that Borders was working
on the Teamsters’ account for Crow. Hebert believed that Crow had a general knowle

dge of health insurance, but did not have expertise equal to that of Borders. Borders testified that Crow approached him while they were both in business with

Liberty InsuranceAgency and asked him to have lunch. Borders agreed, and during the lunch meeting, Crow stated that he had an opportunity to write the partially self-funded group insurance program for the Teamsters Tr

ust. Borders testified

that Crow asked him

to look at the opportun

ity and tell him what could be done . According to Bor ders, he a dvised Crow that there was quite a bit of research to be done and told h

im w hat do cumentation he would need from the Teamsters. Crow providedall the documentation from his client, the Teamsters, and Borders deter mine d that the account would be profitab

le

. Borders prepar

ed a quote and inte

rviewed two third

party administrators,

one of which was Adminitron. Adminitron acquired a reinsurance c

arrier to provide
a quote on the partia

l self-funded gr

oup insurance. Bo

rders s ta ted that he prepared a proposal for presentation to the Teamsters in December of 1994, which demonstrated what their current program2 The trial court in structed the jury

that the agreeme

nt was one-third a

nd not one-half

of the commissions and fees. This is quite un usual i n light of the dispute d testimony on this poin t. However, Borders has not presented any issue concerning this instruction.
-4- didand provided information on two proposed plans that they could select for the Trust. Borders conceded at trial that

the Teamsters Tr

ust account was pr

ocured by Crow an

d was Crow’s acc

ount.
Borders testified that the

Teamsters Trust

plan selected had

a specific stop loss premium of $21.08 per insured union member, per month , and an aggrega

te stop losspremium of 92 cents per insuredunion member, per month. The average life premium was $4.01 per insured union member, per month. The a gent’ s commissions and fees totaled approximately $5.00 per insured union member, per month. The administrative cost of t he plan was $21.13 per month, representing the amount paid to the third pa

rty administrator for

administering the p

rogram and manag

ing the claims. The proposal was entered as Exhibit No. 1.

In setting up the group

health insurance

account, Border

st ated t hat he and Crow put on several meetings to present applications to the member companies. The applications were filled out by the individuals, an

d Borders an d/or Crow were present to answer questions. From the applications they would prepare a report to be sent to

the employer to en

able them to setup p

ayroll deductions to pay the employee s’ premiums. Borde

rs testified that h

e alsodevel oped a cancer program and disability program for the Teamsters Trust.

B o rders presented copies of checks that he received from Crow and testified that they represented

one-third of the commissions and fees earned from the Teamsters’ account

through July 31, 1995. Borders received five checks totaling $6,539.17, copies of which were admitted at trial
as exhibits: April 2, 1995 in amount of $542.35; June 17, 1995 in the amount of $1,116.41; July 7, 1995 in the amount of 1,339.54; August 22, 1995, in the amount of 1 ,825.57; and September 14, 1995, in the amount of $1,767.43. Borders explained that there was a two month lag between the time that the commissions were earned and when he received his por tion. Borders rec

eived the last check from Crow on September 14, 1995 in the amount of $1,767.43, representing his share of the premiums generated during July 1995. He was never paid for his work in the months of Augu

st and September 1995.
Borders testified that Crow originally agreed to compensate him with one-half of the commissions and fees earned from this business. Later, Crow unilaterally changed the agreement
so that Borders would receive only a one-third share. 2 Borders claimed to have obtained all of the insurance companies to write the necessary insurance polices and to have located

an administrator for the group life and health program. Borders claimed that whenCrow began paying him on a onethird basis, instead of t

he one-half bas

is verbally agreed to, he told Borders to “take it or leave it.” Borders presented as Exhibit No. 5 copies of compensation statements paid to Crow by Adminitron, the third party administrator, revealing that there were two checks every month from A dminitron to Crow, one for commissions and one for fees.-5-

Borders also present ed a 1 995 IRS 1099 miscella neous form from Ad

minitron, Inc., to Ronnie Crow Insurance in the amount of $15,552.46, and a 1996 IRS 1 099 miscellaneous form from Adminitron to Crow in

the amount of $10,872.98, representing reinsurance commissions
earn edin those years. Bor ders presented a

1995 IRS 1099 miscell

aneous form from the Middl e Tennessee Teamsters Trust Fundto Ronnie Crow in the amount of $18,540.29, and a 1996 IRS 1099 miscellaneous form in the amount of 31,8 63.78 or 21,863.78 (the first digit is not legible), representing administrative fees and agent fees for the group insurance program and life insurance program earned during those years. Borders presented a 1995 IRS 1099 miscellaneous form from National Travelers Life

Com pany to Ronnie J. Cro w in the amount of $7 ,594.72, and a 1996 IRS 1099 miscellaneous form in the amount of $14,532.49, representingcommissions earned and paid for the cancer coverage provided to members who were covere d.
Usin g Crow’s IRS 1099 forms, Borders produced Exhibit 18, a computation of damage s representing one-half and one-third of t he commissions and f

ees earned on th

e Teamsters’ ac

count. Borders’ calculations indicate that in September

of 1995, Crow received commissions of $1,920.85 andfees of $3,109.60 totaling $5,030.45. Border states that he used the figure from September of 1995 in his d amage calculat ions, because tha

t was the last month th

at he was involved

in this business. Borders calculated his damages by taking the $5,030.45 figure, representing total fees and
com missions for group life and health insurance and for disability and cancer insurance, an d multiplying by 55, the number of months left under th

e contract with th

e Teamsters that

ran toMay 1, 2000. Borders calculated the gross projected total commissions and fees paid to Crow based on the participation as of

September 1995 at $276,674.75. Borders represented that the actual records indicate that Crow received $29,502.93 from March 1, 1995 to October 1, 1995. The total actual and projected group life and he

alth plan commission

s and fees f

or the whole contract was therefore $306,177.68. Borders testified that based on the 1099 forms from National Travelers Life Insurance Co., the cancer insurance carrier, and Phoenix Home Life Insurance, the

disability insurance carrier, Crow received $31,900.00 over a two-year period. However, Borders was unsure if this coverage
was still offered, so i

ncluded no projec

ted commission amoun

t from National Tr

avele rs Life or Phoenix Home Life in his ca

lculations. Border

s testifies that ac

cording to

his figures, Crow’s total commissions and fees from all sources, the group life and health, the administrative fees, the cancer coverage, and the disability coverage, would total $338,072.39 over the whole period of the contract withthe T eamsters Trust. Since Borders had been paid $6,539.17, he claimed that his total commission, figured at one half should be $162,000.00, and figured at one-third should be $106,151.00. Borders pointed ou t that his calculat

ions included no co

mmissions due him for

people that were added to the plan after his termination.
Crow disputed the fact that he agreed to pay Borders one-half of the commissions and fees andtestified that the agreement was to pay Borders one-third of the commissions and fees. Crow acknowledged that with some help from Borders he gathered the necessary information needed to generate a proposal , which was presented to the Teamsters Trust. Crow points out that the Teamsters Trust was at all times his client.
Crow testified that he h

ad complaints fro

m the tr ustees of the Teamsters Trust regarding Borders’ acquisition of

a fax machine and his interfering in the trust’s business. He also noted that-6-

the Trust complained about Borders’s misrepresentation of coverage under a disability policy.
Crow testified that he had no choice but to terminate Borders because he had been given an ultimatum by members of the Teamster’s Trust to get rid of Borders or they would get r id of him. Crow stated he terminated Borders for cause in September of 1995 and that he owed him no more commissions and fees.
Crow stated that he agreed to pay Borders one- third on the group health insurance; however, Borders’s main responsibilities were for thedisability and the cancer insurance. Crow discontinued the disability and canc er cove rage after he terminated Borders and went back to his original position, agent and consultant for the Trust. Crow testified that he continues his duties as agent and consultant

on a d ai ly basis, and he continues to be paid a monthly commission by the Teamsters Trust.
Crow presented the testimony of Dave Hodgin, chairman of t he board of the Mid dle Tennessee Teamsters Trust, who stated that he had contacted Cr

ow in late 1994 or 19

95 upon his lawyer’s advice that the tr ust needed a representative

agent. Hodgin testified that he did not meet B orders until about nine months to a year after he contacted Crow. Crow introduced Bord ers t o Hodgin when Hodgin expre

ssed a need for c

ancer and disab

ility insurance. H

odgin testified that

in
a presentation, Borders told employees of two companies represented by the Teamsters Trust that the disability and cancer insurance would be i ntegrated with th e workman’s comp ensation payments

. Problems arose when a worker was hurt on the job and was told by th e insurance comp

any that their policy did not pay when he was off work receiving worker’s compensation, in other words, was not
an integrated polic

y. Hodgin

contacted Crow about the problem he perceived had been caused by Borders, and Crow was able to persuade theinsurer to reissue the policies removing the exclusion. Hodgin further testified t o another incid ent in which Borders allegedly ordered a new fax machine for the Teamsters Trust office that had not been approved. Hodgin stated that Borders was causing problems, and that he told Crow that “Harry had to go.” Hodgin stated that at that point he would have terminated

the affiliation wi

th Crow. Hodgin test

ified that the Tea

ms ters T rust filed
a c ompl aint alleging theft against Adminitron, the third party administrator obtained by Borders.
Crow presented the te

stimony of Jimmy

Ray White, a business agent for the Teamsters and
a Trustee of the Middle Te nness ee Trust. White testified that he was present during one of the presentations made by Borders, and that Borders represented that

the disability insurance would be integratedwith the worker’s compensation. White testified that he advised Crow in early 1995 that he would be terminate

d if Borders was no

t terminated. Whit

e claimed that his r

easons inclu

de d Borders’s misstatem e nts regarding the integrated disability insurance, Borders’ ordering office equipment without authorization, and his opinion that Borders was obnoxious.
After the presentation of proof, the judge found that there was an agreement be tween the parties that Borders would receive one-third of the c ommissions and fees, not one-half, and that Borders was entitled to one-third of commissions and fees up until the time that he was discharged in October of 1995.

The jury was so

instructed. The judge also instructed the jury that theywere-7-

to determine if Borders was discharged for cause and to determine if Borders is entitled to funds after discharge. In ins

tructing the jury,

the trial court sta

ted in pertinent pa

rt:
Now , l adies and gentlemen of the jury, a contract for employment

for an employee f

or an indefinite te

rm is a c ontract at will and it can be term

inated by eith

er party at

any time without
cause. It is true, however, that when a person is workin

g at will and is a sales person, and is on what is known as what is called residual commissions, may in some cases recovered all or a portion of residual commissions alleged to be owed after the employment. In determining the intention o f the parties, one con sideration is circumstances of the parties at the time the contract was formed. An unexpressed

obligation may be implied whereintended. The cou rse of conduct is the strongest evidenc e of the original intent. But you may also consider

such things, as I said before, the words of the oral contract, the c ustom of the business, the relationship of the two parties, and also to the cust omer involved in thi

s lawsuit, who procured the original business, who was responsible for t he business, who served the acc

ount and what t

ime and what was the subject of serving the account in rel ation t o who got the business. In other words, you may comparethe act of serving the account, who got the busi ness relationship between these two people and the Teamsters Trust. You may consider the relationship betw een Teamsters T

rust andthe two parti es; you may consider malfeasance or negligence; you may consider other misconduct and you may consider competence.

* * * * * * [I]f you find that the plaintiff was owed money before he was terminated, he’s entitled to those damages, period. As a matter of law he’s entitled to those damage s up unt il the time you find he was discharged

and whether or no

t he was actuall

y paid f or the date of discharge, that is in dispute, as well as the date of discharge. As

to w hether or not he’s entitled to any residual commissions, the tota l amount claimed or any portion thereof, or none thereof

, is entirely

up to you.
The record indicates that during deliberation, the jury asked two questions. The first question
was: “[c]an we have

a legal definition of termination for cause as defined under the state statute?” The trial judge respo

nded “[t]here i

s no applicable de

fin it ion for termination of cause. There are many cases that decide whether a person was discharged or not discharged [for cause]....in this case, the termination for cause is a question for you to de c ide. There is no definitive guideline.” The second question wa

s:3 Crow does not take issue with this part o

f the judgment.
-8- [i]f we find that the plaintiff was term inated for cause , can we still award commissions and fees from the time he was terminated. If so, is there any set amount or must we still award commissions and fees from the time he was terminated. I f so, is there any set amount or must we use a collective best judgment. The trial judge re

sponded: [y]es, you still may award the plaintiff if you collect ively and unanimously feel h

e is entitled to comm

issions and fees.

Likewise, you may also determine that he is not entitle d to fee s and commissions. But that decision must also be unanimous. If you decide to

award the plaintiff commissions and fees, it’s totally up to yo u ...it’s not necessarily a fixed sum, but a sum you collectively believe to be fair under the circumstances of the case.
After deliberation, th

e jury found in favor of Borders in the amount of $6,000.00 for commissions and interest not paid before his termination. 3 In addition, the jury found that Borders
was dismissed for cause, but was dueone-third commissi ons and fees in

the amount of $92,133.00 on the group life and health plan for the time period of October 1, 1995 to May 1, 2000. The jury verdict totaled $

98,133.00 in favor

of Borders. Thereafter, Crow filed a motion for a judgment notwithst

anding the verdic

t, a new trial,

or a suggestion of remittitur. On July 15, 1999, the trial court ordered “that the verdict to the jury be andis hereby reduced from $9 8,1 33.00 to $30,000.00, and if the plaintif

f declines to acc

ept this remittitur, a new trial shall be allowed.” Borders filed a notice stating that “he will reluctantly accept the suggestion of remittitur offered by the court if the defendant fails to appeal this case; otherwise, the plaintiff will also appeal so that the jury verdict will be reinstated.” Both par ties filed notices of appeal on August 1 6, 1999. On Octobe r 13, 1999, this

Court entered an order stating that an order suggesting remittitur is provisional only and is not self-executing. Therefore, even thou gh the plaintiff had filed a qualified notice of acceptance as an acceptance unde r protest, the trial court had notyet entered an o

rder unconditi

onall y reducing the amount of the judgment, and judgment was notfinal. The trial court entered a final ord er on Nov ember 11, 1999 denying Crow’s motion for judgmentnotwithstanding the verdict or for a new trial but finding that the $98,133.00 jury verdict
was outside the range of reasonableness, and thereby reduced the jury verdict from $98,13 3.0 0 to $30,000.00 plus the costs. Both parties have appealed. The issues raised on appeal by appellant Borders are, as stated in his brief:

I Did

the Trial Court err in g ra nting a remittitur from $98,133.00 to $30,000.00?-9- II Should

the Court of Appealsreinstate the verdict of the jury and award damages for the D

efendant’s app

eal? In addition appellee Crow raises one issue on appeal, as stated in his brief:

III The trial court made three, key factual findings: (a)that Mr. Borders was Mr. Crow’s employee at will who, (b) was terminated for cause and who, ( c) did not procure cer

tain business

in dispute. Given th

ese findings, did the trial court err a s a matter of law in

failing to ord era complete remittitur of jury’s verdict that Mr. Crow
owes Mr. Borders post-term i nation commission from the disputed business? We perceive the dispositive issue to be whether the trial court erred in denying the motion for judgment notwiths tan ding the verdict as to the claim for compensation after the date of termination. Or to put it another way in the part icular stature of this case, is there any material evidence to support the jury verdict for post-discharge compensation.
The rules for considering post-trial motion for a judgment notwithstand ing the v erdict are well known.
A post-trial motion for the entry o f judgment in accordance

witha motion for a dire

cted verdict mad

e durin g t he trial must be gaugedby the usual rules r elati ng to directed verdicts. Those rules require that the trial judge, and the appellate courts, take the strongest legitimate view of the evidence in f avor of the opponent of the motion, allow all reasonable inferences in his or her favor,discard all countervailing evid ence, and deny the motion where there is any doubtas to the conclusio

ns to be drawn fro

m the whole

evidence. A verdict should not be directed during, or af ter, trial except where a reasonable mind could draw but one conclusion.
Holmes v. Wilson , 551 S.W.2d 682, 685 (1977).
While the record does

reflect that the

re was an agree

ment between the

parties for Borde

rs to assist Crow in formulating and servicing the insurance needs of the Trust and was to be either at the rate of fifty percent

of Crow’s fees and commissions or a one-third of Crow’s fees and commissions for this service, the record

is void of any evidence of any other terms of the contract. The trial court instructedthe jury that the contract between Borders and Crow was a contract terminable at will, and that it could be terminated by either party any time with or without cause. It is undisputed that the business itself was procured by Crow, and the evidenc e reflec ts that Borders wa s hired for his expertise in servicing and a

dmin is tration of the requirements of Crow’s contract with the Trust Fund. We ne ed not consider whether in a contract terminable at will Borders would be entitled t o compensation from and after h is discharge, bec

ause in th e present c ase the jury determined that-10-

Borders was discharged for cause.

In Nelson Trabue, Inc. v . Professional Manage

ment-Aut omotive, Inc. , 589 S.W.2d 661 (Tenn. 1 97 9), the question inv olved was whethe

r a corporate ma

nager employee

is entitled to compensation for services for the full term of its contract, even though there was a discharge fo r cause by the emplo

yer. Id. at 661. In holding that the corporate manager was not entitled to the balance of the annual compensation through the term of the contract, the Court said:

The general rules with regard to contracts of employment are wellsettled. They are stated in the case of Litt le v. Fed

eral Con tainerCorp. , 61 Tenn. App. 26, 452 S.W.2d 875 (1969) a s follows: “Generally, a contract of employment for an indefinite term is a contract at will and may be terminatedby either party. [citations omitted]. Whereas,a contra ct fo r a definite term may not be terminatedbefore t

h e end of the term, except for
causeor by mutual agreement, unless the right to do
so is reserved in t

he contract. 56 C.J.S. Master and Servant § 30, p. 411.
“An employer has the right to discharge an employee at any time for just cause. The fact the emplo yerbe ars with the incompetency o r irregularities of su ch empl oyee for a time does not estop the employer from discharging t h e employee for such incompetency if it continues.” 61 Tenn. App. at 31-32, 452 S.W.2d at 877-78.

In the earlier case of Jackson v. The Tex as Company , 10 Tenn.App. 235, 244 (1929), it was held that even where

an agency is for a definite term, the principal has a right to revoke it before the expiration of the term without incurring liability for dama ges because of the failure of the

agent faithfully t

o perform his expr

ess or implied undertakings.
Id. at 663. If, as held in Nelson Trabue , an employee in a contract for a definite term is

not entitled to post-discharge compensation if discharged for cause, it necessarily follows that in a contract terminable

at will, a discharge for cause precludes post-discharge damages. Although the trial court incorrectly

instructed the jury in this regard , neith er party has raised the incorrect jury instruction as an issue for review.-11-

Accordingly, we find that there is no materialevidence to support the jury verdict awarding plaintiff damages for post-discharge compensation. Therefore, that part of the judgment awarding post-discharge damages is vacated, and the case is remanded to the trial court for entry of a judgment
on the jury verdict in the amou nt of $6,00 0.00 for compensation due to the date of termination. Costs of the appeal are assessed on e-half to appellant, Harry Borders, and one-half to appellee, Ronnie J. B. Crow.