O'Brien v. Puget Sound Plywood, Inc.

Appellant petitions this court to strike from the majority opinion the following language:

"Charles I. Reberger, a former president of the respondent, and its witness, testified that Morisette had stated in his presence at a committee meeting that he `had three jobs . . . offered him that would pay him three times as much money as he was making there . . . but he was not going to take any of those as he was going to prove that he had a contract.'"

or, in the alternative, if the language quoted be retained in the majority opinion, that we expressly declare we have overruled, giving our reason therefor, Hansen v. Columbia Breweries, Inc.,12 Wash. 2d 554, 122 P.2d 489.

The petition should be granted or the cause should be reheard by this court and the judgment reversed.

It is insisted in the dissenting opinion that there was no evidence contrary to the evidence adduced by appellant of the damages sustained, and that there was an entire absence of facts or circumstances admitted or proved which even tended to establish lack of diligence upon the part of Morisette in seeking other employment.

The contract on which recovery is sought was executed February 18, 1942. The contract provided that, at the expiration of three years (February 18, 1945), the parties would mutually agree on the compensation to be paid thereafter. The conversation upon which the majority opinion is bottomed could not have been later than January or February, 1943, at which time Reberger was "appointed on a committee to discuss with the Morisette boys their situation there." (See p. 103 of statement of facts.) The Morisette brothers after that discussion with the committee refused to consent to any change in their contract. March 22, 1943, a month or so subsequent to the discussion, respondent mailed to the two brothers a notice of termination of the contract as of May 1, 1943. The Morisette brothers notified respondent in writing of their refusal to accede to respondent's demand and stated that, if respondent insisted upon such dismissal, respondent would be held liable in damage. On May 1, 1943, the two brothers left respondent's employ.

One unfamiliar with the record in the case at bar would assume that Reberger's testimony was an admission against interest made by Morisette after the termination of the contract. If the alleged statement had been made after termination of the contract, Reberger's testimony would have been admissible. It is clear that the conversation was at least two months prior to respondent's cancellation of the contract. (See pp. 103-106, statement of facts.)

There is no evidence, nor reasonable inference from evidence, that Morisette failed to exercise reasonable diligence in seeking employment after he was discharged by respondent. He was under no obligation to mitigate damages by seeking employment substantially different from that covered by his contract, and he was not required to depart from the locality covered by his contract and seek employment in some other area. There is no evidence that Morisette was offered any position after termination of his contract with respondent.

"It is true, as shown by the record, that appellant's agent did secure an offer of a position for respondent with an advertising agency, which was refused by respondent. However, the offer was made previous to the discharge, and there is no evidence that the position was open after appellant had discharged respondent.

"At the time the position was offered to respondent, he was working for appellant and had no notice that he was to be discharged. At that time he had suffered no damage because of any action on the part of appellant, hence he was under no duty to accept or attempt to secure other employment." Hansen v.Columbia Breweries, Inc., 12 Wash. 2d 554, 122 P.2d 489.

Had this court more carefully read the record and followed, as it should, the rule enunciated in Hansen v. Columbia Breweries,Inc., supra, it would not have disregarded the following argument in appellant's reply brief and held that Morisette was under any duty to accept or attempt to obtain other employment prior to termination of his contract with respondent:

"We further wish to controvert the statement on page 33 that respondent defended among other things on the ground that the Morisette brothers `had not fulfilled their duty to mitigate the damages.' This statement is incorrect. Neither by pleading or proof was any such evidence offered. Apparently the basis for the contention was the testimony of Reiberger, a former president of respondent, and one Alskog, secretary for the respondent, whose testimony is referred to on page 38. Reiberger testified that two or three months before the discharge of these two brothers that he was on a committee which sought to induce them to modify their contract and that Charles Morisette then stated to him that he had three offers for jobs which would pay him $1,000.00 per month (R.S.F. pp. 103-106). Alskog testified that sometime before the termination of this contract Al Morisette stated to him that he could do better outside than at the plant, and that Charles Morisette said that he could do just as well (R.S.F. p. 118).

"It will be seen that both of these statements, if they were ever uttered, simply related to the optimistic views which the two brothers had as to their ability to secure other employment should their contract be terminated. Certainly this was no evidence that when they were subsequently discharged, then because they did not secure the positions which they had previously thought they could secure, that they therefore failed to mitigate their damage. The materiality of this evidence is completely answered by the decision of this court in Hansen vs.Columbia Breweries, 12 Wash. 2d 554, 122 P.2d 489, where in the defense of an action for a breach of a contract of employment the defendant sought to introduce evidence showing that, previous to the servant's discharge, the defendant had secured and offered to the servant other employment of a similar character which had been by the servant refused. The court held this evidence immaterial, stating:

"`At the time the position was offered to respondent, he was working for appellant and had no notice that he was to be discharged. At that time he had suffered no damage because of any action on the part of appellant, hence he was under no duty to accept or attempt to secure other employment.'

"Here there is no evidence that there were any such positions offered to the brothers after they were discharged, or indeed that they had ever been offered to them before the date of the discharge, as was the situation in the Hansen case. TheHansen case distinctly establishes the rule of law that there is no duty upon the servant to mitigate damage until his contract of employment has been terminated. This seems clear, since there must first be damages before the question of mitigation can arise."

A rehearing should be granted.

SIMPSON, J., concurs with MILLARD, J.