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Pellett v. Simpson Timber Co.

June 21, 1973

PELLETT, RESPONDENT,
v.
SIMPSON TIMBER COMPANY, APPELLANT



Appeal from Circuit Court, Multnomah County. Patrick E. Dooley, Judge.

Jonathan A. Ater, Portland, argued the cause for appellant. With him on the briefs were Lindsay, Nahstoll, Hart, Duncan, Dafoe & Krause, Portland.

Walter J. Cosgrave, Portland, argued the cause for respondent. With him on the brief were Cosgrave & Kester and Frank H. Lagesen, Portland.

In Banc. O'Connell, C.J.

O'connell

This is an action to recover damages resulting from defendant's alleged breach of an employment contract. The jury returned a verdict for plaintiff in the amount of $13,614.88. Defendant appeals.

Defendant Simpson Timber Company hired plaintiff in March of 1969 under a three-year contract. According to that agreement plaintiff's "assignment" was with Bosques E Industrial Madereras (BIMA), a Chilean company devoted to the production of alerce, a tree grown primarily in southern Chile. BIMA was partially owned by Simpson. On May 1, 1969, plaintiff reported with his family to Contao, the BIMA company town, and commenced work as "Woods Superintendent."

During 1970 defendant determined that its investment in BIMA was unsound, and in August of that year plaintiff and other North American employees were informed that an agency of the Chilean government would take over active management of BIMA. Plaintiff was requested and agreed to remain

in Contao through the logging season, until April of 1971.

Meanwhile, social and political unrest had spread to Contao following the election of Salvatore Allende as President of Chile. On or about September 10, 1970, plaintiff conversed by telephone with Furman Moseley, the President of BIMA and Vice President of Simpson, who had hired plaintiff. Testimony adduced at trial was conflicting as to what each party said. Plaintiff testified that Moseley, speaking with reference to plaintiff and his family, stated that "under the circumstances, I think it is wise if you all get out of there." Moseley, on the other hand, testified that plaintiff asked to leave Contao, and that he, Moseley, replied that plaintiff was free to leave if he felt in danger.

In early October of 1970, plaintiff left Contao and met with Moseley in Santiago. At that time Moseley gave plaintiff an additional brief assignment in South America, and they agreed to meet again in Seattle on November 3, 1970. In Seattle, Moseley informed plaintiff that defendant had no positions available for plaintiff. Moseley testified that it was subsequently agreed that plaintiff "would stay on Simpson's payroll until the thirty-first of March, 1971 or until such time as he found a job, whichever occurred earlier." Plaintiff was finally removed from defendant's payroll on March 31, 1971.

The factual issue in the case is whether plaintiff asked to be relieved of his contractual obligation or was willing to remain in Contao but was excused by Moseley from completing his assignment. It is defendant's contention that the jury was not given the opportunity to properly ...


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