Summary
In Webb, the employer essentially forced the employee to retire but awarded a retirement income "in consideration of his past relationship with the company."
Summary of this case from Williams v. WrightOpinion
42081.
ARGUED JUNE 9, 1966.
DECIDED JUNE 21, 1966.
Action on retirement agreement. Fulton Civil Court. Before Judge Williams.
Edenfield, Heyman Sizemore, Robert G. Young, for appellant.
Sutherland, Asbill Brennan, Barrett K. Hawkes, for appellee.
The trial court did not err in sustaining the defendant's general demurrer to the plaintiff's amended petition.
ARGUED JUNE 9, 1966 — DECIDED JUNE 21, 1966.
Mrs. Ola Mae Jones Webb as executrix of the estate of her late husband, Harold F. Webb, brought suit against the decedent's former employer, The Warren Company, Inc., to recover the sum of $12,000 which the defendant had allegedly agreed to pay the decedent in consideration of his voluntary retirement from the company. The amended petition alleged that under the terms of the retirement agreement the decedent was to be paid the amount of $500 per month for two years, beginning October 1, 1963, as set forth in a letter of September 6, 1963, from the executive vice-president of the defendant company to the decedent, a copy of such letter being set forth as Exhibit "A" to the petition; that the decedent accepted the defendant's offer on September 10, 1963, and voluntarily retired from the company as of that date; that such action constituted "the forfeiture and the voluntary giving up of a substantial position and employment relationship," and constituted consideration for the defendant's agreement to pay the stated retirement income; but that no payments as required under such agreement have been paid either to the decedent who died on September 10, 1963, or to the plaintiff as executrix of his estate.
The letter of September 6, 1963, stated as follows: "Dear Harold: Your contribution to the growth of The Warren Company has been huge. The Executive Committee has been concerned about your health for many months; it has concluded that your health is not good enough for you to withstand the rigors of the firing line. Therefore, convinced that you will be in better physical condition by being less active, the following resolution was adopted:
"Resolved, that in consideration of the efforts and contributions by Mr. H. F. Webb in building The Warren Company, Incorporated, over the years, a retirement income be made to Mr. Webb beginning after his retirement on October 1, 1963, and continuing for two years. The payment will be $500.00 per month for the two years. At the expiration of two years, the company will give consideration to further retirement income, the amount to be determined at that time.
"Further resolved, that an ordinary life insurance policy on the life of Mr. Webb be maintained by the company in the amount of $10,000.00 with the beneficiary being Mrs. H. F. Webb.
"In addition to the above compensation, certain Social Security benefits may be available to you now, if your health dictates retirement at this time.
"We should be pleased to discuss with you the possibility of your representing us as a sales agent in some territory desirable to you whenever your health permits, if you are interested in supplementing your income in this manner.
"You know that ours is a particularly competitive industry and that satisfactory profits are difficult to come by. In recent years, it has been impossible for us to raise prices, in spite of increased manufacturing costs. In fact, we have consistently lowered prices during the past two years. Under these circumstances we feel that the action of the Executive Committee is fair. It is our sincere hope that you also will think so."
The trial court sustained the defendant's general demurrer to the amended petition, and the appeal is from that judgment.
Contrary to the allegations of the petition that the decedent was given the option of remaining in the employment of the defendant company or of voluntarily retiring in consideration of the receipt of the stated retirement income, the letter of September 6, 1963, which was attached to the petition as an exhibit, clearly shows that the decedent was given no choice in the matter but that his employment was involuntarily terminated by the action of the defendant company's executive committee and that in consideration of his past relationship with the company he was awarded the stated retirement income. Since the contradictory allegations of the petition must yield to the attached exhibit ( Harris v. Ackerman, 88 Ga. App. 128 (1) ( 76 S.E.2d 132)), and since it was not shown in the petition that the decedent could not be summarily discharged by the defendant company without incurring liability therefor, it necessarily follows that the proffered retirement income was merely a gratuitous promise, made without consideration and having no binding effect on the defendant company. Davis Co. v. Morgan, 117 Ga. 504 ( 43 S.E. 732); Bell v. Johnson, 24 Ga. App. 541 ( 101 S.E. 709); Renney v. Kimberly, 211 Ga. 396 ( 86 S.E.2d 217).
Furthermore, even if the defendant's promise to pay the stated retirement income had been supported by a valuable consideration, it is our opinion that the defendant's obligation was owed to the decedent personally and would have been extinguished by his death. The agreement as set forth in the letter of September 6, 1963, clearly contemplated that the payment of retirement income was to be made during the lifetime of the decedent since it was provided that after the expiration of two years consideration would be given to further retirement income, the possibility of future re-employment was discussed, and specific arrangements were made for the benefit of the decedent's widow in the event of his death. These factors clearly distinguish this case from that of Ulmann v. Sunset-McKee Co., 221 F.2d 128, cited by the plaintiff in support of her contention that the decedent's right to the sum of $12,000 as retirement income was absolute and vested before his death.
The amended petition did not state a cause of action and the trial court did not err in dismissing the petition on general demurrer.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.