Gromacki v. Armour & Co.

• Decision Date: 22 March 1948
• Docket Number: No. 4957.,4957.
• Citation: 76 F. Supp. 752
• Parties: GROMACKI v. ARMOUR & CO.
• Court: U.S. District Court — Western District of Missouri

76 F. Supp. 752

GROMACKI v. ARMOUR & CO.

No. 4957.

District Court, W. D. Missouri, W. D.

March 22, 1948.

C. W. Prince, of Kansas City, Mo., for plaintiff.

Watson, Ess, Barnett, Whittaker & Marshall, of Kansas City, Mo., for defendant.

REEVES, District Judge.

The defendant has filed a motion (which under the new practice performs the office of a demurrer) to dismiss. The reason for the motion is briefly stated, "because the complaint fails to state a claim against the defendant upon which relief can be granted." To rule intelligently upon the motion it is necessary to examine the complaint to ascertain whether under any circumstances the plaintiff is entitled to the relief sought.

The action is for damages for alleged fraud and deceit. It is claimed by the plaintiff that he was employed by the defendant "as a workman in the box factory of its plant, operating a circular or rip saw." Later, to wit, in the year 1925, "it was represented to plaintiff by the boss of the department in which plaintiff worked, that * * * if he worked continuously for the company until he was 65 years of age, then he would be permitted to retire and receive from the company a pension sufficient to meet his living expenses." And, again, it is averred in the complaint, "That in the year 1942, plaintiff asked the foreman of his department to increase his pay or salary, but was refused, said foreman stating to plaintiff, who was then 60 years old, that if plaintiff would remain in the employ of defendant five more years and until he was 65 years old, that he would then be entitled to retire and receive a pension of about $80.00 a month." It was then alleged, "Plaintiff relied upon said representation, and because thereof, abandoned future efforts to obtain increased compensation for his services, or to obtain employment elsewhere." There were further averments "that plaintiff thereafter worked continuously for the defendant until October 10, 1945" at which time he was discharged. He says that he was then 64 years old, "able-bodied, and without physical disability." Plaintiff alleges "that the representations of the defendant above narrated were false in that defendant's pension plan or system did not cover the class of employees to which plaintiff belonged, that the representations and statements made with reference thereto, as above set forth, were false and fraudulent, and made for the purpose of inducing plaintiff to continue to work for the defendant at a compensation less than what he could otherwise have received elsewhere for his services. That plaintiff relied upon said representations, and so relying, continued to work until he was about 64 years old, when he was wrongfully discharged, * * *."

For the above alleged wrongful acts the plaintiff seeks both actual and punitive damages. Counsel for defendant in his brief says that the promises alleged to have been made were based upon a future contingency and therefore were not such fraud or deception relating to a present matter and such as to create a cause of action.

1. It is alleged by the plaintiff that in the course of his employment it was represented to him at one time by a "boss" and another time by a "foreman" of the defendant that if he continued his employment till he attained the age 65 years, he would receive a pension from the defendant. This was a representation of an alleged existing fact and was not in its nature a mere promise of something to occur in futuro. The plaintiff says that he relied on such representation and continued his employment in the expectation that he would be the beneficiary of a current subsisting arrangement or system. Such representations were untrue as it is alleged and were known to have been untrue, so plaintiff says, at the time they were made. This is sufficient to state a cause of action.

2. A serious question arises, however, whether the "boss" and "foreman" making such representations acted within the scope of their employment in practicing a claimed deception upon the plaintiff. The first representation was made in the year 1925 by the plaintiff's then-boss. That was approximately 22 years before suit was filed. The arrangement or system, if it existed, was necessarily a part of the contract of employment, and such representations could only be properly made by the agent who hired plaintiff.

The plaintiff...