Bruner v. Mercantile Nat. Bank

• Decision Date: 08 May 1970
• Docket Number: No. 17419,17419
• Citation: 455 S.W.2d 323
• Parties: Harold R. BRUNER et al., Appellants, v. MERCANTILE NATIONAL BANK et al., Appellees.
• Court: Texas Court of Appeals

Page 323

455 S.W.2d 323

Harold R. BRUNER et al., Appellants, v. MERCANTILE NATIONAL BANK et al., Appellees.

No. 17419.

Court of Civil Appeals of Texas Dallas.

May 8, 1970.

Rehearing Denied June 12, 1970.

Michael H. O'Brien, Jim Foreman, Baker, Foreman & Boudreaux, Dallas, for appellants.

Timothy E. Kelley, Thompson, Knight, Simmons & Bullion, Stanley Neely, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellees.

BATEMAN, Justice.

The appellants, Harold R. Bruner and his former wife Jo Ann Bruner Walters, sued to recover disability benefits under a written Retirement Plan for Employees of Standard Manufacturing Co., Inc. The defendants were Mercantile National Bank as Trustee of the Plan, Standard Manufacturing Co., Inc., and the three individual members of the Retirement Committee. The judgment, based on the jury verdict, was that appellants take nothing, and they appeal on nine points of error.

The retirement plan in question is funded entirely by contributions of the employer, Standard Manufacturing Co., Inc., which retains no rights to the funds. The plan provides for payment of retirement benefits to qualified participants upon he occurrence of certain events, including disability retirement. Section 2.4 of the plan provides, in part, that a participant may retire from the service of the company under the plan if he becomes totally and permanently disabled, as those terms are defined in Paragraph (B) of Section 2.4 of the plan, as follows:

'Total and Permanent Disability: A participant will be considered totally disabled if, in the opinion of the retirement committee, he is wholly prevented from engaging in any occupation for wage or profit; and a participant will be considered permanently disabled if, in the opinion of the retirement committee, such participant is likely to remain so disabled continuously and permanently * * *.'

Section 5.1 of the plan provides that it shall be administered by a retirement committee appointed by the Board of Directors, under certain rules and regulations and with certain powers set forth in Sections 5.4 and 5.5, as follows:

'5.4--RULES AND REGULATIONS OF RETIREMENT COMMITTEE

The retirement committee shall have the authority to make such rules and regulations and to take such action as may be necessary to carry out the provisions of the plan and will, subject to the provisions of the plan, decide any questions arising in the administration, interpretation and application of the plan, which decisions shall be conclusive and binding on all parties. The retirement committee may delegate any part of its authority and duties as it deems expedient.'

'5.5--POWERS OF RETIREMENT COMMITTEE

In order to effectuate the purposes of the plan, the retirement committed shall have the power to construe the plan, to supply any omissions therein, to reconcile and correct any errors or inconsistencies, and to make equitable adjustments for any mistakes or errors made in the administration of the plan, and all such actions or determinations made by the retirement committee in good faith shall not be subject to review by anyone.'

At all times relevant here the retirement committee has consisted of W. N. Oswald, his son Norman Dean Oswald, and his wife Grace Lillian Oswald, the principal shareholders of Standard Manufacturing Co., Inc. The retirement plan became effective November 1, 1962. The appellant Harold R. Bruner began his employment on or about September 15, 1961 as a welder, continuing in that work until May 24, 1963. On May 25, 1963, while receiving a hypodermic injection of vitamins in the office of a private physician, Bruner suffered a cerebral hemorrhage resulting in paralysis of his right leg and arm, loss of hearing in his right ear, loss of the peripheral vision in his right eye, and impairment of his speech and mental faculties. Although still undergoing physiotherapy Bruner returned to work at Standard Manufacturing Co., Inc. on July 15, 1963, being assigned deburring work, which consisted of removing sharp edges of newly manufactured metal pieces by the use of sandpaper, a file or other abrasives, and which he could do with his left hand and arm. It was deemed too dangerous for him to resume work as a welder. This continued until he was discharged on January 3, 1964. He applied for disability benefits under the retirement plan and the application was referred to the Retirement Committee. That committee, after consultation with the company attorney, denied the application. The committee refused a request to review the decision, whereupon this suit was filed.

The jury found in answer to Special Issues Nos. 1, 2 and 3 that Bruner sustained total and permanent disability beginning January 2, 1964 but in answer to Special Issues Nos. 4 and 5 that the Retirement Committee's decision was not arbitrary and was not made in bad faith.

In their third point of error appellants say the trial court erred in failing to disregard the jury's answers to Special Issues Nos. 4 and 5, and entering judgment thereon, because Bruner 'had a vested property right in his retirement benefits and an inherent right to appeal the decision of the Committee.' In their fifth point of error they say the court erred in rendering judgment on the answers to Special Issues Nos. 4 and 5 'for the reason that said clause of the contract making the findings of the Committee binding is violative of the due process provisions of the Constitution.' Appellees reply that these points were not preserved, but were waived, because they were not included in the motion for new trial. In neither the motion to disregard nor the amended motion for new trial is either of these points brought to the attention of the trial court for a ruling. Therefore, they were waived. Rules 320, 321, 324, and 374, Vernon's Texas Rules of Civil Procedure; City of Sweetwater v. McEntyre, 232 S.W.2d 434, 436 (Tex.Civ.App., Eastland 1950, writ ref'd n.r.e.); Swafford v. Boyles, 437 S.W.2d 306 (Tex.Civ.App., El Paso 1969 no writ); Pearce v. Cross, 400 S.W.2d 622 (Tex.Civ.App., Fort Worth 1966, affirmed Tex., 414 S.W.2d 457). The third and fifth points of error are therefore overruled.

By their first point of error appellants contend that the court erred in basing its judgment on that portion of the contract making the decision of the retirement committee binding 'because said portion of the contract is void by reason of being against public policy.' By their second, fourth and sixth points of error appellants attack the findings in response to Special Issues Nos. 4 and 5, and the judgment based thereon, for the reasons that (2) this 'usurps the Court of its power and is contrary to public policy,' and (4) 'because the answers to the same were immaterial and irrelevant,' and (6) because 'the contract was executory.'

The parties agree that beneficial provisions of such plans are not gifts but are additional compensation in which the employees may acquire vested interests and that each plan constitutes a contract between the employer and its employees. Appellants' suit and appellees' defense are based entirely on the contract. That contract, however, does not give the employee a pension merely if he is totally and permanently disabled, or if a jury shall find him to be totally and permanently disabled; it is given only if he has a condition which, In the opinion of the...