Flammer v. Patton

• Decision Date: 11 June 1969
• Docket Number: No. 68--308,68--308
• Citation: 223 So.2d 750
• Parties: Russell B. FLAMMER, Appellant, v. Glenn E. PATTON, William E. Thompson, Robert A. Tucker, Benjamin P. Frye and Francis X. Crowley, as Trustees in charge of the Employees' Pension and Death Benefit Plan of Beneficial Finance Company, Appellees.
• Court: Florida District Court of Appeals

Page 750

223 So.2d 750

Russell B. FLAMMER, Appellant, v. Glenn E. PATTON, William E. Thompson, Robert A. Tucker, Benjamin P. Frye and Francis X. Crowley, as Trustees in charge of the Employees' Pension and Death Benefit Plan of Beneficial Finance Company, Appellees.

No. 68--308.

District Court of Appeal of Florida, Second District.

June 11, 1969.

J. A. McClain, Jr., of McClain & Turbiville, Tampa, for appellant.

Thomas C. MacDonald, Jr., of Shackleford, Farrior, Stallings & Evans, Tampa, for appellees.

McNULTY, Judge.

Plaintiff-appellant had been an employee of the Beneficial Finance Company or of one of its subsidiary small loan companies for more than thirty years. He retired in 1964 and commenced receiving benefits in the form of monthly checks pursuant to an employee Pension Plan of the Beneficial Finance Company. Section 2A(6) of that Plan provides as follows:

'Retirement Allowances shall cease with the payment for the month following that in which death occurs. Any right or claim to any Retirement Allowance which any employee, retired employee or his beneficiary may have (a) shall terminate, or Shall be discontinued or suspended for such periods as the Trustees may determine, if the Trustees shall find that such employee or retired employee has been engaged in a business or occupation in competition with that of the Corporation or any subsidiary thirty days or more after the Trustees have given him written notice to cease his participation in such business or occupation.' (Italics supplied)

Several months after retirement appellant accepted employment as a loan officer with The National Bank of Tampa, discharging responsibilities as head of the installment loan department. On October 11, 1965 the trustees of the aforesaid employee Pension Plan notified appellant that, pursuant to the terms of the aforesaid § 2A(6) of the Plan, appellant's benefits thereunder were being suspended until sufficient proof was received that appellant had withdrawn from competitive activity.

Plaintiff-appellant brings this appeal from an adverse judgment entered on his declaratory judgment action in which he sought to invalidate the actions of the trustees as aforesaid. He raises two points on appeal. First, he contends that § 2A(6) is void as against public policy in that it is a contract in unreasonable restraint of trade and violative of § 542.12, F.S.A. His second contention is that, even if the aforesaid § 2A(6) is valid, he was not properly found in violation thereof. We reject both contentions.

The Florida Supreme Court, in Barr v. Sun Life Assurance Company of Canada, ¹ dealt with a provision of a contract similar in principle to the one before us. In that case the court upheld a contract of employment between an insurance company and its agent, and was concerned with a provision thereof dealing with the restrictions imposed on the agent if and when the employment relationship terminated. It was essentially agreed in that contract that if, after termination...