Parsley v. Wyoming Automotive Co.

• Decision Date: 15 September 1964
• Docket Number: No. 3247,3247
• Citation: 395 P.2d 291
• Parties: Elmer J. PARSLEY, Appellant (Plaintiff below), v. WYOMING AUTOMOTIVE COMPANY, and Ernest Wilkerson, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 291

395 P.2d 291

Elmer J. PARSLEY, Appellant (Plaintiff below), v. WYOMING AUTOMOTIVE COMPANY, and Ernest Wilkerson, Appellees (Defendants below).

No. 3247.

Supreme Court of Wyoming.

Sept. 15, 1964.

John J. Rooney, of Hickey, Rooney & Walton, Cheyenne, for appellant.

Robert R. Rose, Jr., Casper, for appellees.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Elmer J. Parsley, plaintiff, sued his employer, Wyoming Automotive Company, and its principal-executive officer, Ernest Wilkerson, for breach of an alleged contract to pay plaintiff $150 per month for five years as retirement pay. Claims are also involved concerning shares of stock in the company, which were held by plaintiff, and concerning rights lost by plaintiff in group-insurance policies.

Following a trial without jury, judgment was awarded in favor of the defendants, and plaintiff has appealed. We are notified of his death on July 8, 1964, subsequent to oral argument and the submission of this case on appeal.

For the most part, facts in the case are not in dispute. They reveal that Parsley, who was born January 10, 1897, went to work for Wyoming Automotive in May, 1933, at the age of 36. He left this employment December 31, 1960, at age 63, with more than 27 years of service. At various times during his years of service, presidents of the company made statements indicating a desire on the part of the company to provide its employees with a retirement plan and promising such a plan would be worked out and put into effect.

On September 15, 1955, a profit-sharing trust was set up for employees under the age of 55 as of March 1, 1955. It was stated in the announcement thereof that special provisions would be made for employees over 55 years of age, which included plaintiff. Then on June 30, 1960, a company bulletin reported a 'uniform policy' affecting nonprofit-sharing participants relative to retirement from the company's service. According to this bulletin:

1. An employee could be retired at the company's option after reaching the age of 60, in which case he would be paid one-half of his monthly salary until he reached age 65, if he had 35 years of service. If he had less than 35 years of service, his monthly retirement pay would be diminished in ratio.

2. An employee could retire at his option or be retired at the company's option after reaching the age of 65 and after service of 25 years, at the rate of $150 per month, from which would be deducted the amount earned elsewhere, up to $1,200 per year. Payments would be reduced in ratio if the employee had less than 25 years of service.

The bulletin stated that while the company would do all possible to maintain these payments, it could not guarantee they would be permanently paid. The communication was directed to all general managers and store managers, and named personnel. In the body of the instrument it was recited that the policy affects the following personnel: Blackman, Bottrell, Brandenburg, Mervine, Parsley, Russell, Shields, Stewart, Welter, and Woolston.

Upon inquiry as to whether he wished to retire, Parsley advised the company he did not wish to do so. Thereupon Wilkerson wrote him a personal memorandum on December 5, 1960 in which he offered Parsley a transfer from Cheyenne to a salesman's job in Denver, with the following alternative:

'If you do not want to do this, then the company will pay you retirement pay at the rate of $150 per month for a period of five years. * * *'

In the same paragraph of his memorandum, Wilkerson advised that the company had concluded its June 30, 1960 plan was too liberal and the directors had accordingly adopted a modification which would terminate the $150 per month employee benefits at the end of five years. He continued by saying inasmuch as anything the company does in the way of retirement is something in the nature of a gift because there was never any agreement for it during past years, we do not feel we have a contract with anyone on this matter, except in the case of Shields, who was specifically told, and for a particular reason, that he could have early retirement.

We find nothing in the memorandum which says or implies that the offer to Parsley of $150 per month for retirement was qualified or subject to the conditions of any previous retirement plan. On the other hand, the writer, as we read his memorandum, explained that the June 30, 1960 plan was not being followed because it was considered too liberal and did not constitute a binding agreement for pension benefits.

The position of the company was made clear in its memorandum to Parsley that it did not consider itself under contract to its employees by reason of the bulletin or previous promises. However, it acknowledged that a contract had been concluded with Shields, and it was offering in words which could scarcely have been more clear to conclude a contract with Parsley, when Wilkerson said, 'If you do not want to do this, then the company will pay you retirement pay * * *.'

Notice of the modification which Wilkerson referred to in his memorandum to Parsley was sent to all general managers and store managers and to the personnel not covered by the company's profit-sharing trust (including Parsley), in a further bulletin dated December 8, 1960. Parsley was properly included in the distribution thereof because he was still an active employee and had not yet elected whether to transfer to Denver or accept the retirement which had been offered to him.

In this bulletin the company again made it clear in express words that it was denying any commitment on the part of the company, under the former bulletin or under the modification, to pay pensions in any amount. It stated what the company was going to 'try to do' in these words:

'The only modification in this program is that, as to employees retired at age 65, or later, the payments under the program, instead of continuing for an indefinite period, will continue for a period of five years.'

Although the company was now saying to Parsley that its bulletins should not be construed as a commitment to pay pensions in any amount, the memorandum of December 5, 1960 expressed a commitment without qualification or reservation to 'pay you retirement pay,' in the event Parsley did not want to transfer to Denver.

Actually, at the time of his retirement, Parsley did not qualify for retirement under the June 30 bulletin nor under the modification thereof. He was 60 years of age but was not being retired at the option of the company. Therefore, he could not come under the first part of the June 30 bulletin. Also, he was not yet 65 and could not for this reason come under the second part of the bulletin. As far as the modification is concerned, it referred only to employees retired at age 65, 'or later.' Parsley was only 63.

Appellees argue that in the event Wilkerson's memorandum of December 5 is found to contain an express offer for the payment of retirement pay, then the provision for deduction of any amounts earned elsewhere up to $1,200 per year should be read into the offer by implication. In our minds, this calls for a strained and unnatural interpretation of the offer made in the December 5 memorandum. Since we cannot look to the bulletin for implied benefits in favor of the employee, we think we should not under the circumstances of this case look to it for implied limitations.

We are assisted in this conclusion by additional evidence of the parties' intentions. Parsley accepted the offer of the company for retirement in a letter dated January 13, 1961. Speaking for himself and family in this letter, he said 'we have made the decision to stay here [Cheyenne, Wyoming], and accept the pension of $150.00 per month for five years as stated in your letter of December 5, 1960.'

There was nothing in the acceptance to indicate that the acceptor expected deductions for amounts earned elsewhere. In fact the opposite is strongly indicated. The company did not correct Parsley's obvious understanding that the pension was to be $150 per month for five years. On the contrary, Wilkerson further verified the same understanding by a letter to Parsley on January 16, 1961, in which he said, 'As indicated in my letter to you of December 5, we will pay you a monthly pension of $150.00 per month for a period of five years, the first payment to be made February 15, 1961, and a like payment on the 15th of each month thereafter.' Here again, there was absent any indication the company intended to deduct for amounts earned elsewhere.

As a matter of fact, the company actually commenced regular monthly retirement payments to Parsley and continued them until he reached 65 years of age, without attempting to deduct for earnings elsewhere or without making any inquiry as to such earnings. Then, on February 16, 1962, the company's controller wrote Parsley stating that since he had now passed his 65th birthday, his pension would be subject to deductions up to $100 per month for amounts earned elsewhere.

This precipitated an insistence from Parsley that his pension was not subject to such deductions, and he refused to report what his earnings elsewhere amounted to. The company thereupon discontinued his retirement pay.

We have already indicated the opinion that nothing was...