Wright v. Standard Ultramarine & Color Co.

• Citation: 141 W.Va. 368,90 S.E.2d 459
• Decision Date: 06 December 1955
• Docket Number: No. CC820,CC820
• Court: Supreme Court of West Virginia
• Parties: Robert E. WRIGHT v. STANDARD ULTRAMARINE AND COLOR COMPANY.

Page 459

90 S.E.2d 459

141 W.Va. 368

Robert E. WRIGHT v. STANDARD ULTRAMARINE AND COLOR COMPANY.

No. CC820.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 1955.

Decided Dec. 6, 1955.

Syllabus by the Court.

1. A count in a declaration in an action of assumpsit which contains some allegations in the established form of a common count in general assumpsit for labor and services performed but which contains other material allegations which show that a part of the alleged indebtedness of the defendant is based upon an express contract and that the residue of such indebtedness is also based upon an express contract, but which fails to set forth sufficiently a cause of action against the defendant arising from any express contract is not a good common count in general assumpsit but is a fatally defective special count in special assumpsit and is insufficient on demurrer.

2. When a contract of employment is of indefinite duration it may be terminated at any time by either party to the contract.

3. 'An employment upon a monthly or annual salary, if no definite period is otherwise stated or proved for its continuance, is presumed to be a hiring at will, which either party may at any time determine at his pleasure without liability for breach of contract.' Point 1, syllabus, Resener v. Watts, Ritter and Company, 73 W.Va. 342, [80 S.E. 839, 51 L.R.A.,N.S., 629].

4. A special count in a declaration in an action of assumpsit, which sets forth no valid contract of employment of the plaintiff by the defendant other than a contract of employment at the will of either party to the contract, and in which count the plaintiff seeks to recover from the defendant on such contract damages which result from the act of the defendant in discharging the plaintiff from such employment, does not sufficiently state a cause of action against the defendant and is insufficient on demurrer.

Milton J. Ferguson, Wayne, Edward H. Greene, C. M. Morgan, Huntington, for plaintiff.

J. J. N. Quinlan, H. L. Ducker, Huntington, for defendant.

HAYMOND, Judge.

In this action of assumpsit instituted in the Circuit Court of Cabell County on March 30, 1954, the plaintiff, Robert E. Wright, seeks recovery from the defendant, Standard Ultramarine and Color Company, a corporation, in the amount of $38,000.00 for breach by the defendant of a contract between it and the plaintiff who is a former employee of the defendant.

The plaintiff filed and relies upon an amended declaration but he did not file with it any account stating distinctly the several items of his claim, as provided by Section 18, Article 4, Chapter 56, Code 1931, with respect to the allegations of the first count of the amended declaration.

To the amended declaration of the plaintiff, which contained a purported common count and a special count, the defendant filed its written demurrer by which it challenged the legal sufficiency of the amended declaration and each of its two counts on several specified grounds. The defendant also filed its plea of non-assumpsit and six special pleas.

By order entered January 28, 1955, the circuit court overruled the demurrer of the defendant to the amended declaration and each of the counts, and on March 11, 1955, on its own motion, certified its ruling upon seven points of law, arising upon the demurrer, to this Court.

On April 18, 1955, this action was placed upon the docket of this Court for hearing and on September 20, 1955, the questions presented by the certificate were submitted for decision upon the demurrer to the amended declaration and the briefs filed in behalf of the respective parties.

The first count of the amended declaration, which purports to be a common count, alleges that the defendant on March 18, 1954, in Cabell County, was indebted to the plaintiff in the sum of $38,000.00 for work and services performed by the plaintiff over a long period of years for the benefit of the defendant at its request; that $30,000.00 of the amount sued for is due the plaintiff 'under a paid up Group Annuity Contract'; that $8,000.00 of the amount sued for is due the plaintiff for 'salary and fringe benefits,'; that being so indebted the defendant, 'in consideration thereof,' promised the plaintiff to pay him, on request, the amount so due him, but that the defendant, though often requested, has not paid, and refuses to pay, the amount due the plaintiff, or any part of it, to the damage of the plaintiff in the amount sued for of $38,000.00.

The second count of the declaration, a special count, alleges that the plaintiff for the past thirty six years has been an employee of the defendant and during that period he has always performed his duties and fulfilled his obligations in a manner satisfactory to the defendant; that on December 1, 1950, the defendant introduced into its plant a supplementary contract of employment, embracing a retirement income plan for all its full time salaried employees, which included the plaintiff and entitled him to the benefits of the plan; that the defendant 'widely heralded' the plan as of 'inestimable benefit to the covered employees' and distributed a pamphlet, signed by its president, which described the benefits to be derived from the plan; that the plaintiff later received a certificate, issued by The Prudential Insurance Company of America, which showed that the defendant was covered by a group annuity contract as a participant; that under the plan each full time salaried employee of the defendant who was not over sixty five years of age on December 1, 1950, was eligible to participate in the plan after completing two years of active service with the defendant; that the normal annuity date of the participant occurred on the first day of the month next following his sixty fifth birthday; that there were also certain provisions known as vesting requirements which were fulfilled if the participant had completed at least twenty years of continuous employment with the defendant and had attained his fifty fifth birthday; that, though the defendant paid the premiums under the plan, when the plan was inaugurated 'there came into being a binding contract between the company' and the plaintiff as a participating employee; that the defendant adopted the plan as a means of inducing qualified and capable men to join its organization and to continue in its employment the persons then employed; that the consideration for the defendant's promise to pay the premiums was the continuance in its employment of qualified employees who remained and worked for the defendant in reliance upon their retirement in security, either upon reaching the normal annuity date or after having fulfilled the vesting requirements; that the plaintiff intended to leave the employment of the defendant but did not do so solely because it had established a plan which gave him assurance that he would receive an income from his retirement; that under the plan if the employment of a participant is terminated after his fifty fifth birthday and after he has completed twenty years of continuous service, he is entitled to receive, from his normal annuity date, the annual amount of normal retirement annuity purchased for him under the policy, but if his employment is terminated before he fulfills the vesting requirements the annuity is cancelled, he will receive nothing, and the amount paid as premiums remains to the credit of the defendant; that the plaintiff would have become fifty five years of age on November 3, 1953, which the defendant knew on March 18, 1953, when its president summarily discharged him, terminated his employment, and relieved him of his duties, in breach of contract, in order that the defendant would not be required to continue to pay the premiums under the annuity retirement plan and the plaintiff would be unable to receive the benefits under it; that the plaintiff was then offered a cash settlement of $5,000.00 if he would resign; that the plaintiff never, at any time, neglected his duties; and that there were no reasons whatsoever for his dismissal from the employment of the defendant.

The second count also alleges that the plaintiff had a vested interest in the accumulated sum paid under the retirement plan introduced by the defendant for the joint benefit of the defendant and its employees; that on December 15, 1952, he received a letter from the defendant stating that his future compensation would consist of salary, retirement plan premiums and 'many fringe benefits'; that the plaintiff was then being compensated for his work by his salary and the retirement plan premiums which were an integral part of his compensation; that because of the retirement plan adopted in the year 1950 the plaintiff remained in the employment of the defendant, which he would not otherwise have done, and at that time he had the understanding and the agreement with the defendant that as long as he properly performed his duties he would be continued in his employment; that 'under such circumstances and in the light of the agreement between them as aforesaid there came into existence a valid contract upon which there had been a meeting of the minds and which was not subject to being broken or disregarded'; and that though he received a notice from the defendant under date of December 15, 1953 that beginning January 1, 1954 his basic salary would be increased to $725.00 per month and that he would receive certain other amounts to which he would be entitled in consideration of his employment, he was summarily dismissed without reason or cause in violation and breach of contract.

The second count further alleges that upon reaching his fifty fifth birthday on November 3, 1954, the plaintiff, if he had then been in the employment of the defendant, would have had a vested interest in a paid up group annuity contract of $30,000.00 from which, when he reached the age of sixty five years, he would have received the sum of $2,400.00 per year...