287 N.W. 620 | Neb. | 1939
Plaintiff, Marjorie Twiss, an employee of the Lincoln Telephone & Telegraph Company, defendant, demanded in her petition pension benefits under the latter’s pension plan and recovered in her action therefor a judgment for $1,272.95.
On appeal defendant insists the trial court erred in overruling motions to direct a verdict in its favor.
Plaintiff contends that defendant’s pension plan constitutes a binding contract between employer and employee; that the evidence supports the verdict on the issue that plaintiff was wrongfully discharged and that her vested pension rights were then $1,272.95.
Defendant issued a 23-page pamphlet, effective January 1, 1917, entitled “Plan for Employees’ Pensions, Disability Benefits and Death Benefits.” The plan is described in the pamphlet. Plaintiff makes no claim for disability or death benefits. The redress sought by her in this cause of action is limited to pension benefits which depend on the plan and terms described in the pamphlet. . The trust fund for the payment of pensions is created solely by defendant. Plaintiff contributed nothing thereto. Nothing was taken from her compensation to augment the trust fund. She was employed by defendant for telephone service at Louisville, August 1, 1917, and in some capacity was continuously an employee there until she was discharged by defendant July 19, 1935, at the age of 38 years, after approximately 18 years of service. At first she was switch-board telephone operator at $32.50 a month. In 1920, she became manager and chief operator at defendant’s Louisville exchange at $70 a month.
When plaintiff was employed in 1917, an officer of defendant explained to her the pension plan described in the pamphlet and she understood the terms on which pensions were to be granted.
Under section 4 of the pension plan plaintiff, after 20 or more years of service, having reached the age of 55 years, would have a right to a pension of $30 a month for life. Her position is that she entered the service of defendant and continued therein, relying on her vested pension rights under her contract of employment, until she was wrongfully discharged July 19, 1935, and that she is entitled to the present worth of her pension benefits for the entire 18-year period of her service, which an actuary figured at $1,272.95, the amount of the verdict on this claim.
The pamphlet states the terms and condition under which an employee of defendant may qualify for a pension. Section 4 thereof, in paragraphs “1 (a) and 1 (b),” provides:
“ (1) On and after the effective date of this plan:
“(a) All male employees who have reached the age of sixty years and whose term of employment has been twenty or more years and .all female employees' who have reached the age of fifty-five years and whose term of employment has been twenty or more years may, at their own request, or at the discretion of the committee, be retired from active service and become eligible to pensions, which pensions are designated ‘service pensions.’
“(b) Any employee whose term of employment has been thirty years or more, or any male employee who has reached the age of fifty-five and whose term of employment has been twenty-five or more years, or any female employee who has reached the age of fifty years and whose term of employment has been twenty-five or more years, at the discretion*791 of the committee and with the approval of the president or of a vice-president designated by the president, be retired from active service and granted a pension, which pension is also designated a ‘service pension.’ ”
Section 8 of the pamphlet, under “General Provisions,” referring to section 4, paragraphs “1 (a) and 1 (b)” thereof, is as follows:
“ (1) Neither the action of the board of directors in establishing this plan for employees’ pensions, disability benefits and death benefits, nor any action hereafter taken by the board or the committee shall be construed as giving to any officer, agent or employee a right to be retained in the service of the company or any right to claim to any pension or other benefit or allowance after discharge from the service' of the company, unless the right to such pension or benefit has accrued prior to such discharge. No employee shall have any right to a service pension by reason of service less than that specified in paragraph 1 (a) and 1 (b) of section 4 of these regulations, nor shall any employee have any right in the pension fund unless a service pension authorized by the committee under the plan has not been paid. No employee shall have any right against the company to any benefit under the plan except for the amount to which the employee has theretofore become entitled and which the committee has directed be paid to that employee under the plan.”
Under plan and conditions needing no interpretation, plaintiff did not qualify for a pension. Her term of service was not 20 years and she had not reached the age of 55 years. “No employee shall have any right to a service pension by reason of service less than that specified in paragraph 1 (a) and 1 (b) of section 4 of these regulations,” says the pamphlet. If plaintiff, as she contends, has a vested right to pension benefits from the time she was employed to the end of her service, those rights would be uneffected by her discharge. There is no right to a pension after the discharge of an employee, unless it previously accrued. Defendant provided the trust fund for pensions voluntarily
Decisions of courts are not in point in cases where employee contributed part of the trust fund for pensions, where the employee had been qualified by service and age, and where bonuses became part of the compensation of employee. On the issue of pension benefits defendant states its position as follows:
“Under a pension plan where the pension fund is accumulated solely through contributions from the employer and the plan provides that no employee shall have any right to a pension for service less than that specifically set out in the plan, and further that the establishment of the plan shall not give any employee a right to be retained in the service of the employer or any right to a pension after discharge, unless the right to a pension has accrued prior to such discharge, an employee who is discharged before having been employed a sufficient length of time to qualify under the plan has no rights or claims in or to the pension fund.” Citing: Wallace v. Northern Ohio Traction & Light Co., 57 Ohio App. 203, 13 N. E. (2d) 139; Magnolia Petroleum Co. v. Butler, 86 S. W. (2d) (Tex. Civ. App.) 258; Burgess v. First Nat. Bank, 219 App. Div. 361, 220 N. Y. Supp. 134; Dolge v. Dolge, 70 App. Div. 517, 75 N. Y. Supp. 386; McNevin v. Solvay Process Co., 32 App. Div. 610, 53 N. Y. Supp. 98; Texas & N. O. R. Co. v. Jones, 103 S. W. (2d)*793 (Tex. Civ. App.) 1043; Fickling v. Pollard, 51 Ga. App. 54, 179 S. E. 582. Also, dissenting opinion in Psutka v. Michigan Alkali Co., 274 Mich. 318, 264 N. W. 385.
This is the only tenable view of defendant’s pension plan considered as a whole. Plaintiff did not make a case for pension benefits in any amount. The trial court erred in overruling the motions to direct a' verdict in favor of defendant on that issue. The judgment for pension benefits is therefore reversed and the action therefor dismissed.
Plaintiff in her petition alleged also that defendant slandered her in the telephone exchange at Louisville July 19,. 1935, and claimed resulting damages in the sum of $25,000. Upon the trial there was a verdict in her favor for $5,000 and from a judgment therefor defendant appealed.
The alleged slanders were pleaded in the following form:
“That on or about the 19th day of July, 1935, the defendant by and through its officer and servant, one John A. McKinzie, in the city of Louisville, Nebraska, in the hearing of sundry persons, of and concerning the plaintiff, said in substance that plaintiff ‘had .been having beer parties with men in the office’ and that plaintiff ‘asked a traveling man from Kansas City to stay all night with her,’ thereby meaning and conveying the idea that plaintiff had violated rules of her employer, the defendant, while on duty a's a telephone operator, had neglected her duties as such operator and was unfit for such duty, that she was a woman of lewd and immoral character, a prostitute and unfit to remain in the employ of the defendant.”
It was further alleged that such statements were false and slanderous and were uttered and published maliciously for the purpose of injuring and damaging plaintiff in her good name and in her business standing and reputation.
Plaintiff’s version of what occurred July 19, 1935, in connection with the slanders charged, as disclosed by her testimony on the witness-stand, may be summarized as follows:
As night operator she went off duty on the morning of July 19, 1935, at 7 o’clock and left the exchange for home. When asleep, about 11:00 a. m., her mother called her to
This is a brief outline of the time, place and story of the alleged slanders as told by plaintiff herself.
McKinzie testified in substance that he went to Louisville in the usual course of his corporate duties in the forenoon of July 19, 1935; that R. M. Misner was area manager for defendant; that he had charge of the Louisville office;
“I told her that I had called her down because I wanted to talk to her further about the trouble we had been having and I recited some of the things that I had told her before and I said, ‘The thing that I heard to-day that I feel is the climax,’ and that was the fact that she would stand up to the window and tell subscribers that would come in to pay their bills that if T had no more use for a telephone than you have I would have it taken out. In fact, I would have my own taken out if I didn’t work here.’ And I said, ‘Now you realize how hard we have all been working to keep telephones and to have you stand up and tell people those things’ was just a little bit more than I was going to stand for and she denied that she had ever said anything like that. And then I told her another matter that had come to my attention after I had reached Louisville, of the rumor that I had received in regard to a conversation that she had had. I asked her, ‘Do you recall having a conversation with a salesman a few nights ago, inviting him over to the telephone building to spend the evening with you ?’ And she denied it. I said, ‘You don’t recall having such a conversation?’ She said, ‘No.’ I then called in Miss Carter and Miss Thornton and had them relate before her and Mr. Misner what they had previously told about her conversations at the window with subscribers.” Plaintiff denied any such conduct on her part.
Defendant is a public service corporation and is conduct
There is no evidence that defendant published the alleged slander charging immorality. Leona Wallace, a dressmaker employed by plaintiff, testified that she sat in the lobby of the exchange after plaintiff went into the rest room and heard a man’s voice and he said: “Miss Twiss, you asked a traveling man from Kansas City to stay all night with you and he wouldn’t stay because he said he had his wife with him.” McKinzie had taken the precaution to be alone when plaintiff came into the rest room. Her own testimony so shows. He had telephoned for plaintiff, but did not invite Leona Wallace to the exchange. She had no business to transact there or other connection with defendant. She was brought there by plaintiff herself and under the circumstances publication through her was publication by plaintiff, not by defendant. A text-writer states the law as follows:
“If the only publication proved at the trial be one brought about by the plaintiff’s own contrivance, this is no sufficient evidence of publication; it is as though the only publication*797 were to the plaintiff himself, and therefore he must be non-suited.” Newell, Slander and Libel (4th ed.) sec. 427.
As to the accusations of immorality, there was no evidence of publication by defendant, and the trial court erred in submitting that issue to the jury. For the error in that particular the judgment for slander is reversed and the cause remanded for further proceedings.
Reversed.