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March 28, 1961.

H. James Gediman, et al., Plaintiffs
Anheuser-Busch, Inc., Defendant.

The opinion of the court was delivered by: BYERS

BYERS, D.J.: Decision is here required as to the amount payable to the executor of the Estate of James E. Barsi, deceased, under the "Salaried Employees' Pension Plan" adopted by defendant Anheuser-Busch, Inc. ("Anheuser") which bears date of December 29, 1952. For some undisclosed reason, participation in that Plan dates from November 1, 1952 according to the provisions of a "Certificate of Participation" issued to Barsi bearing that date.

There are no contested issues of fact since the controversy turns solely upon the proper construction of the applicable section of the said Pension Plan under the circumstances here involved.

Important Dates

 November 17, 1958. Barsi's death.

 August 31, 1956. The date of his retirement as an employee of defendant. It was also the date of a letter written by him to the President of the defendant, the contents of which require discussion.

 September 17, 1956. Date of reply to the above.

 October 15, 1956. Date of a letter written by Barsi for the attention of the Pension Committee of the defendant. This requires discussion.


 The plaintiff Gediman, as executor under the Barsi will, is a resident of this State, the will having been admitted to probate on April 24, 1958 by the Surrogate's Court of New York County. The inclusion of George A. Barsi as administrator c.t.a. indicates a technical but unimportant matter. The defendant is a Missouri corporation.

 Amount Involved

 The plaintiffs aver that the amount payable according to the provisions of the said Plan is $84,582.00, for which judgment is demanded in the first and second causes of action.

 The answer of the defendant contains the following closing paragraph:

 "Wherefore defendant demands judgment dismissing the complaint except to the extent that the court may determine that one or the other plaintiff is entitled to some recovery under Defendant's Salaried Employees' Pension Plan."

 This somewhat cryptic attitude means that there is in evidence correspondence between the parties prior to the institution of litigation, the effect of which is to concede that there is payable under the said Plan what is called a death benefit in the sum of $32,790.44. Thus the controversy really involves the difference between $84,582.00 (early retirement pension) and $32,790.44 (death benefit) or about $52,000.00 in round figures.

 It will be convenient at the outset to discuss a matter not pleaded but which has been asserted in the final submission of the case, namely, that either the wrong defendant has been sued or that there has been a failure to join a necessary party, St. Louis Union Trust Company, as Trustee. That company is the trustee named in the Pension Plan, and the argument made by the defendant is that a money judgment against Anheuser is not appropriate even as to the sum conceded to be payable. In a sense, that is true, because the trust fund was created by the defendant with the trust company named as trustee, and all payments made into the trust fund were by the defendant, and consequently a plaintiffs' judgment should be paid by the trust company and not out of the general properties and assets of the defendant.

 That theory should not be permitted to obscure the fact that under date of May 16, 1958, which was prior to the filing of the complaint herein, the trust company wrote to the attorney for the plaintiff (Exhibit 10) as follows:

 "Dear Mr. Slack:

 "In re: Anheuser-Busch, Salaried Employees' Pension Trust, Trustee U/AT.D. 70052

 "We have received your letter of May 14, requesting that you be furnished with a complete copy of the Anheuser Busch Salaried Employees' Pension Plan. We are acting as Trustee under the trust agreement, but the scope of our authority does not include the administration of the plan, the determination of benefits and similar matters. I believe that your request should therefore be addressed to the Pension Committee appointed by the Board of Directors of Anheuser-Busch, Inc., and suggest that you write direct to Mr. Reid McCrum, Treasurer of the corporation.

 Very truly yours, J. W. Kouri Pension Trust Officer"

 An examination of the Plan indicates that the foregoing letter correctly states the relationship between the defendant and the trust company. This means that any judgment to be rendered in favor of the plaintiffs against the defendant at the request of the latter would be payable out of the trust funds being administered by the trust company under the direction of the defendant's Pension Committee.

 It seems unnecessary to pursue the subject further even though the action is not in rem against the fund but in personam against the defendant corporation. The satisfaction of the judgment is a mere matter involving the capacity of the defendant to direct the payment of the proceeds of any such judgment out of the trust fund instead of from its general assets.

 No motion was made to dismiss the action prior to the trial because the wrong defendant was named, nor was there a motion to add a necessary party defendant.

 Finally, it appears that under date of July 8, 1958 (Plaintiffs' Exhibit 7) the general counsel for the defendant wrote to the plaintiffs' attorney:

 "Dear Mr. Slack:

 * * *

 "We also have this problem. It now appears that Mr. Barsi's estate is entitled to only approximately $32,000 rather than the approximate $84,000 contained in your demand.

 "I, therefore, make the suggestion that you consider and determine any of the following alternatives.

 * * *

 "(c) That a declaratory judgment suit be brought by Gediman in New York against Anheuser-Busch, Inc. to adjudicate the amount and the payment.

 Very truly yours, Dwight D. Ingamells"

 While the pending action in form is not one seeking a declaratory judgment, it is not without significance that the general counsel for the defendant company was of the view that such an action against this defendant would be appropriate.

 It is believed that within the purpose of F.C.R. 15(b) and 57, the Court may consider that the pleadings have been amended to conform to the proof, and that in effect a declaratory judgment is thereby rendered proper for the disposition of this controversy.

 Sight has not been lost of the provisions of Paragraph 6 of Part I of the Plan that no legal or equitable rights against the company, the trustee or the Pension Committee are to arise by virtue of the Plan "except as herein expressly granted to them."

 Since it is thought that certain rights are so created, the limitation does not deprive the Court of the power so to adjudicate this controversy.

 The Causes of Action as Pleaded

 The first according to the amended complaint, asserts in effect a breach of contract based upon Barsi's status under the Plan at the time of his death, when there was said to be due and owing to the plaintiffs the sum of $84,582.00, as to which demand was made and refused.

 While the second is stated to be distinct, it is in effect also an assertion of a breach of the said contract based upon correspondence which passed between Barsi and Anheuser with respect to Barsi's rights under the Plan, and which correspondence resulted in the recognition of an obligation to pay the last mentioned sum, as to which demand has been refused.

 The third repeats the allegations above referred to, and asserts that Barsi elected in writing to receive from the defendant the said sum "in cash or by defendant's application of said cash sum to the purchase of an annuity for him and he gave due written notice to defendant of his said election." Further that the defendant advised Barsi in writing that he had a vested interest in the Pension Plan having a present value of $78,356, and that "if he elected to defer payment until May 1, 1958, his vested interest would thereby be increased and there would be paid and distributed to him on May 1, 1958 the larger sum of $84,582."

 That Barsi relied upon said representations and made his election as above recited, and so advised the defendant.

 That the defendant refused to pay the said sum in response to demand and advised that Barsi's estate was entitled to receive "only approximately $32,000 under said Pension Plan." Then follow allegations that the representations above referred to were false "and were known to defendant to be false when made, or said representations were made by defendant without any knowledge that they were true, recklessly, carelessly and without regard as to whether they were true or not; and the true facts and circumstances which were known to or could have been ascertained by defendant were fraudulently suppressed and concealed from James E. Barsi by defendant."

 That such representations were made with knowledge that Barsi would rely thereon "and with the purpose of inducing James E. Barsi to elect to defer until a later date his demand to receive and his receipt of the moneys due him under the aforesaid Pension Plan."

 Further that the representation was that if Barsi elected to defer receipt of the moneys payable to him until May 1, 1958 "but died prior to May 1, 1958, he would receive less than his vested interest of $78,356," the amount of which sum was unknown to Barsi, in violation of a duty on the part of the defendant to correctly and fully inform him.

 Further, that Barsi did rely upon said representations and that if he had not so relied by reason of the concealment attributed to the defendant, he would have elected to receive immediate payment of the said so-called vested interest in the said sum of $78,356, whereby his estate has been damaged "in an amount equal to $78,356 reduced by the sum which plaintiffs are entitled to recover upon the prior causes of action herein."

 The answer denies that the plaintiffs are entitled to the amount claimed, and pleads the terms and conditions of the said Plan; also reference is made to the said correspondence and all matters pleaded in the third cause of action are denied, namely, that there was any fraud or misrepresentation.

 Since all the plaintiffs' asserted causes involve the correspondence referred to, it will be convenient now to discuss the letters in connection with the third cause, as to which, in the opinion of this Court, the plaintiffs have failed to sustain their burden of proof.

 The several letters follow:

 [Plaintiffs' Exhibit 2:]

 "Jackson, California, August 31, 1956

 "Mr. August A. Busch Jr., President, Anheuser-Busch Inc., 721 Pestalozzi St., St. Louis, Mo., Dear Mr. Busch:

 "I had planned to see you in St. Louis before August 31st, 1956, but had to return to the coast due to the death of my Aunt Margaret.

 "The purpose of seeing you in St. Louis was to discuss with you personally, because of our long and friendly relationship through the years, the options embodied in the Company pension plan.

 "In as much as you are Chairman of the Pension Committee, and are throughly familiar with the Charter, I feel that I should present my case directly to you for consideration and action.

 "It is my desire to have you personally make a complete review of my case. My reason for the above statement is: 'no one except you know what my contributions have been to you and Anheuser-Busch, over my 25 years of loyal, productive and trustworthy service.'

 "The following points I would like to have you give your special consideration too:

 1. A quarter of a century of the best years of my life were given to you and the Company.

 2. Your present pension plan does not give proper weight and consideration to employees with my length of service. Your pension plan would have been most beneficial to me in the next ten years.

 3. It would have increased my benefits from $80,000.00 to $230,000.00.

 4. I feel that you personally would want to give special consideration to me in regards to the pension plan.

 "The reason your consideration is so important, is due to a health condition that materialized during my tenure with Anheuser-Busch Inc.

 "In case your consideration is not forthcoming it leaves me no alternative but to make a most serious decision which I am not qualified to make, as I am not fully informed of all the various phases and ramifications contained in the Pension charter. You as Chairman, have the flexibility to deviate from the Charter itself. If you feel that work and effort does not warrant your special interest in me, it leaves me no alternative, but to advise, 'I would like to receive payment of my pension in the form of a cash lump payment set forth on page 12, paragraph 15, subdivision (C)(II) of the booklet entitled "Salaried Employees' Pension Plan"' or a single amount premium life annuity contract issued by an insurance company as set forth on page 12 (C)(I) in the above booklet. I also elect to take $1000.00 paid up life insurance and the opportunity of converting the remaining $9,000.00 insurance policy of my choice without a physical examination.

 "As stated before, the 25 years spent with you and the Company were my working lifes' contribution and it is extremely difficut to start over at 55 years of age.

 "I am leaving the decision to your good judgment.

 "My last request is that you personally handle my case and not delegate it to others who are not cognizant of my ...

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