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BANK FOR SAVINGS AND TRUSTS v. TOWE

May 22, 1957

BANK FOR SAVINGS AND TRUSTS, AN ALABAMA CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS IN BIRMINGHAM, ALABAMA, AS TRUSTEE UNDER PROFIT SHARING TRUST FOR EMPLOYEES OF MONTGOMERY & CRAWFORD COMPANY, INC., HENRY T. BOURNE, GEORGE WAYNE, THOMAS CREWS, JOHN S. JEMISON AND OTTO MARX, JR., AS THE ADMINISTRATIVE COMMITTEE OF PROFIT SHARING TRUST FOR EMPLOYEES OF MONTGOMERY & CRAWFORD COMPANY, AND MONTGOMERY & CRAWFORD COMPANY, INC., PLAINTIFFS-APPELLANTS,
v.
WALLACE S. TOWE, INDIVIDUALLY AND AS REPRESENTATIVE OF A SIMILAR CLASS AND LEON KINGSLEY, INDIVIDUALLY AND AS REPRESENTATIVE OF A SIMILAR CLASS, DEFENDANTS, EX PARTE LUCILLE P. GALLMAN, INDIVIDUALLY ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED WHO MAY SHARE IN THE BENEFITS AND THE BURDEN OF HER INTERVENTION, PETITIONER-INTERVENOR-RESPONDENT.



The opinion of the court was delivered by: Moss, Justice.

May 22, 1957.

On December 30, 1944, Montgomery & Crawford, Inc., of Spartanburg, South Carolina, executed and put into effect a profit sharing trust for the benefit of its eligible employees, and appointed the Citizens and Southern National Bank of South Carolina as trustee. Under the terms of the said profit sharing trust agreement the company agreed to contribute certain funds to be paid into the hands of the trustee for distribution among its eligible employees. As of March 16, 1950, approximately $112,000.00 had accumulated in the trust fund. In the early part of the year 1950 Montgomery & Crawford, Inc., was succeeded by another corporation known as Montgomery & Crawford Company, Inc. The original profit sharing trust agreement provided for the appointment by the company of an "Administrative Committee". The agreement also provided that the trustee should control and manage the trust fund, invest and reinvest the same together with the income thereof. The agreement also provided for the distribution of benefits to the participants upon the conditions stated in the profit sharing agreement. Certain benefits were provided for the employees who continued in the service of the employer creating, or the successor thereto, of the trust fund. The agreement also provided for benefits to employees who severed their connection with the creator of the profit sharing trust, upon condition that such employees do not enter into or operate any business considered competitive in nature with that of the creator of the profit sharing trust. It also provided for a forfeiture of such benefits in the event of a termination of employment and entry into a competitive business to that of Montgomery & Crawford, Inc.

It appears from the record that in March, 1950, the original trust agreement was amended so as to absolve the trustee of all responsibility concerning the nature or financial status touching investments held by the trust. It also appears that the change in the personnel of the "Administrative Committee" in charge of the trust was made with the power to such new committee to practically administer the trust and give instructions as to investments. It further appears that on March 16, 1950, acting through this new committee, the Citizens and Southern National Bank of Spartanburg, South Carolina, was relieved as trustee, and Bank for Savings & Trusts was appointed as such, requiring in the same action that the original trustee liquidate its investments.

It appears that on July 9, 1952, an action was commenced in the Court of Common Pleas for Spartanburg County, South Carolina, by Bank for Savings and Trusts, as trustee under the profit sharing trust for employees of Montgomery & Crawford Company, Inc., the Administrative Committee of the profit sharing trust and Montgomery & Crawford Company, Inc., as plaintiffs, against Wallace S. Towe, individually and as a representative of former employees of Montgomery & Crawford, Inc., as a class, and against Leon Kingsley, individually and as a representative of the present employees of Montgomery & Crawford Company, Inc., as a class, as defendants. The complaint alleged that certain questions and disputes had been raised by former employees as to the validity and operation of the provisions of the profit sharing trust insofar as it applied to employees who had terminated their employment and entered into a competitive business. It is further alleged that disputes have arisen as to other provisions of the trust which provide that employees have no vested or legal right to the corpus thereof. We quote several allegations of the complaint:

"6. That the said Trust instrument provides (Article VIII, Section 6) that the provisions of the Agreement and Trust shall be construed, administered and enforced according to the laws of the State of South Carolina and that the Trustee may institute any legal action or proceeding for the settlement or determination of any question or construction which may arise under or out of said Trust Agreement.

"10. That in addition to the claim and demand of the defendant, Wallace D. Towe, there have been other claims by former employees of Montgomery & Crawford Company, Inc., who have entered into competitive businesses to that of their former employer.

"11. That in order to avoid a multiplicity of suits by former employees and in order to determine the validity and effect of the particular provisions of the said Trust, it is necessary and desirable that this Court by its declaratory judgment fix and determine the obligations and duties of the Trustee and the Administrative Committee under the disputed provisions of the said Trust, and any other questions of law that may arise in this action as to the operation, effect and meaning of the terms of the said Trust."

The plaintiffs seek by the foregoing action the determination of whether a former employee of Montgomery & Crawford Company, Inc., whose employment had been terminated and who enters into a competitive business to that of his former employer, forfeits the benefits provided under the profit sharing trust; and whether the decision and determination of the Administrative Committee of the profit sharing trust is final and binding upon all persons concerned. It thus appears that this action is brought under the provisions of the "Uniform Declaratory Judgments Act", which is contained in Sections 10-2001 to 2014, inclusive, of the 1952 Code of Laws of South Carolina. The record shows that T. Sam Means, Jr., was Attorney for the plaintiffs.

Wallace S. Towe filed an answer to the foregoing action asserting that he was a beneficiary of the profit sharing trust and that he should be awarded his share of the earnings and profits from the trust funds. The action was referred to the Master of Spartanburg County, who held references and found that Wallace S. Towe was entitled to the benefits under the trust agreement and recommended that "the suit should be left open for the benefit of the class similarly situated as is Wallace S. Towe." The Master's report was confirmed by an Order of the Honorable J. Henry Johnson, the then presiding Judge of the Seventh Judicial Circuit, who concluded his order by likewise leaving the suit open for the benefit of the class of claimants similarly situated to that of Wallace S. Towe. It appears that Notice of Intention to Appeal to this Court from the Order of Judge J. Henry Johnson was given but that on January 7, 1956, an Order was passed dismissing the appeal for want of perfection. Therefore, the provision which left the suit open for the benefit of the class situated as was Wallace S. Towe became the law of the case, and this Court is bound by it. Erwin v. Patterson, 229 S.C. 188, 92 S.E.2d 464; Meyerson v. Malinow, S.C., 97 S.E.2d 88.

It appears that after the original action was brought that Sidney Lee Steele, Leurena G. Bridwell, J.R. Anthony, John Cart, Ladd Alexander, Thomas Smith, and possibly others, all former employees of the creator of the trust, filed a petition to intervene in the said cause for the purpose of setting up their claims and rights to participate in the profit sharing trust fund, each of said parties claiming to be similarly situated as was Wallace S. Towe. These parties were permitted to intervene and their claims were established in said action. All of these parties were permitted to intervene, they being former employees of Montgomery & Crawford, Inc. and who had been denied benefits under the profit sharing trust because of anti-competition provisions of the instrument. The record shows that their petitions and answers were served on T. Sam Means, Jr., Attorney for the plaintiffs in the declaratory judgment action. The record does not reveal any objection on the part of the plaintiffs to the service being so made.

On August 30, 1956, Lucille P. Gallman, individually and as representative of all others similarly situated who may share in the benefits and burdens of her intervention, filed her petition in the Court below, praying that she be allowed to intervene in the original action and that her petition be declared her answer. She asks that the court not only permit her to intervene but to restrain and enjoin the plaintiffs from paying out any of the trust assets during the pendency of the action; that they be required to give a full and complete accounting of all their acts and doings with a disclosure of the relation of the officers of the trust to that of the trustee; that they be required to give an explanation why the trust fund was moved from the State of South Carolina to the State of Alabama and the trustee exonerated from any duty in selecting investments; that they be required to give a complete itemization of their acts and doings in relation to expenditures and disbursements from the profit sharing fund; that they be required to return the funds to the State of South Carolina and place the same in the hands of a trustee to be designated by the Court, or failing therein, that a receiver be appointed by the Court, and in either event that the trust funds be administered under the control and supervision of the Court; that all persons, firms or corporations having any claim to the fund be required to prove such in this action. The foregoing petition, temporary restraining order and rule to show cause were served upon T. Sam Means, Jr., the Attorney for the plaintiffs in the original action.

At the time fixed for the hearing, the plaintiffs made a special appearance asserting that the court below had not acquired jurisdiction of the plaintiffs by the service aforesaid on T. Sam Means, Jr., Attorney. They assert that the process should have been served on plaintiffs personally.

It also appears that the intervener gave notice that she would move to amend her petition of intervention by alleging that she was a former employee now in a competing business, similarly situated as Wallace S. Towe. It appears that the intervener at the time of the commencement of the original action belonged in the class of Leon Kingsley, a then present employee of Montgomery & Crawford Company, Inc.

Honorable Bruce Littlejohn did, by his Order dated November 5, 1956, overrule the special appearance of the plaintiffs and their objections to jurisdiction. He also permitted the proposed intervener to amend her petition as requested. He also directed the plaintiffs to show cause before him on November 17, 1956, why the petitioner should not be allowed to intervene in the action, have her petition accepted as her answer, and why the temporary restraining order should not be continued, pendente lite. This last hearing was not held for the reason that the plaintiffs served notice of intention to appeal to this Court, and an order of supersedeas, dated November 15, 1956, staying all further proceedings in the Common Pleas Court for Spartanburg County, S.C. until the determination of this appeal, was granted.

The plaintiffs below are the appellants here. By appropriate exceptions they challenge the rulings of the court below and raise the questions: (1) Was it proper for the court to allow an amendment of the petition of the respondent at the hearing of only the jurisdictional questions? (2) Did the court below acquire jurisdiction of the appellants in this proceeding, the service of process having been made upon the Attorney of record for the appellants, rather than on the appellants personally? (3) ...


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