APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from a judgment for defendant notwithstanding the verdict of the jury in his favor.
Plaintiff, a retired employee of Howell Company, brought this action against Interlake Steel Corporation, successor to his employer, and the Continental Bank, as trustee of Interlake's retirement plan, seeking both a declaratory judgment that he was covered by Interlake's retirement plan for salaried employees and damages in the amount of all pension installments theretofore due him under the plan. A second count based on promissory estoppel was dismissed without objection of plaintiff at the close of plaintiff's evidence in chief.
At the close of all the evidence, the only issue submitted for determination by the jury was in the form of a special interrogatory as to whether plaintiff was a "salaried employee" within the meaning of the retirement plan. The jury answered "Yes." The trial judge, however, allowed defendants' motion for judgment notwithstanding the verdict for plaintiff, and conditionally denied defendants' motion for a new trial.
Plaintiff appeals, urging that the trial court erred in entering judgment notwithstanding the jury's verdict.
The evidence shows that Wolyn was hired by the Howell Company on September 1, 1945. He continued thereafter as a full-time employee of Howell, even subsequent to its acquisition by Acme Steel Company, until January, 1963, five months after he reached his 65th birthday.
By virtue of a merger with Acme in 1964, defendant Interlake Steel Corporation succeeded to Acme's obligations under the latter's pension plans. Plaintiff claims to be entitled to benefits under Acme's "Howell Company Retirement Plan B." This plan includes in its coverage those who were participants under its predecessor, "Acme Steel Employees Retirement Plan B."
The predecessor plan provided that "A Participant who retires on or after his normal retirement date shall be eligible to receive a normal retirement benefit, which is a monthly benefit payable for life. The term "Participant" includes "Any present or future employee who is regarded by the Employer as a permanent salaried employee * * * if, on [November 1, 1955], he has completed at least one (1) year of continuous service and is not more than age sixty (60) years and six (6) months, nor less than age twenty-nine (29) and six (6) months * * *." (Emphasis added.) Defendants have conceded that plaintiff was a permanent employee who met the age and service requirements. But they point out that except for the first four months of his employment, when he received a fixed amount as compensation, Wolyn was paid each month in an amount equal to five per cent of his monthly sales; and that such payments are ordinarily considered commissions and not salary, citing Commonwealth Life & Accident Insurance Co. v. Board of Review of the Department of Labor, 414 Ill. 475, 484-5, 111 N.E.2d 345.
The only issue, then, is the one submitted to the jury: whether Wolyn was "regarded by the Employer as a permanent salaried employee," so as to be covered by the plant. The parties agree that the classification scheme of this particular employer and not that of industry generally should control the outcome.
• 1 In considering plaintiff's appeal, we must determine whether "all of the evidence, when viewed in its aspect most favorable to the [plaintiff], so overwhelmingly favors [defendant] that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504.) We are reminded that all evidence must be considered; "the presence of some evidence of a fact which when viewed alone may seem substantial, does not always when viewed in the context of all the evidence, retain such significance." Pedrick, at 505.
A study of the evidence will show that plaintiff's evidence, while having some weight, is insignificant in the context of the evidence as a whole.
Testimony of Lawrence Allison
Lawrence T. Allison was employed by Howell from 1953 to 1970 as controller and then as vice president. It was his responsibility to handle all financial matters at the Howell Division level of the Acme Steel Company, including salaried payroll, the computation of commissions earned by commissioned salesmen, and pension plans. Allison testified that Howell had two classifications of salesmen: salaried and commissioned. He stated that plaintiff was classified as a commissioned employee, that commissioned employees were never covered by the plan, and that the commissioned salesmen were the only employees who were not covered by the plan.
Allison was required to submit annually a list that contained the names of active employees covered by the pension plan and the names of retired employees who were on a pension. Plaintiff's name was never on one of these lists, nor were the names of two other commission employees who retired without pensions. The lists were submitted to actuaries who determined each year the amount of contributions necessary for the company to ...