APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
J. O'BRIEN, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
This appeal arises out of an amended third-party complaint filed by Jacob Shaw, defendant and third-party plaintiff, against Cigarette Service Company, Shaw's former employer and third-party defendant, to recover overtime compensation allegedly due Shaw as an employee. The amended complaint consisted of two counts. Count I was based on the terms of a collective bargaining agreement between the defendant and its employees. The second count was based on the Fair Labor Standards Act. Pursuant to Cigarette Service Company's motion, the trial court ordered that both counts of the amended third-party complaint be dismissed. Shaw now appeals only from that part of the order dismissing count I of the amended third-party complaint.
Shaw contends that the trial court erroneously dismissed count I of the amended complaint because it stated a cause of action and because there existed a question of fact which Shaw was entitled to have decided by jury in accord with his jury demand.
We reverse in part and remand.
Shaw alleged in relevant part in count I of his verified amended third-party complaint that from July of 1974 to November of 1975 he was employed by Cigarette Service Co. as a vending machine route serviceman at an hourly salary of $5.95 per hour through October 4, 1975, and $6.60 per hour through November 4, 1975; that during the entire period of defendant's employment, the terms of such employment were governed by a contract between Cigarette Service and the labor union of which defendant was a member; that a provision of the contract provides that "all work performed by hourly employees in excess of eight hours per day, or forty hours per week, shall be paid for at the rate of time and one-half the regular hourly rate"; and that defendant, with the exception of one week during the entire period of his employment, worked 60 hours per week. Count I of the amended third party complaint goes on to allege that Cigarette Service owes Shaw $12,017.50 in overtime pay.
Pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48), Cigarette Service filed a motion to dismiss the third-party complaint. In its motion to dismiss, Cigarette Service alleged that Shaw was hired pursuant to article VIII of the agreement with Shaw's union and was a commission employee who was not entitled to overtime compensation. Attached to the motion was a copy of article VIII which provides in part:
"WAGES Effective November 14, 1971, the following commission rates shall be paid to servicemen who are paid on a commission rate basis instead of an hourly rate. Servicemen who were paid on a commission rate basis prior to October 1, 1969, shall continue to receive commission pay.
Servicemen who were paid on an hourly rate basis prior to October 1, 1969, shall have the option of choosing with agreement of Employer to be paid commission rather than the hourly rates provided that once a serviceman has chosen to be paid commissions he shall continue to be paid commissions and cannot revert back to hourly rate of pay, after sixty (60) days."
Also attached to the motion to dismiss was the affidavit of Stephen Bloom, the president of Cigarette Service. That affidavit states that during Shaw's period of employment with Cigarette Service, Shaw was employed as a commission employee pursuant to the labor contract and that Shaw's compensation, as well as that of all servicemen hired after October 1, 1969, was determined on a commission basis in accordance with article VIII of the contract.
Shaw filed a response to the motion to dismiss to which he attached his own affidavit. That affidavit states that during Shaw's period of employment with Cigarette Service he was employed as an hourly paid vending machine route serviceman; that during the entire time of that employment, Shaw, although not required, was permitted to sell merchandise on commission; that when he did sell merchandise, commissions became due him in addition to his hourly earnings; that when he did not sell merchandise, he was entitled to only his hourly salary; and that the statement in Stephen Bloom's affidavit that Shaw's entire salary was determined on a commission basis, was untrue.
The trial court, after considering the pleadings and above affidavits, dismissed the third-party complaint with prejudice. Shaw contends that the trial court erred in this ruling because count I of the third-party complaint stated a cause of action and there existed a genuine issue of fact which he was entitled to have decided by a jury.
The motion to dismiss the amended third-party complaint was made pursuant to subsection 1(i) of section 48. That subsection states:
"(1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
(i) That the claim or demand asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim or demand." (Ill. ...