author: MR. JUSTICE UNDERWOOD

text:
    (No. 50693.
    FINISH LINE EXPRESS, INC., et al., Appellees, v. THE CITY OF CHICAGO et al.— (William J. Scott, Attorney General, Appellant.)

      Opinion filed July 14, 1978.

      William J. Scott, Attorney General, of Springfield (Fred F. Herzog, Special Assistant Attorney General, Paul J. Bargiel, Patricia Rosen, Gregory Lawton, Robert G. Epsteen, and William Lyle Perlman, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Feiwell, Galper & Lasky, Ltd., and Block, Levy & Becker, of Chicago (George S. Feiwell, Michael A. Braun, Daniel C. Meenan, Jr., Alvin R. Becker, and Edward A. Scott III, of counsel), for appellees.
    Edward M. White, of Chicago, for amici curiae Arlington Park — Washington Park Race Tracks Corp., Estate of Thomas Carey, d/b/a Hawthorne Race Course, National Jockey Club, Balmoral Racing Club, Suburban Downs, Inc., Chicago Downs Association, Inc., Fox Valley Trotting Club, Inc., and Maywood Park Trotting Association.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiffs, corporations operating businesses commonly called racetrack-messenger services, brought this action in the circuit court of Cook County challenging the constitutionality of section 39.1 of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1977, ch. 8, par. 37 — 39.1), which makes it a felony to accept, for a fee, money to be delivered to a racetrack for wagering on horse races. The circuit court dismissed plaintiffs’ complaint for failure to state a cause of action, but the appellate court reversed (59 Ill. App. 3d 419), finding that the plaintiffs’ right to engage in business was unconstitutionally restrained and that “the proper remedy for the legislature would be to regulate the activities of these messenger services to be sure they operate within the framework of the Illinois Horse Racing Act, not to prohibit their operation” (59 Ill. App. 3d 419, 424). We granted the Attorney General leave to appeal and we now reverse the appellate court.

A preliminary question relates to the plaintiffs’ motion to strike the Attorney General’s brief or the references therein to a 1977 Legislative Investigating Commission Report to the Illinois General Assembly entitled “Race Track Messenger Services.” Plaintiffs contend that this report is not a part of the record and cannot be utilized by counsel nor considered by this court.

The report in question is the product of the Illinois Legislative Investigating Commission, an agency created by the General Assembly. One of the primary functions of the Commission is “to conduct investigations *** on any matter upon which the General Assembly may legislate.” (Ill. Rev. Stat. 1977, ch. 63, par. 301.) The report was prepared in response to Senate Resolution 447 adopted December 2, 1976, pertinent portions of which are as follows’

“WHEREAS, There has recently been established in the State of Illinois messenger services which relay bets to race tracks; and
WHEREAS, These services have reduced or may have a tendency to reduce attendance at the licensed race tracks in Illinois; and
WHEREAS, Reduced attendance at the licensed race tracks and racing meets reduces revenues to concessionaires and race meet operators licensed by the State of Illinois and as a result reduces revenues to the State of Illinois and municipalities in the vicinity of such race tracks; and
WHEREAS, There has occurred a drop in revenues to the State of Illinois; therefore, be it
RESOLVED, BY THE SENATE OF THE SEVENTY-NINTH GENERAL ASSEMBLY OF THE STATE OF ILLINOIS, that the Illinois Legislative Investigating Commission is directed to investigate such messenger services and any other activity, and their legality together with any fiscal impact on the revenues of State and Local Governments of such messenger services or other activities; and be it further
RESOLVED, That the Illinois Legislative Investigating Commission report the results of its investigations together with any recommendation or proposed legislation to the Illinois General Assembly no later than February 15, 1977; and be it further
RESOLVED, That a copy of this preamble and resolution be transmitted forthwith to the Illinois Legislative Investigating Commission to the end that this investigation may begin forthwith.”

We do not understand plaintiffs to contend that the Commission’s report is not a public record, and we think it clearly is. (See Ill. Rev. Stat. 1977, ch. 116, par. 43.103.) Judicial notice may be taken of such public records. (Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 94.) Additionally, in Moran v. Bowley (1932), 347 Ill. 148, this court held that legislative debates may be considered to determine “the history of the times or of the evil which the legislation was intended to remedy.” (347 Ill. 148, 155.) Similarly, the Legislative Investigating Commission Report is informative of the circumstances and problems which prompted the General Assembly to exercise its police power and adopt the challenged statute. Accordingly, the motion to strike the Attorney General’s brief, or the references therein to the report, is denied.

At the time of the report, in March 1977, there were nearly 400 racetrack-messenger services operating in the Chicago area. Such services are operated ostensibly as follows. At locations away from the track and convenient to their patrons, plaintiffs accept money from bettors who direct plaintiffs to purchase a certain ticket in the parimutuel pool at an area racetrack. The bettor is charged 10% of the cost of the ticket for this service. Plaintiffs then take the bettor’s money to the track and buy the tickets which were ordered. If the ticket wins, plaintiffs return either the cash payout or the winning ticket to the bettor.

It would seem that plaintiffs’ activities, as outlined above, might well be considered unlawful under the gambling provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 28 — 1 et seq.) as well as the Horse Racing Act of 1975, which does not permit any parimutuel or certificate wagering except as provided therein. Section 26 provides:

“(a) Any organization licensee conducting a horse race meeting may provide places in the race meeting grounds or enclosure and may conduct and supervise therein the pari-mutuel or certificate system of wagering by patrons on the horse races conducted by such organization licensee at such meeting. ***
(b) No other place or method of betting, pool making, wagering or gambling shall be used or permitted by the organization licensee, nor shall the pari-mutuel or certificate system of wagering be conducted on any races except horse races at the race track where such parimutuel or certificate system of wagering is conducted.” (Ill. Rev. Stat. 1977, ch. 8, par. 37-26.)

Indeed the original complaint in this cause sought to enjoin prosecution of pending and threatened criminal gambling charges and a declaratory judgment that plaintiffs’ messenger services violated no law. Prior to resolution of those issues, however, the General Assembly enacted the amendment here challenged, and plaintiffs’ complaint was amended to include a count asserting the invalidity of the amendment, which provides as follows:

“(a) No person shall, for a fee, directly or indirectly, accept anything of value from another to be transmitted or delivered for wager in any pari-mutuel or certificate system of wagering on horse races. Nothing in this Section prohibits wagering transactions authorized under this Act.
(b) Any person who violates this Section is guilty of a Class 4 felony.” Ill. Rev. Stat. 1977, ch. 8, par. 37-39.1.

We hold that this statute violates no constitutional right of plaintiffs and is clearly within the police power of the legislature.

It is undisputed that gambling is an activity which is subject to regulation or to complete prohibition. (Booth v. People (1900), 186 Ill. 43, aff’d (1902), 184 U.S. 425, 46 L. Ed. 623, 22 S. Ct. 425; Pelouze v. Slaughter (1909), 241 Ill. 215.) Although plaintiffs and the appellate court assert that regulation is more appropriate than prohibition, it is not the function of the judiciary to pass upon the wisdom of legislative action. (Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 279.) Both houses of the General Assembly passed this amendment unanimously after the Illinois Legislative Investigating Commission reported a long list of serious and widespread problems with the messenger services, including booking of bets without buying the corresponding parimutuel tickets, failure to pay off winners, involvement of organized crime, and a reduction in track attendance and betting with a corresponding loss of local and State revenue. “To be a valid exercise of the police power, the enactment of the legislature must bear a reasonable relation to the public interest sought to be protected, and the means adopted must be a reasonable method to accomplish such objective. [Citations.] ” (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 327.) In view of the reported problems, it cannot fairly be said that the legislature acted unreasonably in prohibiting the racetrack-messenger services from charging a fee rather than attempting to regulate those activities.

Plaintiffs contend that the business of delivering money and a message indicating what is to be done with the money is not immoral in itself but is an “innocent and harmless” activity the prohibition of which is an unreasonable infringement of their right to conduct a legitimate business. We disagree.

“A calling may not in itself be immoral, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the State thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law.” (Booth v. Illinois (1902), 184 U.S. 425, 429, 46 L. Ed. 623, 626, 22 S. Ct. 425, 427.) Running bets is not a right secured by fundamental law irrespective of whether it is a violation of the Criminal Code.

As we noted earlier, the report of the Legislative Investigating Commission indicated that many of the messenger services book some of the bets themselves or book them with an illegal wire room, causing a substantial decrease in the total bets handled at the tracks and a corresponding loss of privilege-tax revenue. In addition the State suffers from the activities of those messenger services which actually take the bets to the track, for bettors need no longer attend the track in order to wager. Not only does admissions-tax revenue decline, but there is a reduction in the total bets and the tax revenue because, the report indicates, winning bettors, not being present at the track, cannot wager their winnings as many would otherwise do. These problems alone justify the legislative action here challenged since it is clear that the State may utilize its police power to protect its sources of revenue and assure collection of taxes. Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323.

Even if racetrack-messenger services were operated without a hint of impropriety and even if we were to accept the doubtful proposition that these services do not constitute gambling itself, it is obvious that plaintiffs’ business is completely intertwined with gambling and could not exist without it. As such, plaintiffs’ business is within the State’s plenary police power to regulate gaming activity. It is well within the authority of the State of Illinois to limit gambling on horse races to those who are at the track betting for themselves or betting for others only as a courtesy and not for a fee. In essence, this statute is part of the State’s regulatory plan for limited gambling, and we find nothing in the Illinois or Federal constitutions which prevents its enactment or enforcement of such a statute.

The judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

license: Public Domain

text:
    (Nos. 49672, 49674 cons.
    ARTHUR J. COURT, Appellee, v. FELIX GRZELINSKI, JR., et al. — (Nickey Chevrolet Sales, Inc., et al., Appellants.)

      Opinion filed July 14, 1978.

      RYAN, J., WARD, C.J., and UNDERWOOD, J., dissenting.
    Pretzel, Stouffer, Nolan & Rooney, Chartered, of Chicago (Joseph B. Lederleitner and Robert Marc Chemers, of counsel), for appellant Nickey Chevrolet Sales, Inc.
    Forrest L. Tozer, Michael Davis, and Richard E. Mueller, of Lord Bissell & Brook, of Chicago (Frazer F. Hilder, of Detroit, of counsel), for appellant General Motors Corporation.
    Horwitz, Anesi, Ozmon & Associates, Ltd., of Chicago (Nat P. Ozmon and Mark Novak, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The plaintiff, Arthur J. Court, brought an action in the circuit court of Cook County against defendants, Felix Grzelinski, Jr., Nickey Chevrolet Sales, Inc., and General Motors Corporation. He seeks recovery for injuries sustained while fighting a fire which erupted in a vehicle owned by Grzelinski, sold in used condition by Nickey and manufactured by General Motors. Count I of plaintiff’s fourth amended complaint is predicated upon Grzelinski’s negligence in keeping containers of a highly flammable substance hidden from view in the vehicle. Count II jointly charges Nickey and General Motors in a strict liability action arising out of the explosion of the vehicle’s gasoline tank.

On motions duly filed and consolidated, the trial court denied Grzelinski’s motion to dismiss count I and, pursuant to the holding in Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. App. 3d 546, sustained Nickey’s and General Motors’ motions to dismiss count II. The trial court having expressly found no just reason for delaying enforcement or appeal of the order of dismissal, the plaintiff, pursuant to Rule 304(a) (58 Ill. 2d R. 304(a)), appealed the dismissal of count II. The appellate court reversed the trial court, holding that count II properly states a cause of action in strict liability against Nickey and General Motors for the injuries which plaintiff sustained while fighting a fire in the course of his employment. (48 Ill. App. 3d 716.) We granted leave to appeal to Nickey and General Motors (defendants).

The issues presented for review are: (1) Does plaintiff’s complaint properly plead that defendant Nickey, a used car dealer, created the alleged defects in the vehicle’s gasoline tank? and (2) Is a duty in products liability owed to a fireman for injuries incurred while fighting a fire in the course of his employment?

During pretrial discovery it was ascertained that on May 26, 1972, plaintiff, a firefighter for the city of Chicago, responded, along with other firemen, to a call of an automobile fire on south Harding Avenue in Chicago. As plaintiff attached the fire hose to a hydrant approximately 35 feet from the vehicle (a 1969 Chevrolet Malibu), an explosion caused ignited gasoline to be spewed from the vehicle’s gas tank onto the plaintiff. As a result, plaintiff sustained severe bums, externally and intemally.

Defendant Nickey asserts that plaintiff’s complaint is deficient in that it fails to plead that the alleged defects in the vehicle’s gasoline tank were created by Nickey. Nickey relies on Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill. 2d 17, in which this court held that a plaintiff fails to state a cause of action against a used car dealer in products liability if he does not allege that the defects were created by that dealer. There, the plaintiff had failed to allege either that the defects existed when the product left the control of the manufacturer or that the defects were created by the used car dealer. The instant complaint, however, includes allegations that the gasoline tank was defectively designed by the manufacturer, thereby creating a “high degree of risk that [it] would explode,” and that the tank was defectively assembled, installed and positioned by Nickey in that no adequate devices were used which would prevent the tank from exploding. At this stage of the proceedings, all well-pleaded allegations of the complaint must be taken as true. To the extent that plaintiff alleges that the defects were created not only by the manufacturer, but also by work defectively done by Nickey, his complaint satisfies the requirements of Peterson. See Realmuto v. Straub Motors, Inc. (1974), 65 N.J. 336, 344, 322 A.2d 440, 444.

It is essential to this appeal that we determine if a fireman can recover in products liability for injuries incurred while fighting a fire in the course of his employment. Defendant General Motors has correctly reasoned that the case turns on the question of “duty.” Generally, in tort law, “duty” is the legal standard of conduct owed by one person to another. In the products liability context, a legal duty is imposed upon those involved in the original production and marketing chain of a product to the benefit of those individuals “to whom injury from a defective product may reasonably be foreseen.” (Winnett v. Winnett (1974), 57 Ill. 2d 7, 11.) We have held that, in products liability, such individuals are not only those within classes of users and consumers, but may include persons (such as the innocent bystander) outside the purchasing chain of the product. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 11-13.) Whether a particular fireman fighting a fire in the course of his employment is a person to whom injury from a defective product may reasonably be foreseen is ordinarily an issue of fact to be resolved not by the court, but by a jury.

Nevertheless, defendants maintain that firemen are a special class of plaintiff to whom no duty is owed, even if injury to them may reasonably be foreseen, because risk of harm resulting from fire (and consequent explosion) is inherent in the occupation for which they are trained and paid. Defendants’ thesis, commonly known as the “fireman’s rule,” is founded in negligence and derives from numerous cases, in this and other jurisdictions, which rest on two distinguishable propositions. The more common of the two propositions is that a landowner or occupier owes no duty of care to firemen to prevent the fire which necessitated their presence on the premises. The other proposition is that a fireman cannot recover from any defendant for any injury resulting from those risks inherently involved in fire fighting. The former proposition is firmly established in Illinois law. The latter proposition, which actually subsumes the former and extends the “fireman’s rule” to encompass defendants other than landowners or occupiers, is one of first impression in this court.

The “fireman’s rule” originated and developed at a time when the English common law classified the duties of landowners or occupiers according to the status of the persons entering the premises: i.e., trespassers, licensees or invitees. At first, firemen who entered the premises in the discharge of their duties were designated “licensees” to whom landowners or occupiers owed no greater duty than to warn of known concealed dangers and to refrain from inflicting willful or intentional injury. (Gibson v. Leonard (1892), 143 Ill. 182, 190, overruled in Dini v. Naiditch (I960), 20 Ill. 2d 406, 417; Prosser, Torts, sec. 60 at 376-382 (4th ed. 1971); 1 J. Dooley, Modern Tort Law secs. 19.01, 19.07, at 375, 387 (1977).) Later courts, recognizing the harshness of this classification, reclassified firemen as “invitees” to whom landowners or occupiers owed a duty of ordinary care to keep the premises safe. (Clinkscales v. Mundkoski (1938), 183 Okla. 12, 79 P.2d 562.) Finally, in 1960, this court rejected the common law classifications as applied to firemen, and held that landowners or occupiers owed a duty of reasonable care to maintain their property so as to prevent injury to firemen “rightfully on the premises, fighting the fire at a place where [they] might reasonably be expected to be.” (Dini v. Naiditch (1960), 20 Ill. 2d 406, 417.) Thereafter, this court and numerous appellate courts interpreted the Dint case to impose a duty of reasonable care on landowners or occupiers to prevent injury to firemen which might result from a cause independent of the fire, but no duty to prevent injury resulting from the fire itself. Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 108; Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. App. 3d 546, 549; Young v. Toledo, Peoria & Western R.R. Co. (1977), 46 Ill. App. 3d 167, 169.

This distinction evolved for two mutually supportive reasons. First, since most fires occur because of the negligence of the landowner or occupier, it was believed that the imposition of a duty to prevent fires from occurring or spreading on a person’s premises would place an unreasonable burden upon the person who owned or occupied improved land. (Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 108;Horcher v. Guerin (1968), 94 Ill. App. 2d 244, 248.) This public policy consideration, however, tended to undermine the general duty imposed upon landowners or occupiers to exercise reasonable care to keep their premises safe. A compromise was reached with regard to firemen, recognizing that the risk of harm from fire is inherent in a fireman’s occupation. This compromise was believed to provide a necessary social balance between the absolute possessory control of land and the duty of reasonable care to firemen whose public responsibility summons them to the premises. As is apparent, this version of the “fireman’s rule” rests not merely upon a recognition that certain risks are normally expected in fire fighting, but upon a policy consideration limiting the duty of landowners or occupiers.

Defendants attempt to extend the “fireman’s rule” beyond its limited context of landowner/occupier liability. The rule cannot be expanded to a free-floating proposition that a fireman cannot recover for injuries resulting from risks inherently involved in fire fighting. To do so would be tantamount to imposing the doctrine of assumption of risk onto the occupation of fire fighting and would be directly contrary to the limited concept of assumption of risk in Illinois. In negligence actions, assumption of risk is confined to those situations involving persons who have a contractual or employment relationship with the defendant. (See Barrett v. Fritz (1969), 42 Ill. 2d 529, 534; Sweeney v. Matthews (1968), 94 Ill. App. 2d 6, 18-20.) In products liability actions such as this, assumption of risk is a bar to recovery only if the plaintiff is aware of the product defect and voluntarily proceeds in disregard of the known danger. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 426; Restatement (Second) of Torts sec. 402A, comment n, at 356 (1965).) In either case, assumption of risk is an affirmative defense interposed against a plaintiff who voluntarily exposes himself to a specific, known risk, not a preclusion of recovery against a plaintiff whose occupation inherently involves general risks of injury.

Defendants cite two California appellate court decisions which have approved the broad proposition that a fireman cannot recover for injuries resulting from risks inherently involved in fire fighting. (Giorgi v. Pacific Gas & Electric Co. (1968), 266 Cal. App. 2d 355, 72 Cal. Rptr. 119; Scott v. E. L. Yeager Construction Co. (1970), 12 Cal. App. 3d 1190, 91 Cal. Rptr. 232.) In the earlier of the two decisions, the court cited two cases which had applied the “fireman’s rule” in situations outside the limited context of landowner/occupier liability. (See Clark v. Boston & Maine R.R. (1917), 78 N.H. 428, 431-32, 101 A. 795, 797; Chesapeake & Ohio Ry. Co. v. Crouch (1968), 208 Va. 602,608-09, 159 S.E.2d 650, 655.) Although both those cases expressly based their holdings on the doctrine of assumption of risk, the California court disclaimed reliance on that doctrine. Instead, it based its holding on two asserted policy considerations — risk spreading and efficient judicial administration — which have since become the subject of criticism. See Moss, An Examination of The California Fireman’s Rule, 6 Pac. L.J. 660 (1975).

Risk spreading is based upon the rationale that the cost of injuries to fire fighters should be distributed among the community at large rather than be imposed upon the party responsible for the injuries. Such policy would apply regardless of whether injury to a fireman resulted from the fire itself or from causes independent of the fire. To the extent that, in Illinois, a fireman may recover from a landowner or occupier for injuries resulting from causes independent of the fire, Illinois has failed to recognize risk spreading as a proper basis for denying recovery to firemen.

California would also preclude recovery by firemen because of the potential problems and lengthy trials that might arise with the need for a judicial determination on the cause of a fire. We find this policy consideration unpersuasive for two reasons. First, Illinois law requires that every fire, by which property has been destroyed or damaged, be investigated as to its cause, origin and circumstances. (Ill. Rev. Stat. 1975, ch. 127 ½, par. 6.) More importantly, courts may not compromise their basic responsibility to decide the merits of each case merely because it would be administratively convenient to sweep away a class of plaintiffs whose claims may be difficult to adjudicate.

Moreover, the limitation on the duty of landowners or occupiers with respect to fires occurring on their premises has no application in a products liability action. Mr. Justice Traynor, in his renowned concurrence which presaged the acceptance of the doctrine of products liability, stated that “public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.” (Escola v. Coca Cola Bottling Co. (1944), 24 Cal. 2d 453, 462, 150 P.2d 436, 440; accord Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 618-19.) In furtherance of this public policy, a legal duty is imposed upon those responsible for creating a defective product in favor of any person to whom injury from the product may reasonably be foreseen. It would serve no societal interest to limit this duty by carving out of the class of such persons a subclass of firemen to assume the undue risks of injury inherent in defective products. We therefore hold that, to the extent a fireman is a person to whom injury from the product may reasonably be foreseen, he may recover in products liability, even though his injury was incurred while fighting a fire in the course of his employment. In so holding, we reject the opportunity to extend the “fireman’s rule” beyond its limited context of landowner/occupier liability.

For the reasons stated herein, we affirm the judgment of the appellate court and remand the cause to the trial court for proceedings consistent with this opinion.

Affirmed and remanded.

MR. JUSTICE RYAN,

dissenting:

I must dissent from the majority opinion for two reasons. First, it misconceives and misapplies the “fireman’s rule” as previously defined in this State and as followed in “virtually every other jurisdiction in which the question has been considered. ” (Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 108.) And, second, the opinion extends the doctrine of strict products liability beyond the limits heretofore recognized by this court.

The majority attempts to tie the fireman’s rule as it has been defined in this State to the common law duties of landowners or land occupiers as determined by the status of various classes of persons upon the premises. The present-day fireman’s rule in this State and in most other jurisdictions is in no way related to the duty of the landowner or land occupier as determined by the status of the persons upon the premises. That concept was abandoned by this court in Dini v. Naiditch (1960), 20 Ill. 2d 406, where the general negligence principle (duty to use reasonable care) was applied as to firemen. In Washington v. Atlantic Richfield Co. this court, after reviewing appellate court applications of the Dini decision, held that while the landowner owes a duty of reasonable care to maintain his property so as to prevent injury to the firemen from causes independent of the fire, he is not liable for negligence in causing the fire. This further refinement of the duty to firemen as announced in Dini was necessitated by an attempt in Washington to extend the duty to use reasonable care as to firemen beyond the factual pattern of Dini.

It is true that many of the cases in this State and elsewhere in discussing the fireman’s rule refer to the duty of the landowner or land occupier to the firemen. This is done, of course, because the persons sued in those cases are the landowners or land occupiers and therefore the court must discuss the duty that the defendant owes to the firemen injured. In deciding those cases, however, the court does not consider the case in the light of a special preferential status enjoyed by the defendant simply because he owns or occupies the premises. Recovery was denied to the plaintiff in Washington not because the defendant was a landowner but because the risk that the plaintiff encountered was one normally associated with the function of his employment. See 66 Ill. 2d 103, 109.

The majority appears to be willing to apply the fireman’s rule only in the “limited context of landowner/ occupier liability.” This implies that the majority would not permit a fireman to recover for injuries he receives in extinguishing a fire in my automobile which I caused by negligently pouring gasoline on the hot manifold if the automobile is parked in my driveway, but that he would be permitted to recover if .my automobile is parked in the street. This appears to me not only to be extremely illogical but also to possibly present some constitutional questions. See Harvey v. Clyde Park District (1964), 32 Ill. 2d 60; Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179.

Also, the majority opinion equates the statement of the general rule that a fireman assumes the risk normally associated with the function of his employment with the affirmative defense of “assumption of risk” in negligence actions or the affirmative defense known as “assumption of risk” in products liability cases. The term “assumption of risk” has been used by courts to cover a wide variety of conduct. As noted in the majority opinion it has one meaning in ordinary negligence actions (see Barrett v. Fritz (1969), 42 Ill. 2d 529) and another in products liability cases (see Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418). The term has recently been used by this court in still another context which may require further judicial refinement before its meaning is fully delineated. (See Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1.) The failure of the term to convey a precise meaning has led to the criticism of its use in negligence actions. (See Barrett v. Fritz.) The majority opinion is in error, however, in equating assumption of risk as used in the fireman’s rule with the affirmative defenses in negligence and products liability cases. Under the fireman’s rule assumption of risk is not an affirmative defense. It, instead, defines the duty that is owed to a fireman. In Krauth v. Israel Geller & Buckingham Homes, Inc. (1960), 31 N.J. 270, 273-74, 157 A.2d 129, 130-31, the Supreme Court of New Jersey stated:

“The rationale of the prevailing rule is sometimes stated in terms of ‘assumption of risk,’ used doubtless in the so-called ‘primary’ sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty. [Citation.] Stated affirmatively, what is meant is that it is the fireman’s business to deal with that very hazard and hence *** he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid.” (Emphasis added.)

The following cases applying the fireman’s rule also consider assumption of risk as determining the question of duty and not as an affirmative defense: Romedy v. Johnston (Fla. App. 1967), 193 So. 2d 487; Buren v. Midwest Industries, Inc. (Ky. 1964), 380 S.W.2d 96; Langlois v. Allied Chemical Corp. (La. App. 1970), 238 So. 2d 41; Clark v. Boston & Maine R.R. (1917), 78 N.H. 428, 101 A. 795; Spencer v. B.P. John Furniture Corp. (1970), 255 Ore. 359, 467 P.2d 429.

While a fireman may not be aware of the exact nature of the danger when he responds to a call for his services, he assumes all of the natural risks that may reasonably be anticipated. He is specially trained to anticipate and to encounter the risks associated with a fire. While he may be able to recover for injuries from unexpected, hidden, or abnormal dangers caused by a defendant or known to a' defendant and not disclosed, he cannot recover for injuries occasioned by dangers which his training and experience would lead .him to reasonably anticipate. It is not important in the application of the fireman’s rule to determine what caused the particular danger which brought about the injury. Of critical importance is whether the particular danger is one that the fireman would anticipate in the performance of his duties. Washington v. Atlantic Richfield Co., Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. App. 3d 546, and Young v. Toledo, Peoria & Western R.R. Co. (1977), 46 Ill. App. 3d 167, all involved injuries received by firemen as the result of explosions, and in each case recovery was denied because one of the reasons for the firemen’s presence was to guard against such a danger. This would also appear to be true in the present case. An exploding gasoline tank is one of the normal hazards associated with an automobile fire. One of the reasons for the firemen’s presence is to guard against such a danger. In the application of the fireman’s rule it is not important to determine what precipitated the explosion, whether it be careless handling of gasoline or an alleged defective or defectively installed gasoline tank. Certainly when a fire is in the known presence of contained gasoline an explosion is a possibility to be anticipated. While the risk of a gasoline tank exploding may not be reasonably anticipated and therefore not assumed by a fireman when called to extinguish a fire in a hay bam or a bmsh fire in a ravine or even a residential fire, it seems to me that it is a most obvious danger in an automobile fire. .

In Spencer v. B.P. John Furniture Corp., the court stated:

“Gasoline and oil in service stations and explosives in a munitions plant are also to be expected, because these substances, which are dangers to fire fighters, are commonly identified with such places. Even some lack of care in the manner in which these substances are handled is to be expected. On the other hand, the unlawful storage of a 50-gallon drum of gasoline in the basement of a residence would be an example of a highly dangerous, hidden, and totally unexpected situation. If a fireman neither discovered nor learned of it, he would not assume the risk of injury from a resultant explosion.” 255 Ore. 359, 365-66, 467 P.2d 429, 432.

Also, in a note entitled Landowner’s Negligence Liability to Persons Entering as a Matter of Right or Under a Privilege of Private Necessity, 19 Vand. L. Rev. 407, 420-21 (1966), the author states:

“Firemen are still required to assess the situation in which they find themselves, however, and may not be entitled to a warning in circumstances where they should anticipate the danger or where they can actually see it. Thus, presence of gasoline in a basement in which fire has broken out and an explosion has occurred may constitute an unusual hazard concerning which the occupier is under a duty to warn if he has opportunity to do so. On the other hand, firemen who are called to combat a fire at a garage may be held to have assumed the risk of a gasoline explosion because storage of the fuel is commonplace in garages.”

Thus, I am convinced that the majority opinion misconceives the fireman’s rule and has erroneously failed to apply it.

I also believe that the plaintiff in this case is not an individual who is entitled „to the protections afforded under the concepts of “strict liability.” This court thoroughly considered the extent of the duty of a manufacturer of an alleged defective product in Winnett v. Winnett (1974), 57 Ill. 2d 7, and elected, in defining the duty, not to strictly adhere to the categorization of plaintiffs as users, consumers or innocent bystanders and stated:

“In our judgment the liability of a manufacturer properly encompasses only those individuals to whom injury from a defective product may reasonably be foreseen and only those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable that it may be used. Any other approach to the problem results in making the manufacturer and those in the chain of product distribution virtual insurers of the product ***.” (57 Ill. 2d 7, 11.)

The court continued:

“Whether the plaintiff here is an individual who is entitled to the protections afforded *** depends upon whether it can be fairly said that her conduct in placing her fingers in the moving screen or belt *** was reasonably foreseeable. A foreseeability test, however, is not intended to bring within the scope of the defendant’s liability every injury that might possibly occur. ‘In a sense, in retrospect almost nothing is entirely unforeseeable.’ [Citation.] Foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur. [Citation.] ” (Emphasis in original.) 57 Ill. 2d 7, 12-13.

The majority opinion, citing Winnett, erroneously concludes that “[w]hether a fireman fighting a fire in the course of his employment is a person to whom injury from a defective product may reasonably be foreseen is ordinarily an issue of fact ***.”This statement in the opinion totally ignores the responsibility of the court to determine first the question of duty and manifests a willingness to abrogate that responsibility and surrender it to the fact finder. Also the quoted language of the opinion, in the process of abrogating the responsibility to determine duty, assumes the major premise that the product was defective.

The legal concept of foreseeability cannot be equated with duty. They are not coextensive. (Mieher v. Brown (1973) , 54 Ill. 2d 539; Dreisonstok v. Volkswagenwerk, A.G. (4th Cir. 1974), 489 F.2d 1066; see Hoenig & Goetz, A Rational Approach to “Crashworthy” Automobiles: The Need for Judicial Responsibility, 6 Sw. U.L. Rev. 1, 40 (1974) .) Thus it is the function of the court to determine whether a duty is owed to the fireman plaintiff in our case before submitting the foreseeability question to the jury.

As stated in the quoted portion of Winnett above, the manufacturer is liable only to those individuals to whom injury from a defective product may reasonably be foreseen and only in those situations where the product is being used for the purpose for which it was intended, or for which it is reasonably foreseeable that it may be used.

In considering what constitutes a defective product this court stated in Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill. 2d 339, that although the definitions of the term “defect” in the context of products liability law use varying language, all of them rest upon the common premise that those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function. Also, Dean Prosser has stated, “A product is to be regarded as defective if it is not safe for such a use that can be expected to be made of it ***.” (Emphasis added.) Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791, 826 (1966).

In Weber v. Fidelity & Casualty Insurance Co. (1971), 259 La. 599, 603, 250 So. 2d 754, 755, the Louisiana Supreme Court held that a product is defective if it is “unreasonably dangerous to normal use.” (Emphasis added.) In Perez v. Ford Motor Co. (5th Cir. 1974), 497 F.2d 82, 87, the court, applying Louisiana law, stated that normal use refers to the use of the vehicle, not to the type or severity of the collision encountered:

“Thus, the controlling fact is the use to which the vehicle was being put at the time of the accident and not the accident itself. If the vehicle was being used to travel on the streets *** in the course of routine driving, it meets the ‘normal use’ requirement ***. The fact that it was involved in an accident or that the accident involved uncommon occurrences does not legally preclude a claim ***.”

Also, Mr. Justice Traynor of the California Supreme Court, whose preeminence in the field of products liability law is recognized in the majority opinion in this case, stated in Greenman v. Yuba Power Products, Inc. (1963), 59 Cal. 2d 57, 64, 377 P.2d 897, 901, 27 Cal. Rptr. 697, 701: “To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the [tool] in a way it was intended to be used ***.” (Emphasis added.)

Also Mr. Justice Traynor stated in his article The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn. L. Rev. 363, 372 (1965): “Defect becomes a fiction, however, if it means nothing more than a condition causing physical injury.” And in Prosser, Torts 668-69 (4th ed. 1971), it is stated: “[T]he seller is entitled to expect a normal use of his product, and is not liable when it is put to an abnormal one. [T]he seller is not liable when the product is *** used in some unusual and unforeseeable way ***.”

Under the allegations in this complaint it appears that the fire in the automobile had its origin in some set of circumstances entirely unrelated to the use of the vehicle or its malfunction. Count I of the complaint charges that the owner of the automobile had placed some highly flammable substance in the vehicle and that this had ignited. There is a host of cases which have permitted recovery for defective design of automobiles. In all of these, however, even in so-called “second collision cases,” and those involving injuries to bystanders, the injuries were occasioned as a result of the use of the automobile as an automobile. Many of these cases were cited by this court in Buehler v. Whalen (1977), 70 Ill. 2d 51, wherein it was stated: “[T]he manufacturer’s duty is to use reasonable care in the design and manufacture of its product, bearing in mind that the intended and actual use of automobiles results in collisions.” 70 Ill. 2d 51, 61.

John Hubbard, Virginia Kelly, and Russell Shew, members of the staff of the Center for Auto Safety in Washington, D.C., authored an article entitled Fuel-Fed Vehicle Fires which appeared in the Association of Trial Lawyers of America’s magazine “Trial” in January of 1978.-This article discloses that the focus of attention in testing, designing and in promulgating safety standards and regulations is on improving the safety of automobile gasoline tanks and fuel systems when the automobile is being used as an automobile; that is, the emphasis is on reducing or eliminating the hazards of fire and explosion associated with the impact of collisions. I suppose that it is possible from an engineering standpoint to construct a container for gasoline that will not- explode under any circumstances, but when an automobile manufacturer places its product in the stream of commerce it is not saddled with that heavy burden. The product must be only reasonably safe considering its normal and anticipated function and use.

Inasmuch as the injury in this case was in no way connected with the use of the automobile as an automobile or to its intended or normal use, I would hold that no duty under the concepts of strict products liability was owed to the plaintiff.' The automobile was being incinerated, which is a far cry from the normal use of a vehicle or even of an anticipated use of a vehicle. The law in this State and in fact in few if any other jurisdictions has not extended the strict products liability concept this far. This goes far beyond the theory of strict liability in tort and in fact appears to be at the threshold of absolute liability. I would-, for these reasons, respectfully dissent from the opinion of the majority of my colleagues.

WARD, C.J., and UNDERWOOD, J., join in this dissent.


author: MR. JUSTICE MORAN

text:
    (No. 49375.
    ARNOLD ENGINEERING, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Dallas M. Noll, Appellee.)

      Opinion filed May 26, 1978.

    — Rehearing denied September 29, 1978.

    KLUCZYNSKI, J., took no part.
    Burges on, Laughlin, Cunningham & Smith, of Chicago (Richard D. Hannigan and Francis D. Morrissey, of counsel), for appellant.

      Jason Gesmer, of Tuite, Morrissey, Gesmer & Finnegan, of Rockford (J. Michael Madda, Charles Wolff, and Sidney Z. Karasik, of Chicago, of counsel), for appellee.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Douglas F. Stevenson, Daniel P. Socha, Stephen J. Friedman, and William N. Krucks, of counsel), for amici curiae Illinois Manufacturers Association, Northwestern Steel & Wire Co., Standard Oil Co. (Indiana), International Harvester, Johns-Manville Corp., United States Steel Corp., Bethlehem Steel Corp., Sears, Roebuck 8c Co., Illinois Bell Telephone Co., Rockwell International, Casualty Insurance Co., Keystone Consolidated Industries, Inc., American Insurance Association, Commercial Union Assurance Companies, Anchor Hocking Corp., Employers Mutual Companies, State Farm Fire & Casualty Co., Alexsis Division of Alexander 8c Alexander, Chicago Mutual Liability Co., Commonwealth Edison Co., and Associated General Contractors of Illinois.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The sole issue presented in this appeal is whether the amendment of section 6 of the Workmen’s Compensation Act, effective July 1, 1975 (Ill. Rev. Stat. 1975, ch. 48, par. 138.6(c)(2)), which extends the statute of limitations from one to three years, is applicable to a claim which, without the amendment, would have been barred.

On October 24, 1972, claimant sustained a compensable injury to his left thumb. He received temporary compensation benefits from that date to November 20, 1972. On the date of the injury and on the date of the last compensation payment, section 6 of the Workmen’s Compensation Act (the Act) provided that an application for adjustment of claim was to be filed with the Industrial Commission within one year of the date of the accident or from the date of the last payment of compensation.

Claimant filed an application for adjustment of claim on June 30, 1975. At the hearing before the arbitrator, the employer moved to dismiss the application on the ground that it was not filed within one year of the employer’s last payment of temporary compensation, as provided by section 6 of the Act in force in October and November of 1972. That motion was denied. The denial was affirmed by the Industrial Commission and later confirmed by the circuit court of McHenry County. The case comes to us on appeal as a matter of right pursuant to Rule 302(a). 58 111. 2d R. 302(a).

Claimant contends that where an amendment affects only the procedural aspects of the case, such as those altering the time for filing a claim, the amendment is applied retroactively, regardless of whether the action accrued before or after the effective date of the amendment or whether suit had been instituted or not. This court, however, has consistently held that a subsequent statutory amendment which extends the time for filing a cause of action or claim will not be applied retroactively to revive a cause of action or claim which had been previously barred. Country Mutual Insurance Co. v. Knight (1968), 40 Ill. 2d 423; People v. Lansing (1966), 35 Ill. 2d 247; Hogan v. Bleeker (1963), 29 Ill. 2d 181; Carterville & Big Muddy Coal Co. v. Industrial Com. (1922), 303 Ill. 152; Board of Education v. Blodgett (1895), 155 Ill. 441.

In Blodgett, an amendment which extended the time for filing an action was held inapplicable to actions which had been barred by the running of a previous statute of limitations. The court held the statutory defense, created by the expiration of the prior statute, a “vested right” which could not be destroyed by legislation.

In Carterville & Big Muddy Coal Co., a case directly on point, the employee was injured on March 13, 1918. At that time, the Workmen’s Compensation Act provided that a claim for compensation was to be filed within six months of the date of the injury. The employee returned to work a few days after the accident, but did not file a claim within six months. An amendment, effective July 1, 1919, approximately 15 months after the employee returned to work, extended the period of time for filing a claim to 18 months from the date on which the employee returned to work. The employee’s application for compensation was filed within the 18 months. Despite the employee’s argument that the amendment applied retroactively because it was procedural in nature, the court held that his claim was extinguished after the six-month period had elapsed and could not be revived by subsequent legislation.

Claimant contends, however, that the above-cited cases have been overruled in principle, and that basic fairness requires that the rules of retroactivity be applied uniformly regardless of whether an amendment shortens or lengthens the limitation period. In support of his argument, claimant relies on a number of cases wherein amendments which shortened or lengthened the time, both for filing an action and for seeking review of a judgment, were applied retroactively irrespective of the time the action arose or the judgment was entered. E.g., Orlicki v. McCarthy (1954), 4 Ill. 2d 342; Hilberg v. Industrial Com. (1942), 380 Ill. 102; Smolen v. Industrial Com. (1926), 324 Ill. 32.

Close analysis of these cases, however, reveals no inconsistency with the principle prohibiting the revival of previously barred claims.

In Smolen, for example, where the amendment extending the time for review was applied retroactively, the employer’s time for seeking modification of the award under the previous law had not expired prior to the date of the amendment. (See also People v. Covington (1970), 45 Ill. 2d 105, 107-08.) Here, in the converse situation, the claimant’s time for filing a claim had lapsed prior to the enactment of the amendment. These cases are not inconsistent with the rule prohibiting the revival of barred causes of action, but, rather, stand for the uniform proposition that no one, plaintiff or defendant, has a vested right in a statute of limitations prior to its lapse. Where a limitation period has not expired prior to amendment, the amendatory act controls all actions and remedies not previously barred.

The same rationale supports those cases in which the court retroactively applied amendments which shortened the limitation period. In most of these cases, however, the parties had a reasonable time, despite the amendment, in which to file their actions or claims. In Orlicki v. McCarthy (1954), 4 Ill. 2d 342, for example, an amendment to the Liquor Control Act (1949 Ill. Laws 816; Ill. Rev. Stat. 1949, ch. 43, par. 135) shortened, from five to two years, the period in which to file a cause of action. The plaintiff had almost two years to file his cause of action under the amended act but failed to do so. The court held that the amendment applied retroactively because it was procedural in nature, but it specifically noted that plaintiff was not prejudiced nor deprived of any right inasmuch as he had had ample time to file within the shortened period of limitation. The results reached in other cases cited by claimant are consistent with the Orlicki rationale. (E.g., Board of Underwriters v. Industrial Com. (1928), 332 Ill. 611, 615-16; City of Chicago v. Industrial Com. (1920), 292 Ill. 409, overruled on other grounds in Vulcan Detinning Co. v. Industrial Com. (1920), 295 Ill. 141, wherein the court held the claimant had an accrued right which was preserved under the provisions of the statutory construction act. See also Carlin v. Peerless Gas Light Co. (1918), 283 Ill. 142, 146.) The retroactive application of the shortened limitation period did not unfairly prejudice the party or deprive him of any recognizable right which had accrued under the previous statute. These cases are, therefore, consistent with the rule against divestiture of a limitations defense which had accrued prior to the amendatory enactment.

Admittedly, there are cases where the retroactive application of a shortened limitation period effectively deprived the party of a statutory action or remedy which had accrued under the previous law and which had not been abolished by the subsequent amendment. (E.g., Diamond T Motor Car Co. v. Industrial Com. (1941), 378 Ill. 203; Duquoin Township High School District No. 100 v. Industrial Com. (1928), 329 Ill. 543.) The correctness of these holdings is extremely questionable in light of the imposing body of case law which suggests that an amendment will not be retroactively applied so as to terminate a cause of action unless the party has a reasonable amount of time after the amendment’s effective date in which to file his action. (E.g., Meegan v. Village of Tinley Park (1972), 52 Ill. 2d 354, 359; Trustees of Schools v. Batdorf (1955), 6 Ill. 2d 486, 493; Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 349; Carlin v. Peerless Gas Light Co. (1918), 283 Ill. 142, 143-44.) This issue, however, is not presently before the court.

Finally, we do not find the result reached in Hilberg v. Industrial Com. (1942), 380 Ill. 102, to be inconsistent with the foregoing.

In Hilberg, claimant sought compensation when her husband died as the result of an injury received in a work-related accident. Prior to her husband’s death, the limitations statute was amended and provided that compensable deaths must occur within one year of the accident and all claims must be filed within one year after the death. (Under the prior statute, death did not have to occur within one year of the accident.) Claimant’s husband died after the effective date of the amendment, and more than one year after the accident. The court held that the amended act controlled, and it affirmed the circuit court’s dismissal of the claimant’s action. In reaching its decision, the court noted that, prior to the effective date of the amendment, claimant had no existing cause of action, only a mere expectancy. The retroactive application of the amendment, therefore, did not deprive claimant of any right or claim existing under the previous statute. Here, the employer’s limitations defense accrued under the previous statute of limitations, prior to the effective date of the amendment.

As demonstrated by the above analysis, the cases regarding retroactivity have, in most instances, been uniform in result and are consistent with the cases prohibiting the revival of barred claims or actions.

However, claimant contends that the legislature cam constitutionally revive barred statutorily created remedies (citing Campbell v. Holt (1885), 115 U.S. 620, 29 L. Ed. 483, 6 S. Ct. 209), and suggests that the amended act herein evinces a clear legislative intent to do so. In Campbell, the Supreme Court stated that no one has a vested right to rely upon the statute of limitations to defeat a valid and existing debt which had not been destroyed. The court held that a State legislature may, consistent with the requirements of the fourteenth amendment, repeal or extend the statute of limitations and divest a person of the limitations defense insofar as debts are concerned. In Board of Education v. Blodgett, however, this court declined to follow the majority’s holding in Campbell, and held that, under the Illinois Constitution, it was a denial of due process to revive a previously barred cause of action.

Assuming, but not deciding, that the legislature can, in certain cases, constitutionally revive previously barred statutorily created remedies, such revival should not result unless the legislature expressly indicates that intention. (People v. Lansing (1966), 35 Ill. 2d 247, 250.) Contrary to the claimant’s contention, we find nothing in the language of section 6(c) to indicate an express intent on the part of the legislature to revive a claim which had been previously barred.

For the reasons stated herein, the judgment of the circuit court of McHenry County is reversed and the cause is remanded to the Industrial Commission with directions to dismiss claimant’s application.

Reversed and remanded, with directions.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


author: MR. JUSTICE CLARK

text:
    (No. 49142.
    CROW’S HYBRID CORN CO., Appellant, v. THE INDUSTRIAL COMMISSION et al. -(Carl L. Hartman, Appellee.)

      Opinion filed May 26, 1978.

    — Rehearing denied September 29, 1978.

      KLUCZYNSKI, J., took no part.
    Sebat, Swanson, Banks, Lessen & Garman, of Danville, and Williams, McCarthy, Kinley, Rudy & Picha, of Rockford (Robert J. Banks, Jr., of Danville, and George J. Picha and Russell D. Anderson, of Rockford, of counsel), for appellant.
    Scheele, Murphy & Serkland, Ltd., of La Grange (James C. Serkland, of counsel), for appellee.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Douglas F. Stevenson, Stephen J. Friedman, and Ian M. Sherman, of counsel), for amici curiae Illinois Manufacturers Association, Northwestern Steel & Wire Co., Standard Oil Co. (Indiana), Johns-Manville Corp., United States Steel Corp., Illinois Bell Telephone Co., Casualty Insurance Co., Sears, Roebuck & Co., American Insurance Association, Associated General Contractors of Illinois, Anchor Hocking Corp., Employers Mutual Companies, Alexander & Alexander, and Commonwealth Edison Co.
   MR. JUSTICE CLARK

delivered the opinion of the court:

In this workmen’s compensation case, an arbitrator found no causal connection between the condition complained of, a hernia, and an accident alleged to have occurred September 23, 1971. The Commission found the arbitrator’s decision “erroneous,” but also denied the claim of Carl L. Hartman for failure to prove “notice of hernia pursuant to Section 6(c)(1)” of the Workmen’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.6(c)(1); hereafter Act). The circuit court of Iroquois County reversed the decision of the Commission and remanded the cause with directions that the Commission enter a decision awarding claimant “medical, hospital and surgical expenses related to the hernia and stomach surgery,” temporary total compensation for lost time, and compensation for the 100% loss of the use of one testicle. The Commission did so. The circuit court order confirming the Commission is appealed from pursuant to Supreme Court Rule 302(a). 58 Ill. 2d R. 302(a).

On appeal, our review in workmen’s compensation cases “typically is limited to a determination of whether findings of the Commission were against the manifest weight of the evidence.” (Pope v. Industrial Com. (1970), 45 Ill. 2d 48, 52.) Before we can reach that issue, however, we are compelled to resolve threshold problems.

The first issue is the sufficiency and timeliness of claimant’s notice.

On September 23, 1971, claimant, while “moving gates in the old dryer” in the course of his employment with Crow’s Hybrid, dropped one because “something hurt me on the side.” Although he felt a bulge, which grew larger, in the area of the groin, he continued to work until the middle of December 1971. During that time claimant received no treatment but did wear a truss. On December 15, 1971, Dr. Dean Hungness diagnosed a hernia and recommended surgery. Claimant’s wife testified that, on the same day, she talked to Mr. Crow and informed him that claimant had been injured at work and the doctor had recommended hernia surgery. The claimant was hospitalized from December 16, 1971, until January 18, 1972, during which time, claimant testified, Crow visited him several times.

Claimant maintains the employer received notice of his injury by means of Mrs. Hartman’s phone call to Crow on December 15, 1971. The employer contends that the phone-call notice is insufficient. The employer cites Fenix-Scisson Construction Co. v. Industrial Com. (1963), 27 Ill. 2d 354 (in which the claimant’s wife phoned his foreman to tell him claimant was hospitalized and wished to see him), as controUing. As appealing as that case is, it is inapposite. There the wife failed to tell the employer that claimant was hospitalized due to an accident at work. Here Mrs. Hartman’s testimony, which is uncontradicted in the record, was that she told Crow the claimant had been injured at work. (The Industrial Commission’s finding that the claimant “failed to prove notice of hernia pursuant to Section 6(c)(1)” is apparently concerned with the timeliness of the notice.) A subsequent case is more supportive of the claimant’s position. In Andronaco v. Industrial Com. (1972), 50 Ill. 2d 251, the only notice given the employer was a phone call from the claimant’s wife, who asked to speak to the foreman; unable to reach him, she talked to another man and told him that her husband, the employee, had died from a heart attack that same day; this was found to be sufficient notice without prejudice to the employer. (See Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32. Cf. Heyworth v. Industrial Com. (1926), 321 Ill. 298.) The employer in the instant case was aware of the claimant’s condition: after the phone caH Crow visited the claimant in the hospital, and the employer’s accountant testified he learned of the claimant’s hernia in December 1971. We find Mrs. Hartman’s phone call, under these circumstances, constituted adequate notice. The Act provides for oral notice (Ill. Rev. Stat. 1971, ch. 48, par. 138.6(c)(3)). Moreover, “liberality in the matter of notice should be allowed to the extent-that it is consistent with the protection of the employer against unjust claims.” Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 4.1.

We next consider the timeliness of the notice. Claimant concedes that notice (on December 15, 1971) was not given within 15 days of the accident (on September 23, 1971) as required by the statute in effect then (Ill. Rev. Stat. 1971, ch. 48, par. 138.6(c)):

“(c) No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than 45 days after the accident. Provided:
(1) In cases of hernia, notice shall be given the employer within 15 days after the accident.”

However, claimant argues that his situation falls under section 8(j) of the Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.80)):

“(j) 1. In the event the injured employee receives benefits, including medical, surgical or hospital benefits under any group plan covering non-occupational disabilities contributed to wholly or partially by the employer, which benefits should not have been payable if any rights of recovery existed under this Act, then such amounts so paid to the employee from any such group plan as shall be consistent with, and limited to, the provisions of Paragraph 2 hereof, shall be credited to or against any compensation payment for temporary total incapacity for work or any medical, surgical or hospital benefits made or to be made under this Act. In such event, the period of time for giving notice of accidental injury and filing application for adjustment of claim does not commence to run until the termination of such payments. ***” (Emphasis added.)

The record establishes that insurance payments were made under the group policy the employer had with the Prudential Insurance Company during the period from January 28, 1972, when the insurance claim was filed, until October 9, 1972, when the payments terminated. This plan covered nonoccupational disabilities. Claimant’s notice had been filed long before “the period of time for giving notice” had commenced to run on October 9, 1972. Moreover, this court has construed section 8(j) of the Act in favor of a claimant on facts less favorable to the claimant than here. Caterpillar Tractor Co. v. Industrial Com. (1965), 33 Ill. 2d 78; Creel v. Industrial Com. (1973), 54 Ill. 2d 580.

The employer counters with the argument that subsection 3 of section 8(j) of the Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(j)(3)) is applicable:

“3. The extension of time for the filing of an Application for Adjustment of Claim as provided in paragraph 1 above shall not apply to those cases where the time for such filing had expired prior to the date on which payments or benefits enumerated herein have been initiated or resumed.”

The employer asserts that because the 15 days for filing notice of the accident (on September 23, 1971) in a hernia case had run long before the “payments or benefits *** [had] been initiated” (in 1972), claimant’s notice may not benefit by the extension of time allowed in section 8(f)(1). We disagree. Subsection 3 says absolutely nothing about the filing of notice. It refers only to the filing of an application for adjustment of claim (which, in this case, was done on December 4, 1972, well within a year of the termination of the group insurance payments on October 9, 1972 (Ill. Rev. Stat. 1971, ch. 48, par. 138.6(c)). Therefore, we find the notice sufficient and timely.

Unlike the arbitrator, who found no causal connection between the accident and the injuries complained of, the Industrial Commission found that the claimant “sustained accidential injuries arising out of and in the course of the employment.” The circuit court confirmed this portion of the Commission’s findings but set aside the Commission’s denial of the claim for failure to prove notice, and ordered the Commission to enter an award for the claimant. Because of our disposition of the notice issue above, the question remains whether the findings of the Commission were against the manifest weight of the evidence. It is not for us to decide whether we would have entered an award or not on the evidence. Rather the question is whether the evidence sufficiently supports the Commission’s findings. We believe it does.

Under the Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.8(d)(1)), an “injured employee, to be entitled to compensation for hernia, must prove:

A. The hernia was of recent origin;
B. Its appearance was accompanied by pain;
G. That it was immediately preceded by trauma arising out of and in the course of the employment;
D. That the hernia did not exist prior to the accident.”

This was the law in effect when the injuries occurred. (Stanswsky v. Industrial Com. (1931), 344 Ill. 436, 439-40; Sroka v. Industrial Com. (1952), 412 Ill. 126, 131.) Crow’s Hybrid does not question that the claimant suffered trauma and pain. It challenges the claimant’s assertions that the hernia was of recent origin and that the hernia did not exist prior to the accident. Crow’s Hybrid relies on the testimony of its witness, Dr. Raymond Donovan, who performed some 1,500 hernia operations and who performed the hernia operation on the claimant. He said the hernia was “a huge sliding type” which had been developing over a period of five to seven years prior to the surgery on December 17, 1971. Dr. Dean Hungness, who had been the claimant’s physician for over 10 years prior to the accident and who assisted in claimant’s operation, admitted that as early as 1964 the claimant complained of pain in the area of the groin but that he never treated him for that. On subsequent occasions before December 1971, perhaps as many as 15, Dr. Hungness treated or performed medical checkups for claimant but found no hernia condition. In October 1969, he checked specifically for a hernia but found none. Although Dr. Hungness testified that he could not say with a reasonable medical certainty that claimant’s condition was the result of the September 1971 lifting accident, he could say that “particular instance could have caused the condition,” and that, based on a reasonable degree of medical certainty, claimant’s “condition of ill-being” found on December 15, 1971, “was related to the lifting-type incident” of September 1971. He also testified that the loss of the testicle was related to the hernia condition. (Dr. Donovan did not testify as to the loss of the testicle.) As to a thrombosis or embolic damage to the artery, Dr. Donovan agreed this could have resulted from the hernia surgery.

On this testimony the Commission reasonably concluded that the diagnosed hernia was of recent origin, not antedating the September 1971 accident. Dr. Donovan was quite experienced in hernia diagnosis but he was not familiar in any way with the claimant’s medical history except as apparently advised by Dr. Hungness, who had been claimant’s physician, since 1959. The record shows Dr. Hungness was also experienced with hernia conditions. As we have stated frequently in the past, “The choice between conflicting medical testimony is in the province of the Industrial Commission, and its findings will not be disturbed unless they are against the manifest weight of the evidence. [Citations.] ‘It is primarily the function of the Industrial Commission to resolve disputed questions of fact, including those of causal connection, and to draw permissible inferences and decide which of conflicting medical views is to be accepted.’ (Ford Motor Co. v. Industrial Com. (1972), 50 Ill. 2d 267, 271.)” Hans Jensen &Sons, Inc. v. Industrial Com. (1977), 68 Ill. 2d 210, 213.

Finally, the employer contends that because claimant received unemployment compensation for 26 weeks between February 1972 (when he worked at Crow’s Hybrid for a few days until told by the employer he would not be permitted to work) and October 1972 (when he had more surgery), the Commission erred in allowing temporary total compensation during that period, including those 26 weeks. We disagree. Under the Unemployment Compensation Act:

“An individual shall be ineligible for benefits for any week with respect to which he is receiving or has received remuneration in the form of compensation for temporary disability under the Workmen’s Compensation Act of this State, or under a workmen’s compensation law of any other State or of the United States. If such remuneration is less than the benefits which would otherwise be due under this Act, he shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration.” Ill. Rev. Stat. 1971, ch. 48, par. 436.

It is clear that an employer is liable for all disabilities traceable to the accident!al injuries sustained by an employee in the course of employment. (Shell Oil Co. v. Industrial Com. (1954), 2 Ill. 2d 590, 595.) The import of the statute is that the unemployment compensation, to the extent that claimant is eligible for it, will be reduced by the amount of the disability benefits— not that the disability benefits will be reduced or not paid at all. This is not to suggest that claimant should receive a double recovery not permitted by statute. The practical effect of the case before us is that claimant did not have the disability benefits in hand while he was apparently eligible for unemployment compensation. Once the disability benefits are received, the unemployment compensation should be reduced or, as here and as claimant acknowledges, the unemployment compensation fund should be reimbursed. What Crow’s Hybrid is effectively suggesting is that the unemployment compensation fund should be liable for 26 weeks of claimant’s disability which was attributable to Crow’s Hybrid. A further implication of Crow’s Hybrid’s last contention is that claimant was not really temporarily totally disabled, as the Commission found, because in order to receive unemployment com pensation, a worker must be available for, i.e., able to, work. This can be countered in two ways. First, the statutory provision, quoted above, does not, by implication or otherwise, mutually exclude or find inconsistent receipt of disability benefits and availability for work. (Claimant was advised by Dr. Hungness that he was available for some “light work.”) Second, we have already determined that the findings of the Commission were not against the manifest weight of the evidence.

For the reasons above, we affirm the circuit court’s confirmation of the Commission’s award to the claimant.

Judgment affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


author: MR. JUSTICE GOLDENHERSH

text:
    (No. 49499.
    ROGER FITZGERALD et al., Appellees, v. CHICAGO TITLE AND TRUST COMPANY, Appellant.

      Opinion filed May 26, 1978.

      KLUCZYNSKI, J., took no part.
    John C. Christie, Jr., Francis J. Higgins, and William R. Dillon, of Chicago (Bell, Boyd, Lloyd, Haddad & Burns, and Concannon, Dillon, Snook & Morton, of counsel), for appellant.

      Robert S. Atkins and Eugene I. Pavalon, of Chicago (Freeman, Atkins & Coleman, Ltd., and Asher, Greenfield, Goodstein, Pavalon & Segall, Ltd., of counsel), for appellees.
    William J. Scott, Attorney General, of Springfield (Thomas J. Ciechanowski, Assistant Attorney General, of Chicago, of counsel), amicus curiae.

   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Roger J. Fitzgerald, Joanne Fitzgerald, Charles Searcy and Deama Searcy, appealed from the judgment of the circuit court of Cook County entered in favor of defendant, Chicago Title and Trust Company, upon allowance of its motion to dismiss plaintiffs’ complaint. The appellate court reversed (46 Ill. App. 3d 526), and we allowed defendant’s petition for leave to appeal. Plaintiffs, suing “individually and on behalf of a class of persons similarly situated,” alleged in their complaint that plaintiffs Fitzgerald, as the sellers of real estate, and plaintiffs Searcy, as purchasers of real estate, had through their agents, respectively South Chicago Savings Bank and Chicago City Bank and Trust Company, ordered preliminary reports of title and mortgage insurance policies from defendant; that in violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1973, ch. 12D/2, par. 261 et seq.) defendant had submitted to the financial institutions invoices reflecting “customary seller’s charges” and “customary buyer’s charges” and did not disclose that defendant “paid or otherwise granted” to the financial institutions “a rebate, discount or allowance of ten percent (10%) with respect to such charges and for which said plaintiffs were not reimbursed”; that plaintiffs represent a class of persons who either sold or purchased real estate in transactions wherein defendant made the same type of allowances and rebates without disclosing those payments on the face of its invoices, or by any other means; that defendant’s conduct constituted a deceptive trade practice under the provisions of the Consumer Fraud and Deceptive Business Practices Act; and that plaintiffs are entitled to damages, an injunction and other relief. The circuit court allowed defendant’s motion and dismissed the complaint “with prejudice.” Holding that under section 2 of the Act plaintiffs’ complaint stated a cause of action, the appellate court reversed the judgment and remanded the cause for further proceedings.

The Consumer Fraud and Deceptive Business Practices Act in pertinent part provides:

“Sec. 1. ***
(f) The terms ‘trade’ and ‘commerce’ mean the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this State.” (Ill. Rev. Stat. 1973, ch. 12 VA, par. 261(f).)
“Sec. 2. Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’, approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been mislead, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.” (Ill. Rev. Stat. 1973, ch. 12U/2, par. 262.)
“Sec. 10a. (a) Any person who suffers damage as a result of a violation of Section 2 of this Act committed by any other person may bring an action against such person. The court, in its discretion may award actual damages or any other relief which the court deems proper.” 111. Rev. Stat. 1973, ch. 12154, par. 270a.

The Uniform Deceptive Trade Practices Act in pertinent part provides:

“Sec. 2. A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he:
* * *
(12) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.’’ Ill. Rev. Stat. 1973, ch. 12154, par. 312(12).

Defendant contends first that the appellate court misconstrued the statutory directive that “In construing this section [section 2] consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act” (Ill. Rev. Stat. 1973, ch. 12114, par. 262). It argues that “The amended Consumer Fraud Act directs Illinois courts to consider ‘interpretations relating to section 5(a) of the Federal Trade Commission Act,’ not to interpret section 5(a).” It argues further that the appellate court nevertheless interpreted section 5(a) of the Federal Trade Commission Act, and in so doing erroneously concluded that “the bare allegation of a violation of a Federal antitrust statute, viz.: Section 2(c) of the Robinson-Patman Act was sufficient to state a cause of action.” It argues further, “The Robinson-Patman Act, together with other Federal antitrust laws, did not become the law of Illinois through the ‘Back Door’ of the Amended Consumer Fraud Act.” Defendant argues too that since the initial adoption of the Illinois Antitrust Act (Ill. Rev. Stat. 1977, ch. 38, par. 60 — 1 et seq.), when the General Assembly has determined that additional competítive prohibitions are warranted, “it has done so clearly and directly by amendments to the Illinois Antitrust Act. Thus, in 1969 it adopted Public Act 76 — 208, which amended Section 3 by adding the present subsection (4) of the Act, Ill. Rev. Stat. ch. 38, sec. 60 — 3(4) (1975), a counterpart to Section 3 of the Clayton Act.” Defendant also contends that by its enactment of the amendments effected by Public Act 76 — 208 the General Assembly rejected legislation similar to section 2(c) of the Robinson-Patman Act.

We do not agree. From our examination of its opinion we conclude that the appellate court recognized and correctly followed the rule elucidated in People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332, that Federal authorities be considered where there is a lack of Illinois precedent but did not, as contended by defendant, construe section 2 of the Act to mean that every violation of section 2(c) of the Clayton Act (15 U.S.C. sec. 13(c) (1976)) was an unfair or deceptive practice. Furthermore, we find no authority to support defendant’s argument that the General Assembly expressly or by implication rejected legislation similar to section 2(c) of the Clayton Act.

We consider next defendant’s contention that under the appellate court’s interpretation, section 2 of the Consumer Fraud and Deceptive Business Practices Act is rendered so vague, indefinite and uncertain as to be violative of “substantive due process of law.” It argues that in Freeman v. Chicago Title & Trust Co. (7th Cir. 1974), 505 F.2d 527, the court of appeals held that section 2(c) of the Clayton Act does not apply to intangibles; that in Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, it was held that no common law action arose out of the payment of the same type of rebate as is alleged here; and that- absent some prior interpretation of the statute holding that the rebate payments made were unlawful, defendant was insufficiently advised as to what was proscribed by the statute, and was thus deprived of due process. We do not agree.

Section 5(a) of the Federal Trade Commission Act (15 U.S.C. sec. 45(a) (1976)) in pertinent part provides:

“(a)(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts of practices in or affecting commerce, are declared unlawful.
(2) The Commission is empowered and directed to prevent persons, partnerships, or corporations *** from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.”

In Federal Trade Com. v. Motion Picture Advertising Service Co. (1953), 344 U.S. 392, 394-95, 97 L. Ed. 426, 430, 73 S. Ct. 361, 363, the court said:

“The ‘unfair methods of competition,’which are condemned by section 5(a) of the Act, are not confined to those that were illegal at common law or that were condemned by the Sherman Act. Federal Trade Commission v. Keppel &Bro., 291 U.S. 304, [78 L. Ed. 814, 54 S. Ct. 423]. Congress advisedly left the concept flexible to be defined with particularity by the myriad of cases from the field of business. [291 U.S. 304, 310-12, 78 L. Ed. 814, 818-19, 54 S. Ct. 423, 425-26.] It is also clear that the Federal Trade Commission Act was designed to supplement and bolster the Sherman Act and the Clayton Act (see Federal Trade Commission v. Beech-Nut Co., 257 U.S. 441, 453, [66 L. Ed. 307, 313, 42 S. Ct. 150, 154]) — to stop in their incipiency acts and practices which, when full blown, would violate those Acts ***.”

In People v. Raby (1968), 40 Ill. 2d 392, in rejecting the contention that sections 26 — 1(a) and 31 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, pars. 26 — 1(a), 31 — 1) were invalid by reason of vagueness and overbreadth, the court said:

“It is true that section 26 — 1(a) does not attempt to particularize all of the myriad kinds of conduct that may fall within the statute. The legislature deliberately chose to frame the provision in general terms, prompted by the futility of an effort to anticipate and enumerate all of the methods of disrupting public order that fertile minds might devise.” (40 Ill. 2d 392, 396.)

Here, too, the General Assembly, “prompted by the futility of an effort to anticipate and enumerate all of the methods” which might be utilized to commit unfair methods of competition and unfair or deceptive acts or practices, apparently chose to frame the provision in general terms and permit construction and implementation of the statute on a case-by-case basis.

Assuming, arguendo, an earlier interpretation of section 2 of the Consumer Fraud and Deceptive Business Practices Act and defendant’s right to rely thereon, its reliance on Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, and Freeman v. Chicago Title & Trust Co. (7th Cir. 1974), 505 F.2d 527, is misplaced. Janes, without reference to section 2, held that allegations charging the defendant First Federal Savings and Loan Association with having failed to pay over to the plaintiffs certain rebates received under circumstances similar to those alleged in this case stated a cause of action. Concerning the defendant Chicago Title and Trust Company, Janes holds that absent a contractual relationship between that defendant and the plaintiffs, no cause of action was stated. In Freeman, holding that the Clayton Act did not apply to title insurance, the court said, “We, of course, express no opinion on the propriety of the rebate practices described in the complaint and, specifically, on whether such practices might be prohibited by other state or federal laws.” (505 F.2d 527, 534.) The Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1973, ch. 1211/2, par. 312), after enumerating 11 types of deceptive trade practices, provides in section 2(12) that a person engages in a deceptive trade practice when he engages in conduct which similarly to the activities specifically listed “creates a likelihood of confusion or of misunderstanding. ” We note parenthetically that under the provisions of the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. sec. 2607 (1976)) the type of rebate involved here is specifically prohibited. The appellate court did not err in holding that the payment of rebates in the manner alleged in plaintiffs’ complaint can, under section 2 of the Act, be an unfair or deceptive act or practice.

Plaintiffs concede that prior to the amendment of section 2 of the Consumer Fraud and Deceptive Practices Act, effective October 1, 1973, the complaint would not have stated a cause of action. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398.) It is plaintiffs’ position, however, that under the plain language of the statute, without regard to the Federal authorities, the complaint states a cause of action. The Attorney General, as amicus curiae, has filed a brief urging affirmance of the appellate court judgment.

Because the judgment was entered upon allowance of defendant’s motion to dismiss, all facts properly pleaded in the complaint must be taken as true. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 96.) This court has repeatedly held that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover. (Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill. 2d 128; Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298; Winnett v. Winnett (1974), 57 Ill. 2d 7; Miller v. DeWitt (1967), 37 Ill. 2d 273.) The complaint alleges that by the payment of commissions, discounts, allowanees or credits “to savings and loan associations, banks, real estate brokers, attorneys and other persons, firms or corporations acting as agents, representatives or intermediaries for and on behalf of plaintiffs and members of plaintiffs’ class” and the intentional, deliberate and deceptive concealment and failure to disclose that such payments were made, defendant had engaged in an “unfair method of competition and unfair and deceptive trade practice.” The complaint alleges further that invoices submitted by defendant enumerated “customary buyers’ charges” and “customary sellers’ charges” and that plaintiffs, who did not know that defendant had made the rebates, discounts or allowances, paid the amounts shown in the invoices, and were not reimbursed; that plaintiffs were required to pay unreasonable and unnecessary charges for defendant’s services and as the result suffered damages. Under the facts alleged, if defendant’s actions were taken with the intent that others rely upon the invoices which did not disclose the fact that a rebate was being paid, and plaintiffs paid charges which they may have been entitled to recoup from their respective agents (see Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398), the complaint states a cause of action under section 2 of the Consumer Fraud and Deceptive Business Practices Act.

For the reasons stated the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.