author: MR. JUSTICE RYAN MR. JUSTICE UNDERWOOD,

text:
    (No. 49950.
    MARILYN JO KELSAY, Appellant, v. MOTOROLA, INC., Appellee.

      Opinion filed Dec. 4, 1978.
    Rehearing denied Jan. 25, 1979.

      KLUCZYNSKI, J., took no part.
    UNDERWOOD, J., concurring in part and dissenting in part.
    Thomson, Thomson, Zanoni, Flynn, Weintraub & McElvain, of Bloomington (Mike McElvain, of counsel), for appellant.

      Robert V. Nystrom and Richard H. Ferri, of Chicago, for appellee.
    Harold A. Katz, Irving M. Friedman, Jerome Schur, and Warren E. Eagle, of Katz, Friedman, Schur & Eagle, of Chicago, for amicus curiae Community Action Program of the UAW.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Plaintiff, Marilyn Jo Kelsay, filed a complaint in the circuit court of Livingston County, seeking compensatory and punitive damages against her ex-employer, Motorola, Inc. The plaintiff alleged that her employment with defendant had been terminated as retaliation for her filing a workmen’s compensation claim. The trial court directed a verdict in plaintiff’s favor and the jury assessed damages in the amount of $1,000 compensatory damages and $25,000 punitive damages. The court remitted the compensatory damages to $749, which represents the wages plaintiff lost between the time she was discharged and the time she found a new job. On appeal, the Fourth District Appellate Court reversed the judgment of the trial court, holding that an employee has no cause of action against an employer for retaliatory discharge. (51 Ill. App. 3d 1016.) Because a different panel of the same court reached a contrary result in an opinion filed on the same day (Leach v. Lauhoff Grain Co. (1977), 51 Ill. App. 3d 1022), the appellate court issued a certificate of importance to this court (see 58 Ill. 2d R. 316) so that we may resolve the conflict.

Plaintiff suffered a cut to her thumb while working at the Motorola factory in Pontiac. She received immediate medical attention at a local hospital, where her thumb was stitched. She returned to work later that same afternoon. Shortly thereafter, plaintiff sought advice of counsel regarding a workmen’s compensation claim for her thumb injury. Counsel sent notice of the impending claim to the employer, Motorola, Inc.

Plaintiff spoke with the personnel manager at the Motorola plant, Donald Aherns, after he received notice of the workmen’s compensation suit. Aherns told plaintiff that the corporation was aware of the situation, that she would be “more than adequately compensat[ed] ” by the corporation for her thumb injury, and that there was no need for her to follow through with her claim. He also informed the plaintiff that it was the corporation’s policy to terminate the employment of employees who pursued workmen’s compensation claims against it, and advised the plaintiff to “think about it” a little longer. Plaintiff, however, decided to proceed with her claim and, after informing Aherns of her final decision, was discharged. Her compensation claim against Motorola was eventually settled. Subsequently, as noted above, plaintiff sought relief in the Livingston County circuit court against defendant, Motorola, for her retaliatory discharge by the corporation.

This appeal raises several issues. First, should this State recognize a cause of action for retaliatory discharge? If so, is such an action one which may give rise to a claim for punitive damages, and, if so, was the jury’s award of $25,000 punitive damages proper in the instant case?

The employer argues that no cause of action should exist in this State for the retaliatory discharge of an employee. He contends that, as of the time of plaintiff’s discharge, there was nothing in the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) that impinged on the employer’s unfettered right to terminate without cause an employee whose employment contract was at will. Further, the employer argues that recognition of a cause of action for retaliatory discharge is totally inconsistent with the exclusivity provision of the

Act itself, which specifically provides:

“The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act ***.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.11.)

Finally, the employer argues that the legislature’s decision to provide solely for criminal punishment of employers who, after 1975, “discharge or *** threaten to discharge *** an employee because of the exercise of his rights or remedies granted to him by [the] Act” (Ill. Rev. Stat. 1975, ch. 48, par. 138.4(h)), without providing for a civil remedy for employees who are so discharged, precludes the plaintiff’s action in the instant case.

The Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) substitutes an entirely new system of rights, remedies, and procedure for all previously existing common law rights and liabilities between employers and employees subject to the Act for accidental injuries or death of employees arising out of and in the course of the employment. (37 Ill. L. & Prac. Workmen’s Compensation sec. 2 (1958).) Pursuant to the statutory scheme implemented by the Act, the employee gave up his common law rights to sue his employer in tort, but recovery for injuries arising out of and in the course of his employment became automatic without regard to any fault on his part. The employer, who gave up the right to plead the numerous common law defenses, was compelled to pay, but his liability became fixed under a strict and comprehensive statutory scheme, and was not subjected to the sympathies of jurors whose compassion for fellow employees often led to high recovery. (See 81 Am. Jur. 2d Workmen’s Compensation sec. 1 et seq. (1976).) This tradeoff between employer and employee promoted the fundamental purpose of the Act, which was to afford protection to employees by providing them with prompt and equitable compensation for their injuries. See O’Brien v. Rautenbush (1956), 10 Ill. 2d 167.

The Workmen’s Compensation Act, in light of its beneficent purpose, is a humane law of a remedial nature. (Shell Oil Co. v. Industrial Com. (1954), 2 Ill. 2d 590.) It provides for efficient remedies for and protection of employees and, as such, promotes the general welfare of this State. Consequently, its enactment by the legislature was in furtherance of sound public policy. (Deibeikis v. Link-Belt Co. (1914), 261 Ill. 454.) We are convinced that to uphold and implement this public policy a cause of action should exist for retaliatory discharge.

While noting that in 1975, subsequent to plaintiff’s discharge, the Workmen’s Compensation Act was amended making it unlawful for an employer to interfere with or to coerce the employee in the exercise of his rights under the Act (111. Rev. Stat. 1975, ch. 48, par. 138.4(h)), the employer argues that as of the time of plaintiff’s discharge, the legislature had neither prohibited nor provided for any remedy for a discharge resulting from the filing of a workmen’s compensation claim. As such, its authority to terminate the employee, whose contract was at will, was absolute. In this regard he cites various statutes in which the legislature has seen fit to limit the employer’s right to discharge (the wage assignment act (111. Rev. Stat. 1975, ch. 48, par. 39.11), the Service Men’s Employment Tenure Act (111. Rev. Stat. 1973, ch. 126y2, par. 33), and the Fair Employment Practices Act (111. Rev. Stat. 1973, ch. 48, par. 851 et seq.)), and correctly notes that none of these limitations are applicable to the instant case.

We are not convinced that an employer’s otherwise absolute power to terminate an employee at will should prevail when that power is exercised to prevent the employee from asserting his statutory rights under the Workmen’s Compensation Act. As we have noted, the legislature enacted the workmen’s compensation law as a comprehensive scheme to provide for efficient and expeditious remedies for injured employees. This scheme would be seriously undermined if employers were permitted to abuse their power to terminate by threatening to discharge employees for seeking compensation under the Act. We cannot ignore the fact that when faced with such a dilemma many employees, whose common law rights have been supplanted by the Act, would choose to retain their jobs, and thus, in effect, would be left without a remedy either common law or statutory. This result, which effectively relieves the employer of the responsibility expressly placed upon him by the legislature, is untenable and is contrary to the public policy as expressed in the Workmen’s Compensation Act. We cannot believe that the legislature, even in the absence of an explicit proscription against retaliatory discharge, intended such a result.

We recognize that the Court of Appeals for the Seventh Circuit has reached a contrary conclusion in construing the Illinois Workmen’s Compensation Act. In Loucks v. Star City Glass Co. (7th Cir. 1977), 551 F.2d 745, the court considered the question without the benefit of any prior decision of this court on the question involved and held that inasmuch as the legislature had not provided for a prohibition against retaliatory discharge, the employer was free to exercise its traditional right to discharge at will. Decisions of the Federal courts in construing statutes of this State are not binding on this court. For the reasons above stated, we believe that the construction adopted in Loucks contravenes the public policy of this State.

Two recent cases in other States have held that an employee has a cause of action against an employer for retaliatory discharge. Frampton v. Central Indiana Gas Co. (1973), 260 Ind. 249, 297 N.E.2d 425, and Sventko v. Kroger Co. (1976), 69 Mich. App. 644, 245 N.W.2d 151.

In Frampton, the plaintiff had been injured on the job, and received workmen’s compensation. Later, she made a claim for increased disability and received a settlement. Soon thereafter she was fired without cause, and brought an action for retaliatory discharge against the employer. In sustaining the causé of action, the Indiana Supreme Court noted that to prohibit a cause of action under such circumstances would be to sanction the ability of employers to coerce employees into forgoing their rights and by so doing unilaterally defy and destroy the function of the State’s workmen’s compensation act. See 2A A. Larson, Workmen’s Compensation sec. 68.36 (Supp. 1978).

Similarly, in Sventko, the plaintiff was discharged for filing a workmen’s compensation claim against her employer. The Michigan Appellate Court, in holding that the employee should have an action for retaliatory discharge, stated that an “employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of [the] state.” 69 Mich. App. 644, 647, 245 N.W.2d 151, 153.

There are decisions of other State courts that have held to the contrary (see Annot., 63 A.L.R.3d 979, 983 (1975)). We believe, however, that the reasoning in Frampton and Sventko is persuasive and conforms with the public policy expressed by the legislature in our workmen’s compensation act. Concerning the decision of Frampton v. Central Indiana Gas Co., we agree with the comment of Professor A. Larson that “[i]t is odd that such a decision was so long in coming.” (2A A. Larson, Workmen’s Compensation sec. 68.36 (Supp. 1978).) We do not agree with the employer’s argument that Frampton is distinguishable from the instant case because the Indiana Supreme Court “placed express reliance on Indiana’s statutory language prohibiting any ‘device’ to circumvent employers’ liabilities under the Act,” (Loucks v. Star City Glass Co. (7th Cir. 1977), 551 F.2d 745, 748), and because no analogous language can be found in the Illinois statute. While the Indiana Supreme Court may have used the statutory language to buttress its decision, the overriding principle enunciated by the court is that the workmen’s compensation statute embraced the important public policy that compensation should be available to injured workers. Certainly it cannot be argued that the absence of any language from the Act prohibiting devices whereby employers may circumvent their duties under the Act can be interpreted to mean that retaliatory discharge is less repugnant to the public policy of this State than it is to that of Indiana.

The employer argues that the exclusivity provision of section 11 of the Act, which provides that the provisions of the Act “shall be the measure of the responsibility of any employer” (Ill. Rev. Stat. 1973, ch. 48, par. 138.11) precludes an action for retaliatory discharge. Motorola argues that this conclusion is compelled because the section clearly shows that the legislature intended that the Act should be exclusive in providing for employees ’ rights and remedies. We do not agree. First, that section was meant to limit recovery by employees to the extent provided by the Act in regard to work-related injuries, and was not intended to insulate the employer from independent tort actions. Second, we cannot accept a construction of section 11 which would allow employers to put employees in a position of choosing between their jobs and seeking their remedies under the Act. As we have already discussed, to prevent such anomalous results it is necessary to allow an action for retaliatory discharge. It would be illogical to bar the action on the basis of language of the Act itself, the fundamental purpose of which is to ensure rights and remedies to employees who have compensable claims. Accordingly, we feel it is improper to interpret section 11 in the manner suggested by the employer.

The employer argues that the absence of any provisions for civil remedies for retaliatory discharge in the 1975 amendments, which make it a criminal offense for an employer to threaten or effect such a discharge (Ill. Rev. Stat. 1975, ch. 48, par. 138.4(h)), is a conscious decision by the legislature that no such civil remedy shall exist. We do not agree. As we have noted, retaliatory discharge is offensive to the public policy of this State as stated in the Workmen’s Compensation Act. This policy can only be effectively implemented and enforced by allowing a civil remedy for damages, distinct from any criminal sanctions which may be imposed on employers for violating the Act after 1975. The imposition of a small fine, enuring to the benefit of the State, does nothing to alleviate the plight of those employees who are threatened with retaliation and forgo their rights, or those who lose their jobs when they proceed to file claims under the Act. It is conceivable, moreover, that some employers would risk the threat of criminal sanction in order to escape their responsibility under the Act. Further, the fact that an act is penal in nature does not bar a civil remedy, and where a statute is enacted for the benefit of a particular class of individuals a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned. Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152.

In Teale v. Sears, Roebuck & Co. (1976), 66 Ill. 2d 1, this court held that a discharged employee had no cause of action for compensatory and punitive damages for discharge from employment in violation of what was referred to as the “Age Discrimination Act” (Ill. Rev. Stat. 1975, ch. 48, pars. 881 to 887). In that case the Act did not specifically authorize a civil action for damages, but it did provide for a criminal penalty for a violation of the Act. However, this court found within the language of the Act an “internal restriction [which] strongly militates against, if indeed it does not preclude, expansion of the statutory sanction by implication.” (66 Ill. 2d 1, 5.) The court found the restrictive inference that flows from the language of the statute conclusive when compared to civil remedies which the General Assembly had expressly provided for other types of employment discrimination.

We now consider the award of $25,000 punitive damages. In this connection, two points merit consideration, first, whether punitive damages may generally be awarded in cases for retaliatory discharge, and second, whether the jury’s award for such damages was proper in the instant case.

It has long been established in this State that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others (Consolidated Coal Co. v. Haenni (1893), 146 Ill. 614). Where punitive damages may be assessed, they are allowed in the nature of punishment and as a warning and example to deter the defendant and others from committing like offenses in the future. (Eshelman v. Rawalt (1921), 298 Ill. 192, 197.) And, while the measurement of punitive damages is a jury question, the preliminary question of whether the facts of a particular case justify the imposition of punitive damages is properly one of law. Knierim v. Izzo (1961), 22 Ill. 2d 73, 87.

In the absence of the deterrent effect of punitive damages there would be little to dissuade an employer from engaging in the practice of discharging an employee for filing a workmen’s compensation claim. For example in this case, the plaintiff was entitled to only $749 compensatory damages. We noted above the very real possibility that some employers would risk the threat of criminal sanction in order to escape their responsibilities under the Act. The statute makes such conduct, as is involved in this case, a petty offense (Ill. Rev. Stat. 1975, ch. 48, par. 138.26), which is punishable by a fine not to exceed $500 (Ill. Rev. Stat. 1975, ch. 38, par. 1005—9—1(4)). The imposition on the employer of the small additional obligation to pay a wrongfuHy discharged employee compensation would do little to discourage the practice of retaliatory discharge, which mocks the public policy of this State as announced in the Workmen’s Compensation Act. In the absence of other effective means of deterrence, punitive damages must be permitted to prevent the discharging of employees for filing workmen’s compensation claims.

Contrary to the arguments presented by the defendant, there is no persuasive reason to totally rule out an award of punitive damages in an action for retaliatory discharge. The cases and authorities cited by defendant in support of his arguments are inapposite. Those cases and authorities recognize the generally accepted proposition that exemplary damages are not recoverable for wrongful discharge. (See, e.g., 56 C.J.S. Master and Servant sec. 58 (1948).) However, the validity of this proposition rests on the fact that such a cause of action sounds in contract (53 Am. Jur. 2d Master and Servant sec. 63 (1970)), and traditionally actions for breach of contract have not given rise to claims for punitive damages (see 11 Williston, Contracts sec. 1340 (3d ed. 1968)). However, the general rule has no application where, as here, the cause of action is premised upon a separate and independent tort. (Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, rev’d on other grounds (1976), 64 Ill. 2d 338.) Under such circumstances, when the facts permit, punitive damages may be properly awarded.

However, under the facts of the present case, we are compelled to conclude that the award for $25,000 as punitive damages was improper. As we have noted, the function of punitive damages is similar to that of a criminal penalty, i.e., as a punishment to the wrongdoer and as a means to deter such a wrongdoer and others from committing like offenses in the future. (See Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31.) Because of their penal nature, punitive damages are not favored in the law, and the courts must take caution to see that punitive damages are not improperly or unwisely awarded. (See Eshelman v. Rawalt (1921), 298 Ill. 192, 197.) Adherence to this rule compels us to conclude that punitive damages should not be awarded where, as here, the cause of action forming the basis for their award is a novel one.

In this regard, we find the reasoning of Nees v. Hocks (1975), 272 Ore. 210, 536 P.2d 512, persuasive. In that case, an employee who was dismissed because she went on jury duty brought an action against her employer for retaliatory discharge. The Supreme Court of Oregon sustained the cause of action and allowed the recovery of compensatory damages, but in denying recovery for punitive damages, held:

“If we held that punitive damages could be awarded in the present case we would be permitting the jury to punish defendants for conduct which they could not have determined beforehand was even actionable. The assessment of punitive damages has some of the same functions as the sanctions of criminal law [citation]. The sanctions of the criminal law cannot constitutionally be imposed when the criminality of the conduct is not capable of being known beforehand.” (272 Ore. 210, 220-21, 536 P.2d 512, 517.)

Similar considerations apply in the instant case. At the time of plaintiff’s discharge there was no provision in the Act making it unlawful to discharge an employee for seeking relief under its provisions. Also, at that time there was no decision of this court holding that a retaliatory discharge in such cases was actionable. The opinion of the Indiana Supreme Court in Frampton was filed on May 1, 1973, only one month before the plaintiff in this case was discharged. Sventko was not decided by the Michigan Appellate Court until 1976. As against this absence of authority which would alert the defendant to the existence of a cause of action for discharging the plaintiff for pursuing her compensation claim, there was authority which would have reasonably caused the defendant to conclude that its conduct was not actionable. Plaintiff was an employee not for a specific term but at will, and generally, an employer may discharge such an employee whenever and for whatever cause he chooses without incurring liability. (53 Am. Jur. 2d Master and Servant sec. 43 (1970).) Also, at the time of plaintiff’s discharge, there had been decisions in other States that had held that retaliatory discharge for seeking such relief was not actionable. (Christy v. Petrus (1956), 365 Mo. 1187, 295 S.W.2d 122; Raley v. Darling Shop of Greenville, Inc. (1950), 216 S.C. 536, 59 S.E.2d 148.) In summary, the cause of action asserted here was novel and there was no statutory or judicial pronouncement which would have caused the defendant to believe that its conduct was actionable while there was authority which would reasonably cause one to believe that it was not. Under these circumstances, although we hold that the plaintiff is entitled to compensatory damages, we conclude that it would be extremely unfair to sustain an award against the defendant for punitive damages. (See People v. Patton (1974), 57 Ill. 2d 43; Bassi v. Langloss (1961), 22 Ill. 2d 190; In re Luster (1957), 12 Ill. 2d 25.) We hold that punitive damages may properly be awarded in cases such as the one under consideration for retaliatory discharge subsequent to the date this opinion is filed. However, we hold that it was improper for the trial court to award punitive damages in this case.

In summary, the judgment of the appellate court denying plaintiff a cause of action for retaliatory discharge is reversed. Plaintiff’s award in the amount of $749 compensatory damages by the trial court is affirmed, but the trial court’s order for $25,000 punitive damages is reversed.

Appellate court reversed; circuit court affirmed in part and reversed in part.

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

MR. JUSTICE UNDERWOOD,

concurring in part and dissenting in part:

I write no brief for an employer who tells an industrially injured employee that the employee will be discharged if a claim for compensation is filed. Such statements, even when accompanied by assurances that all expenses connected with the injury will be paid, really do not appeal to one’s sense of fairness. Plaintiff’s arguments in favor of a cause of action for retaliatory discharges, if limited to compensatory damages, have considerable appeal, and such an action may well be a desirable remedy for such discharges. My disagreement with the majority stems from my belief that the merits of those arguments were clearly for the legislature to assess, the legislature did not adopt them, and the majority opinion in this case is, it seems to me, simply a substitution of the preferences of a majority of the members of this court for the considered judgment of the General Assembly.

It is only stating the obvious to say that it is fundamental in our system of government that the law-making function is vested in the legislative branch. The majority’s intrusion into the legislative field in this case typifies the lack of judicial self-restraint which has been a source of concern and comment throughout our history. Mr. Chief Justice Marshall spoke to it as follows: “[The judicial] department has no will in any case. *** Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.” (Osborn v. Bank of the United States (1824), 22 U.S. (9 Wheat.) 738, 866, 6 L. Ed. 204, 234.) It is essential to a preservation of the separation of powers that those of us who serve in the judicial branch subordinate our desires and preferences to the actions of the legislative and executive branches as long as those are expressed in constitutional terms.

Mr. Justice Harlan, dissenting in Wesberry v. Sanders (1964), 376 U.S. 1, 48, 11 L. Ed. 481, 509, 84 S. Ct. 526, 551, phrased it thus: “The Constitution does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short. The stability of this institution ultimately depends not only upon its being alert to keep the other branches of government within constitutional bounds but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.”

Precisely in point here is the admonition: “But it is not our function to engraft on a statute additions which we think the legislature logically might or should have made.” United States v. Cooper Corp. (1941), 312 U.S. 600, 605, 85 L. Ed. 1071, 1075, 61 S. Ct. 742, 744 (Roberts, J.).

My colleagues’ assertion that their creation of a civil remedy is required in order to adequately implement the beneficent purpose of the Workmen’s Compensation Act makes one wonder why, if the need was so great, the question had not been presented earlier in the more than 65 years of the Act’s existence. Nor do I understand how it is that on the basis of a record devoid of proof of the frequency of retaliatory discharges the majority is able to discern so much more clearly than the legislature that the Act “would be seriously undermined” without this new remedy which the court now manufactures.

The employment contract in this case was terminable at the will of either party as the majority concedes. But by the action it takes today, the majority transforms that contract, as the Court of Appeals for the Seventh Circuit suggested, into tenured employment for every employee who files a compensation claim against an employer. “Certainly it could be argued that acceptance of *** [plaintiff’s] claim here would be tantamount to writing into the Illinois statute a provision for tenure in the event of an industrial injury.” (Loucks v. Star City Glass Co. (7th Cir. 1977), 551 F.2d 745, 746-47.) Henceforth, no matter how indolent, insubordinate or obnoxious an employee may be, if he has filed a compensation claim against an employer, that employer may thereafter discharge him only at the risk of being compelled to defend a suit for retaliatory discharge and unlimited punitive damages, which could well severely impair or destroy the solvency of small businesses.

As the majority notes, a 1975 amendment to the Workmen’s Compensation Act makes it a criminal offense for an employer to threaten or effect a discharge in retaliation for an employee’s exercise of his rights under the Act. (Ill. Rev. Stat. 1975, ch. 48, par. 138.4(h).) While that amendment post-dated the episode with which we deal in this case, it is certainly relevant and illuminating of the General Assembly’s understanding of the Workmen’s Compensation Act and the legislative intent in adopting the amendment. Obviously the Act had not been thought to preclude retaliatory discharges and to provide to one so discharged a cause of action for damages, for, if it did, the amendment was unnecessary. We presume the legislature did not intend to perform a useless act (People v. McCoy (1976), 63 Ill. 2d 40, 45), and the rule is that “where a statute is amended, it will be presumed that the legislature intended to effect some change in the law as it formerly existed. [Citation.] ” (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 373.) In adopting the 1975 amendment, it is clear to me that the members of the General Assembly thought they were creating, for the first time, a remedy for retaliatory discharges and established what they considered to be a sufficient deterrent. They did not include civil liability on the part of the employer to the discharged employee. It is unrealistic to suppose that those who drafted, those who sponsored and the members of the General Assembly which adopted the Illinois law on retaliatory discharges simply ignored the question of civil remedies if those remedies are in fact as vital to the effective administration of the Act as the majority now asserts. Had it been thought either necessary or desirable, a civil action for such damages as were considered appropriate would have been included in the comprehensive and integrated Workmen’s Compensation Act just as it has been in similar legislative enactments hereinafter referred to. Not to be deterred by these considerations, however, my colleagues state in exercising their superior wisdom that the policy against retaliatory discharge “can only be effectively implemented and enforced by allowing a civil remedy for damages” (74 Ill. 2d at 185).

I do not doubt that the majority is “convinced that to uphold and implement this public policy a cause of action should exist for retaliatory discharge,” as the opinion states (74 Ill. 2d at 181), but that fact should be irrelevant, for the legislature was not so convinced. Today’s decision, it seems to me, simply usurps the power and function of the legislative branch of government — and evidences an unwillingness by the majority to exercise the self-restraint so essential if the judiciary is to maintain its proper function. No matter how emotionally appealing the situation presented, our law-making power lies only within the limits of our common law heritage and the mandate of our constitutions; it does not include amending specific legislation which we feel, however rightly, is lacking in some respect. Particularly does it not include providing a cause of action including both compensatory and punitive damages which the General Assembly deliberately omitted.

In creating this cause of action, the majority has effectively overruled this court’s recent opinion in Teale v. Sears, Roebuck & Co. (1976), 66 Ill. 2d 1, while purporting to distinguish it. In Teale, an employee brought a civil action for discharge alleged to be wrongful under the Age Discrimination Act (Ill. Rev. Stat. 1975, ch. 48, pars. 881 through 887.) That Act made it unlawful to discharge a person because of his age and provided a criminal penalty for doing so. The Act contained a legislative declaration of policy far more certain and explicit than the general public policy formulations relied upon by the majority in the case now before the court. Section 1 stated:

“(a) The General Assembly declares that the practice of discriminating in employment against properly qualified persons because of their age is contrary to American principles of liberty and equality of opportunity ***.
***
(c) The right to employment otherwise lawful without discrimination because of age *** is hereby recognized as and declared to be a right of all the people of the State which shall be protected as provided herein.
(d) It is hereby declared to be the policy of the State to protect the right recognized and declared in paragraph (c) of this Section and to eliminate all such discrimination to the fullest extent permitted. This Act shall be construed to effectuate such policy.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 48, par. 881.)

Despite this strong statement of public policy this court unanimously declined to expand that statute and held that no civil remedy for the alleged wrongful discharge existed. Mr. Justice Schaefer, speaking for the court, first noted that “[t] he Act does not expressly authorize a civil action for damages.” (66 Ill. 2d 1, 4.) He then stated:

“And when we look beyond the terms of this statute and examine the civil remedies which the General Assembly has expressly provided for other types of discrimination, the restrictive inference that flows from the language of the statute itself becomes conclusive. Some of the variant forms of sanction are these:
Discrimination in employment under contracts for public buildings or public works on account of race, color, sex or national origin is prohibited, and a violation is a Class B misdemeanor. The statute also specifically provides for recovery (apparently in the same amount as the criminal fine) in a civil action brought by the aggrieved person. Ill. Rev. Stat. 1973, ch. 29, pars. 21, 22.
Any official or operator of any public place of accommodation or amusement who discriminates against any person by reason of race, religion, color, national ancestry or physical or mental handicap is guilty of a Class B misdemeanor and is specifically made liable to the person aggrieved for not less than $100 nor more than $1,000 to be recovered in a civil action. Additional remedies by way of injunction and abatement of nuisance are also provided. Ill. Rev. Stat. 1973, ch. 38, pars. 13—1 through 13—4.
Any hospital which has been adjudicated to have denied admission to any person because of race, color or creed, loses its exemption from taxation. Ill. Rev. Stat. 1973, ch. 120, par. 500.7.
Any member of a school board, superintendent, principal or other school officer who seeks information concerning the color, race, nationality, religion or religious affiliation of any person in connection with his employment or assignment, is liable to a penalty of not less than $100 nor more than $500 to be recovered by the person aggrieved in a civil action, and in addition is guilty of a Class B misdemeanor. Ill. Rev. Stat. 1973, ch. 122, par. 24—4.
The carefully limited civil remedies authorized by these statutes demonstrate, in our opinion, that it would be incongruous to derive by implication a right to recover unlimited damages for a violation of this statute.” 66 Ill. 2d 1, 5-6.

The court in Teale also relied on the legislatively declared restriction that the right thereby created “shall be protected as provided herein.” Similarly the Workmen’s Compensation Act in the case before us states that the provisions of the Act “shall be the measure of the responsibility of any employer ***.” (Ill. Rev. Stat. 1973, ch. 48, par. 138.11.) Certainly this language is at least as restrictive as that which the Teale court held precluded the very civil remedy which a majority of this court now creates. Teale is not only persuasive in its reasoning, it is controlling precedent to which this court should adhere, or, at least, have the candor to overrule.

The majority seemingly believes the Frampton (Frampton v. Central Indiana Gas Co. (1973), 260 Ind. 249, 297 N.E.2d 425) and Sventko (Sventko v. Kroger Co. (1976), 69 Mich. App. 644, 245 N.W.2d 151) decisions support its emotional approach to this case. The Frampton court, however, upheld the cause of action for retaliatory discharge because it found such a discharge to be a “device” which the Indiana statute specifically prohibited. No similar language appears in our act. Also, neither the Indiana nor Michigan legislature had prescribed penalties for retaliatory discharges as ours has done. In fact, the majority of courts that have considered this question have denied recovery, refusing to recognize a private cause of action for retaliatory discharge. In the most recent case, Loucks v. Star City Glass Co. (7th Cir. 1977), 551 F.2d 745, the court, in interpreting Illinois law, determined that the absence of a provision in the Workmen’s Compensation Act creating a private cause of action was a deliberate policy decision of the Illinois legislature: “We think it rather unlikely that a retaliatory discharge prohibition would have been omitted from this comprehensive and integrated legislation if it had been intended.” 551 F.2d 745, 748. See also Christy v. Petrus (1956), 365 Mo. 1187, 295 S.W.2d 122; Narens v. Campbell Sixty-Six Express, Inc. (Mo. 1961), 347 S.W.2d 204; Raley v. Darling Shop of Greenville, Inc. (1950), 216 S.C. 536, 59 S.E.2d 148.

Since I do not agree that a cause of action exists for either compensatory or punitive damages, I concur with the court’s holding that punitive damages are not available to plaintiff in this case. I disagree with the obiter dicta statements regarding the availability of punitive damages in future cases. As was pointed out in the dissenting opinion in Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 150: “The doctrine of punitive damages is not favored by law [citations], and the power of giving punitive damages should be exercised with great caution and they should be properly confined within the narrowest of limitations [citation].” Surely where the legislature has forbidden certain actions and provided a specific penalty for a violation, this court has no authority, on generalized policy grounds, to hold the legislated penalty insufficient and provide a stiffer one. Obviously, the General Assembly felt that the penalty it decided upon was sufficient; otherwise, of course, it would have provided a more severe penalty, civil remedies or both.

As Mr. Justice White, dissenting, said in Roe v. Wade (1973), 410 U.S. at 222, 35 L. Ed. 2d at 196, 93 S. Ct. at 763: “As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”

I would affirm the judgment of the appellate court.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 50514.
    UNITED ELECTRIC COAL CO., Appellant, v. THE INDUSTRIAL COMMISSION et al.—(Joseph Cole, Appellee.)

      Opinion filed Nov. 22, 1978.
    Rehearing denied Jan. 25, 1979.

      Henry D. Noetzel & Associates, Ltd., of Peoria (J. Jay Robeson, of Springfield, of counsel), for appellant.
    Westervelt, Johnson, Nicoll & Keller, of Peoria (Robert D. Jackson, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The issue is whether the award of the Industrial Commission, confirmed by the circuit court of Peoria County, was against the manifest weight of the evidence. The claimant, Joseph Cole, was employed by the respondent, United Electric Coal Co., for 28 years, during which time he was exposed to coal dust. From 1959 until June 1973, when he retired, he operated a “shovel,” similar to a steam shovel, in respondent’s strip mine in Illinois; and from 1945 until 1959 he worked underground in respondent’s mine in Kentucky. The arbitrator, finding the claimant “wholly and permanently incapable of work,” awarded him $75 weekly for 304 weeks, $16 for one week, and $2,592 annually as a pension. The Commission affirmed the award. Respondent appeals to us pursuant to Rule 302(a) (58 Ill. 2d R. 302(a)).

Section 1(d) of the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1973, ch. 48, par. 172.36(d)) provides:

“In this Act the term ‘Occupational Disease’ means a disease arising out of and in the course of the employment. Ordinary diseases of life to which-the general public is exposed outside of the employment shall not be compensable ***.
A disease shall be deemed to arise out of the employment only if there is apparent to the rational mind *** a direct causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workmen would have been equally exposed outside of the employment. ***
An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time however short, he is employed in an occupation or process in which the hazard of the disease exists ***.
The employer liable for the compensation in this Act provided \sic ] shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease claimed upon regardless of the length of time of such last exposure ***.”

Applying this legislative standard, the Commission concluded the claimant has pneumoconiosis or black lung disease which was caused by and during his employment with the respondent. We cannot substitute our judgment for that of the Commission unless its finding is contrary to the manifest weight of the evidence. (Caterpillar Tractor Co. v. Industrial Com. (1976), 63 Ill. 2d 153, 159.) We conclude the circuit court and the Commission were correct.

Respondent admits that claimant worked for it from 1959 to 1973 in Illinois and has not denied that he also worked for it from 1945 to 1959 in Kentucky. Respondent also admits that claimant was exposed to coal dust during those 28 years. However, respondent contends the evidence fails to show that the claimant has pneumoconiosis; that, if he does have it, it was contracted while in the employ of respondent; or that he was permanently disabled.

The claimant testified he noticed in 1970 a shortness of breath which became worse in 1971 after he made routine climbs necessary in his job. After leaving the respondent in June 1973 at the age of 67, he moved back to Kentucky, where he found it difficult to work in a plant and shrubbery store. At the time of his testimony, he had been receiving treatment from a respiratory clinic, suggested by Dr. Stanley Bugaieski, the respondent’s medical expert here.

Dr. Bugaieski’s report, offered by the respondent, stated that the claimant suffered from “obstructive airways disease” and has a history which “support[s] significant disability.” Dr. Bugaieski was unwilling to say the claimant suffered from pneumoconiosis and that he was permanently disabled.

The depositions of Drs. William G. West, Jr., and Neil Calhoun were offered by the claimant. (The respondent has objected to their admission, but it failed to raise this issue in the circuit court on review so we will not consider its objection here. (Allis-Chalmers Manufacturing Co. v. Industrial Com. (1966), 35 Ill. 2d 367, 371-72.)) Both doctors, by way of hypothetical and direct assertion, stated that, on the basis of X-ray film, his occupational history and their examinations, they concluded the claimant suffered from pneumoconiosis. Dr. West, whose patients include many coal miners suffering from black lung disease, said that the claimant had a history of coal-dust exposure and shortness of breath, and that he was completely disabled for mining work although he might be capable of other, light work. Dr. Calhoun, whose patients also include coal miners, testified that the claimant suffered from severe pulmonary disease rendering the claimant totally disabled.

We believe the Commission had sufficient evidence on which to base its award to the claimant for total and permanent disability. The claimant carried his burden of proving the existence of occupational disease due to employment under section 1(d) of the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1973, ch. 48, par. 172.36(d)). (Since the claimant here did go forward with this proof, we find it unnecessary to determine whether or not that portion of section 1(d), establishing a presumption in favor of a coal miner suffering from pneumoconiosis and effective July 1, 1973, is applicable.)

For the reasons stated, we affirm the judgment of the circuit court.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 50404.
    JAMES V. HUNT, JR., Adm’r, et al., Appellants, v. ROBERT BLASIUS et al.—(Fosco Fabricators, Appellee.)

      Opinion filed Dec. 4, 1978.
    Rehearing denied Jan. 25, 1979.

      Costigan & Wollrab, of Bloomington (William F. Costigan and James T. Finegan, of counsel), and Holland H. Stimson, of Chicago, for appellants.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Thomas M. Barger III, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This action arose out of an automobile accident on April 30, 1970. Two occupants of a car were killed and three others seriously injured when the car left the paved portion of Interstate Highway 55 near Normal and collided with the post of an exit sign. An action was filed on behalf of the five occupants (plaintiffs) in the circuit court of McLean County against four defendants, three of whom were dismissed. We are concerned here only with defendant Fosco Fabricators (Fosco).

Plaintiffs’ amended complaint alleged that Fosco designed, constructed and installed the exit sign post upon specifications required by the State of Illinois. Plaintiffs advanced two theories of recovery: negligence and strict liability. Under both theories, plaintiffs averred that Fosco should be liable because it (1) failed to follow “modem methods of highway construction,” (2) failed to make the post of a “break-away” design, (3) used steel and concrete to construct and anchor the post, and (4) installed the post “within three feet of the surface” of the highway.

Fosco filed a motion for summary judgment. In support of its motion, Fosco submitted the affidavit of Alvin Jensen, a district traffic engineer for the State’s Department of Transportation. The uncontroverted affidavit established the following: The exit sign, which was 17 feet high and 16 feet wide and bore the legend “Normal-El Paso,” was supported by two posts; the posts were constructed of wide-flange steel and embedded in concrete; the combined weight of the posts was 2,325 pounds; the post nearer the highway was approximately five feet from the outer edge of the shoulder of the highway; the sign and supporting posts were designed, constructed and installed by Fosco in strict conformity to specifications mandated by the State of Illinois; and the work was completed in October 1966 (3V2 years prior to the instant accident) and subsequently approved and accepted by the State.

The trial court granted Fosco’s motion for summary judgment and entered an order specifically finding that, when the State approved and accepted the work, Fosco, as an independent contractor, was relieved of liability to any third persons in negligence and in strict liability. The appellate court affirmed. It accepted the trial court’s rationale on the negligence counts and held that an independent contractor who designs a product according to specifications mandated by a government entity is not liable to third persons in strict liability. (55 Ill. App. 3d 14.) We granted plaintiffs leave to appeal.

Both the trial and appellate courts predicated the dismissal of the negligence count on the general rule that an independent contractor is not liable to third persons for injuries which occurred after the completed work was accepted by, in this case, the State of Illinois. Both courts referred to exceptions which have been engrafted onto the rule, particularly the exception that a contractor may be liable if the work done is “imminently dangerous” to the life or health of third persons. They concluded that the “imminently dangerous ” exception applies only to “explosives, poisonous drugs, and the like” and therefore was not applicable to the facts in this case. As a result they applied the general rule of nonliability.

Since its inception in Illinois, the general rule, a corollary of the doctrine of privity of contract, has been applied not only to independent contractors, but to all suppliers of chattel. (Watts v. Bacon & Van Buskirk (1959), 18 Ill. 2d 226, 231-32; Lindroth v. Walgreen Co. (1950), 407 Ill. 121, Davidson v. Montgomery Ward & Co. (1912), 171 Ill. App. 355, 362-64.) Under strict adherence to the general rule, a contractor, manufacturer or vendor whose negligence caused injury to a third person would not be liable to that person because no contractual relation existed between the parties. To ameliorate this harsh result, Illinois courts gradually broadened the scope of the exceptions to the rule so that tort liability could be imposed on negligent independent contractors and manufacturers. Colbert v. Holland Furnace Co. (1928), 333 Ill. 78 (independent contractor); Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28 (independent contractor); Rotche v. Buick Motor Co. (1934), 358 Ill. 507 (manufacturer); Beadles v. Servel Incorporated & Union Gas & Electric Co. (1951), 344 Ill. App. 133 (manufacturer).

Finally, in the case of Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, this court expressly rejected the general rule of nonliability. The court traced the erosion of the general rule to the persuasive reasoning of Mr. Justice Cardozo in MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382 111 N.E. 1050, in which the “imminently dangerous” exception, previously reserved for such products as explosives and poisons, was extended to encompass any product which would, with reasonable certainty, place life and limb in peril when negligently made. The court recognized that the extension of the “imminently dangerous” exception made the general rule of nonliability obsolete. The court declared that the “general rule [in Illinois], rather than the exception to a so-called ‘general rule’, is that a manufacturer may be liable for injuries to a person not in privity with him and that such liability is governed by the same principles governing any action for negligence.” Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 616-17.

Although the Suvada case specifically involved the liability of a manufacturer, the court declared that the principle applies similarly to all parties, including independent contractors, whose negligence caused injury to persons outside their contractual relations. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 617, citing as an example of independent contractor liability Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28.) This conclusion comports with section 404 of the Restatement (Second) of Torts, which section reads:

“One who as an independent contractor negligently makes, rebuilds, or repairs a chattel for another is subject to the same liability as that imposed upon negligent manufacturers of chattel.” (Restatement (Second) of Torts sec. 404 (1965).)

Accord, Prosser, Torts sec. 104, at 680-81 (4th ed. 1971); 41 Am. Jur. 2d Independent Contractors sec. 50 (1968).

The general rule of nonliability having been discarded, we must examine the negligence count according to the traditional requirements of such an action. Liability in negligence arises only if the independent contractor has breached a duty owed to persons whose injuries proximately resulted from the breach. In the case at bar, Fosco designed, constructed and installed the exit sign post upon specifications provided by the State of Illinois. It is conceded that Fosco fully complied with the specifications. Plaintiffs, nevertheless, allege that Fosco owed a duty to plaintiffs “to utilize its judgment in the exercise of reasonable care in the construction, design and installation of said exit sign pole.” We disagree.

An independent contractor owes no duty to third persons to judge the plans, specifications or instructions which he has merely contracted to follow. If the contractor carefully carries out the specifications provided him, he is justified in relying upon the adequacy of the specifications unless they are so obviously dangerous that no competent contractor would follow them. (Restatement (Second) of Torts sec. 404, Comment a (1965); Prosser, Torts sec. 104, at 681-82 (4th ed. 1971); 41 Am. Jur. 2d Independent Contractors sec. 50 (1968).) The rule, as expressed in the oft-cited case of Ryan v. Feeney & Sheehan Building Co. (1924), 239 N.Y. 43, 46, 145 N.E. 321, 321-22, is as follows:

“A builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow, unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury.” (Cited with approval in Leininger v. Stearns-Roger Manufacturing Co. (1965), 17 Utah 2d 37, 41-42, 404 P.2d 33, 36; Davis v. Henderlong Lumber Co. (N.D. Ind. 1963), 221 F. Supp. 129, 134; Person v. Cauldwell-Wingate Co. (2d Cir. 1951), 187 F.2d 832, 835, cert. denied (1951), 341 U.S. 936, 95 L. Ed. 544, 71 S. Ct. 855.)

Plaintiffs’ complaint fails to allege that the specifications were so flawed that Fosco should have been put on notice that the product would be dangerous and likely to cause injury. It also fails to provide any facts from which a court might infer that the specifications were so glaringly dangerous that Fosco should have refrained from complying with the specifications. We find no basis upon which Fosco can be held liable in negligence for merely complying with the State’s contract specifications.

The elements of a cause of action in strict products liability, of course, differ markedly from their counterparts in negligence. To recover in strict liability, the injury must result from a condition of the product, the condition must be unreasonably dangerous and the condition must have existed at the time the product left the manufacturer’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623.) This court has grappled numerous times with the evasive concept of the “unreasonably dangerous condition.” In Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill. 2d 339, 342-43, this court recounted a litany of authorities who have attempted to define the scope of the concept. The court concluded that the premise common to each is 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.” Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill. 2d 339, 342.

Plaintiffs allege, quite simply, that the steel and concrete design of the exit sign post was defective because it was not reasonably safe in the event that automobiles left the paved portion of the highway and collided with the post. They contend that posts of a “break-away” design should have been used to avoid subjecting motorists to an unreasonable risk of injury, in that collisions with such posts are readily foreseeable when the posts are being used for their intended function; i.e., to support exit signs within a few feet of highways. Even if we were to agree that such collisions are foreseeable, foreseeability alone does not define a manufacturer’s duty in products liability.

A manufacturer is not under a duty in strict liability to design a product which is totally incapable of injuring those who fores eeably come in contact with the product. Products liability does not make the manufacturer an insurer of all foreseeable accidents which involve its product. Virtually any product is capable of producing injury when put to certain uses or misuses. This is particularly true when injury results from a collision with the product. Injuries are not compensable in products liability if they derive merely from those inherent properties of a product which are obvious to all who come in contact with the product. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 467.) The injuries must derive from a distinct defect in the product, a defect which subjects those exposed to the product to an unreasonable risk of harm. The Restatement (Second) of Torts concludes that strict liability applies only when the product is “dangerous to an extent beyond that which would be contemplated by the ordinary [person] ***, with the ordinary knowledge common to the community as to its characteristics.” (Emphasis added.) Restatement (Second) of Torts sec. 402A, comment i (1965).

In the case at bar, plaintiffs have alleged no legally cognizable defect in the sign post. They have merely indicated a preference for “break-away” posts. However valid that preference might be, the availability of an alternative design does not translate into a legal duty in products liability. An action is not maintainable in products liability merely because the design used was not the safest possible. Here, there is no allegation of a defect in the post which affected its intended or actual use — to safely support the sign. The risks which inhered in the collision with the post were the same risks which attend all collisions between motorists and stationary objects which align the highway. In the absence of any facts which would indicate that the post, in supporting the sign, subjected motorists to any unreasonable or unexpected risks, we cannot sustain plaintiffs’ action in strict liability.

Accordingly, we affirm the judgments of the trial and appellate courts with respect to both the negligence and strict liability counts.

Judgments affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (Nos. 50461, 50491 cons.
    DAVID BARTHEL et al., Appellants, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Appellee.

      Opinion filed Nov. 22, 1978.
    Rehearing denied Jan. 25, 1979.

      Thomas F. Londrigan and Roger E. Ryan, of Londrigan & Potter, P.C., of Springfield, for appellants David Barthel and Helen M. Hammond.
    Michael J. Costello, of Springfield, for appellants Scott West and Herbert Rigney.
    George B. Gillespie and Robert E. Gillespie, of Gillespie, Cadigan & Gillespie, of Springfield, for appellee.
    Baker & McKenzie, of Chicago (Francis D. Morrissey and Edward J. Zulkey, of counsel), for amici curiae Atchison, Topeka & Santa Fe Ry. Co. et al.

   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This action resulted from a collision between an automobile and an Illinois Central Gulf Railroad Company freight train in Springfield at about 3:15 a.m. on November 22, 1969. The automobile crashed into a boxcar that was moving slowly over a railroad crossing. The driver, Robert Crifasi, was killed, as were two of his passengers, Frank Robinson and John Wallace. The other passengers, David Barthel, Scott West and Herbert Rigney, suffered injuries. In the ensuing actions in the circuit court of Sangamon County, which were consolidated for trial, Crifasi’s administrator sued the railroad, while the surviving passengers and the administrators of the estates of the deceased passengers sued the railroad and Crifasi’s administrator. The case was tried to a jury on counts of negligence and wilful and wanton misconduct. The jury returned verdicts against Crifasi’s administrator in favor of the surviving passengers and the administrators of the deceased passengers’ estates; verdicts were also returned in favor of the railroad against all plaintiffs. None of the judgments entered on these verdicts was appealed.

All plaintiffs except Crifasi’s administrator, however, appealed the pretrial dismissal of additional counts bottomed upon alleged violations by the railroad of section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) and praying for both compensatory and punitive damages. The trial court dismissed these counts because they failed to allege due care on the part of the plaintiffs or plaintiffs’ decedents, and plaintiffs elected to stand on their complaints. In the appellate court plaintiffs argued strenuously that contributory negligence was not a bar to recovery under section 73 of the Public Utilities Act and therefore their complaints were sufficient without allegations of due care. The appellate court, however, held that contributory negligence was a defense to an action brought under the statute and affirmed the trial court judgment. (55 Ill. App. 3d 816.) We allowed leave to appeal.

Section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) (which remains in effect with some changes in language not pertinent here) provided:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation.”

Relying on this provision, plaintiffs alleged three statutory violations: failure to maintain a crossing in a safe condition (Ill. Rev. Stat. 1969, ch. 114, par. 62), failure to ring a bell when approaching a crossing (Ill. Rev. Stat. 1969, ch. 114, par. 59), and failure to use a headlight on a locomotive (Ill. Rev. Stat. 1969, ch. 114, par. 187). Plaintiffs also alleged violations of four Illinois Commerce Commission (ICC) rules implementing the Public Utilities Act: failure to maintain a crossing in a safe condition (ICC General Order No. 138, Rule 206), failure to maintain signs in asíate of efficiency (ICC General Order No. 138, Rule 208), and failure to operate an automatic flashing light signal to give warning of a train’s passage (ICC General Order No. 138, Rules 342 and 344).

Although section 73 of the Public Utilities Act will support an action for personal injuries resulting from a violation of ICC rules (Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 140), we do not believe that complaints alleging the statutory violations above noted are cognizable under section 73 of the Public Utilities Act. Plaintiffs do not deny that actions merely alleging these violations are liable to the defense of contributory negligence. (Peltz v. Chicago Transit Authority (1975), 31 Ill. App. 3d 948, 952; Sample v. Chicago, Burlington & Quincy R.R. Co. (1908), 233 Ill. 564, 566-67; Spikings v. Wabash R. Co. (7th Cir. 1953), 201 F.2d 492, 498.) Plaintiffs, however, point to the words “any act, matter or thing prohibited, forbidden or declared to be unlawful” in section 73, and they argue that this language includes violations of statutes other than the Public Utilities Act. Plaintiffs therefore contend that the statutory violations alleged are actionable under section 73 and that contributory negligence is not a defense when the action is cast in this form. The initial flaw in this reasoning is that plaintiffs have taken the quoted language out of context. The essence of the statutory provision is: “In case any public utility shall do *** any act *** prohibited *** or shall omit to do any act *** required *** either by any provisions of this Act or any rule *** of the Commission, issued under authority of this Act, such public utility shall be liable ***.” (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77.) Thus by the plain language of the statute only violations of the Act or of ICC rules implementing the Act are actionable under section 73.

We need not address the question whether the administrators of the estates of the deceased passengers may bring death actions under section 73 alleging violations of ICC rules. The principal issue — whether contributory negligence is a defense in a section 73 action — is also raised by the surviving passenger plaintiffs. Its discussion by us should not be construed as indicating any opinion as to the standing of the administrator plaintiffs to raise the issue.

Ordinarily a defendant’s violation of a statute designed to protect human life or property is prima facie evidence of negligence. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 390.) In order to recover, a plaintiff must show that the violation proximately caused his injury and that the statute was intended to protect a class to which he belongs from the kind of injury that he suffered. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 76-79.) Since the violation is only prima facie evidence of negligence, defendant may prevail by showing that he acted reasonably under the circumstances. (Johnson v. Pendergast (1923), 308 Ill. 255, 262-65.) Furthermore, contributory negligence or assumption of the risk will bar recovery unless the statute provides that these defenses are not available. Jenkins v. Chicago & Eastern Illinois R.R. Co. (1972), 5 Ill. App. 3d 954, 964; Browne v. Siegel, Cooper & Co. (1901), 191 Ill. 226, 233.

Section 73 of the Public Utilities Act, however, differs from the ordinary statute in that it expressly creates a cause of action. The provision declares unequivocally that a utility which violates the Act or implementing regulations shall be liable in damages for resulting injuries. Plaintiffs assert that this language is conclusive on the issue of contributory negligence. They argue that the cause of action, being a creature of the statute, bears no relation to the common law concepts of negligence and contributory negligence, and they conclude that since the statute does not provide that contributory negligence shall be a defense, it imposes strict liability on the utility for any violation. We agree with plaintiffs that the statutory provision is incompatible with the ordinary rule that violation of a statute is merely prima facie evidence of negligence. We do not agree, however, that the statute imposes strict liability on public utilities.

The rule in fllinois is that statutes in derogation of the common law are to be strictly construed in favor of persons sought to be subjected to their operation. The courts will read nothing into such statutes by intendment or implication. (Summers v. Summers (1968), 40 Ill. 2d 338, 342; Anderson v. Board of Education (1945), 390 Ill. 412, 422.) This court has held that the Public Utility Act is in derogation of the common law. (Consumers Sanitary Coffee & Butter Stores v. Commerce Com. ex rel. Commonwealth Edison Co. (1932), 348 Ill. 615, 618.) Section 73 is plainly in derogation of the common law because it prevents a defendant who has violated the Act from avoiding liability by showing that he exercised due care under the circumstances. Since the statute is in derogation of the common law, this court will not abrogate the common law defense of contributory negligence unless it plainly appears that the intent of the statute is to impose strict liability.

The courts have found a legislative intent to impose strict liability in several Illinois statutes, such as the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 94 et seq.), the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.), the Coal Mining Act (Ill. Rev. Stat. 1977, ch. 96½, par. 251 et seq.), and the Child Labor Law (Ill. Rev. Stat. 1977, ch. 48, par. 31.1 et seq.). The rationale for reading strict liability into these statutes, however, rests on grounds of social policy inapplicable to the Public Utilities Act. The Restatement (Second) of Torts, after stating the general rule that when a defendant’s negligence consists of violating a statute the plaintiff’s contributory negligence is a defense, notes:

“There are, however, exceptional statutes which are intended to place the entire responsibility for the harm which has occurred upon the defendant. A statute may be found to have that purpose particularly where it is enacted in order to protect a certain class of persons against their own inability to protect themselves.” (Restatement (Second) of Torts sec. 483, comment c (1965).)

In such a case, permitting the defense of contributory negligence would defeat the purpose of the statute. Thus children and intoxicated persons are considered unable to protect themselves, and their contributory negligence consequently does not bar their recovery. (Overocker v. Retoff (1968), 93 Ill. App. 2d 11, 21 (Dramshop Act); Rost v. F.H. Noble & Co. (1925), 316 Ill. 357, 373 (Child Labor Law).) Likewise employees are considered unable to exercise constant vigilance to protect themselves from hazardous working conditions, and statutes enacted to protect employees have therefore long been interpreted to exclude the defense of contributory negligence. Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156, 164 (Structural Work Act); Tomasi v. Donk Bros. Coal & Coke Co. (1912), 257 Ill. 70, 74 (Coal Mining Act). See Prosser, Contributory Negligence as Defense to Violation of Statute, 32 Minn. L. Rev. 105, 118-22 (1948).

In the case of the Public Utilities Act, however, this social policy requiring imposition of strict liability on the defendant does not come into play. To evaluate this issue we must look not to section 73 but to the substantive provisions for violations of which section 7 3 gives a cause of action. Section 73 imposes a broad duty not to violate the Act or ICC rules; section 58 (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 62) gives the Commission power to regulate grade crossings. In General Order No. 138 the Commission promulgated a detailed series of rules prescribing safety precautions to be observed by railroads in connection with grade crossings. These rules are designed to protect not a special class of persons but the general public. Many of the rules are merely declaratory of the common law. Rules 206 and 208, for example, the violation of which is alleged by plaintiffs in this case, impose on railroads the duty to maintain crossings and approaches “safe as to persons and property” and to maintain signs at crossings “in a good state of efficiency.” Because the rules do not specify standards of safety or efficiency, a plaintiff, in order to prove a violation, must demonstrate that defendant’s behavior was unreasonable, just as in a common law negligence action.

Other rules go beyond restating the common law and impose a specific duty on the railroad. Thus Rules 342 and 344, the violation of which is alleged by plaintiffs here, provide that flashing light signals shall operate for not less than 20 seconds before a train approaches a crossing and continue to operate until the rear end of the train clears the crossing. These rules go beyond the common law in that they fix a standard which substitutes for the common law negligence standard of reasonableness. A plaintiff need not show that the railroad was unreasonable, but only that the flashing light did not operate. The rules define specific conduct on the part of a railroad that, by virtue of section 73, will amount to negligence as a matter of law.

The fact that the defendant’s negligence is conclusively presumed from his violation of the statute does not mean, however, that contributory negligence is unavailable as a defense. In none of the instances here does the nature of the rule allegedly violated suggest that a defendant should be strictly liable for its infraction. The comment of Dean Prosser is apposite here:

“When the legislature declares the rule it does not change the nature or theory of the action to be brought for its violation. At most it removes any possible doubt as to the rule and takes away from the jury any issue as to whether such conduct is negligence. *** When the legislature goes beyond existing rules and establishes new ones, *** the courts must inevitably tend, so far as the civil action for the violation is concerned, to look for the field of tort liability which it most nearly resembles and into which it would fall if the rule had developed at common law.” Prosser, Contributory Negligence as Defense to Violation of Statute, 32 Minn. L. Rev. 105, 109 (1948).

Another indication that strict liability would be inappropriate here is the duplication between some of the ICC rules and similar statutory provisions relating to railroads. Plaintiffs’ complaints, for example, charge that, by failing to keep the crossing safe, the railroad violated section 8 of “An Act in relation to fencing and operating railroads” (Ill. Rev. Stat. 1969, ch. 114, par. 62) and Rule 206 (ICC General Order No. 138, Rule 206). It is undisputed that contributory negligence is a defense to an action alleging a violation of section 8. (Sample v. Chicago, Burlington & Quincy R.R. Co. (1908), 233 Ill. 564, 566.) There is no reason to suppose that grounds of social policy exist favoring strict liability for an ICC rule when they do not exist for an identical statutory provision.

Plaintiffs’ only remaining contention is that the mere existence of a statutory provision creating a cause of action for violating a law evinces a legislative intent to impose strict liability on defendants for such violations. We reject this contention. Enough has been said above to demonstrate that the language of section 73 is given its full weight if it is interpreted to mean that violations of the Act or rules will be conclusive evidence of the defendant’s negligence. Moreover, other Illinois statutes dealing with situations resembling negligence impose civil liability for their violation yet do not abrogate the defense of contributory negligence. A statute (Ill. Rev. Stat. 1977, ch. 70, pars. 3, 4), for example, provides that one who operates certain machinery without statutorily prescribed safety devices is liable for any resulting damage. Contributory negligence has been held to preclude recovery in actions based on this statute. (Wabash, St. Louis & Pacific Ry. Co. v. Thompson (1882), 10 Ill. App. 271, 274-75.) Another statute (Ill. Rev. Stat. 1977, ch. 114, par. 80) provides that if a railroad runs any train through a town or city in excess of local speed limits it shall be liable for resulting damage to person or property. Contributory negligence is also a valid defense to actions brought under this statute. Illinois Central R.R. Co. v. Hetherington (1876), 83 Ill. 510, 516.

Accordingly, we hold that contributory negligence is a defense to actions brought pursuant to section 73 of the Public Utilities Act alleging violations of ICC rules implementing the Act. We note that decisions of Arizona and Indiana courts interpreting statutory provisions of their States virtually identical to section 7 3 (Ariz. Rev. Stat. sec. 40—423 (1974); Ind. Code Ann. sec. 8—1—2—107 (Burns 1973)) are in accord with this result. In Southern Pacific Transportation Co. v. Lueck (1975), 111 Ariz. 560, 535 P.2d 599, the court held that a contributorially negligent plaintiff in a crossing accident brought under the statute must, in order to recover, show that the defendant railroad was guilty of wilful and wanton misconduct. In Trustees of Jennie DePauw Memorial Methodist Episcopal Church v. New Albany Water Works (1923), 193 Ind. 368, 140 N.E. 540, the court held that the statute was merely declaratory of the common law and did not create new liability on the part of a defendant.

In view of our disposition of the case, we need not consider plaintiffs’ contention that certain remarks made during the trial of the negligence counts were prejudicial and should not be repeated on trial of the section 73 action.

Accordingly the judgment of the appellate court is affirmed.

Judgment affirmed.


text:
    (No. 50153.
    DONALD E. BARLIANT, d/b/a Mayuba Book Stores, Appellant, v. FOLLETT CORPORATION, Appellee.

      Opinion filed Oct. 6, 1978.
    Rehearing denied Jan. 25, 1979.

      Earl D. Yaffe, of Yaffe, Mark & Barliant, of Chicago, for appellant.
    Brown & Blumberg, of Chicago (Eugene L. Resnick and Stephen E. Smith, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Donald Barliant (doing business as Mayuba Book Stores), the plaintiff and an attorney, filed a class action complaint in the circuit court of Cook County against the defendant, Follett Corporation, a book publisher, alleging breach of contract, fraud, and a deceptive trade practice within the meaning of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1971, ch. 121½, par. 311 et seq.). The defendant’s motion to dismiss the complaint was denied. Judge Charles P. Barrett entered an order, on November 15, 1972, which found that the complaint was properly filed as a class action and stated a cause of action. After a series of reassignments of the case to other judges, Judge Joseph Wosik, on January 23, 1976, vacated Judge Barrett’s order, dismissed the class action, and found no just reason to delay enforcement or appeal of the order. Barliant appealed to the appellate court, which affirmed. (53 Ill. App. 3d 101.) We granted plaintiff leave to appeal. 58 Ill. 2d R. 315.

Judge Wosik vacated Judge Barrett’s prior order which provided:

“(1.) That this cause is properly filed as a Class Action as to all purchasers from the Defendant billed for transportation ‘BKPST TRANS-INS’ — rather than ‘FOB’.
(2.) That the Complaint herein states a good cause of action.”

Although the parties, arguing he exceeded his authority, have made an issue of the propriety of Judge Wosik’s order, we need not reach that question.

Section 57.3(a) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.3(a)) provides:

“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it may be so maintained and describe those whom the court finds to be members of the class. This order may be conditional and may be amended before a decision on the merits.”

The intent is to have the court determine at the earliest possible time the suitability of the case for class action. This cures a significant defect in prior Illinois law because this question would in some instances not be reached until after a case had been tried on the merits. (Forde, Class Actions in Illinois: Toward a More Attractive Forum for this Essential Remedy, 26 De Paul L. Rev. 211, 231 (1977) (hereafter Forde).) Both sides in an action would benefit from an early determination of the propriety of a class action. Allowing a judge to vacate a class action determination by another judge, three years later, is contrary to the objectives of the statute and fosters uncertainty in the litigation. It may be beneficial to the orderly administration of justice for a second judge to set aside an earlier determination of a suitable class action if clearly changed circumstances, and not mere feelings of error, or more complete discovery warranted it; that is within the scope of section 57.3(a). But, that simply is not evident here. (There is indication that Barli ant’s becoming a partner in the law firm of Yaffe & Yaffe (now Yaffe, Mark & Barliant), which represents the plaintiff here, after Judge Barrett’s order but before Judge Wosik’s order, was considered a change of circumstances. It is not clear that this was the basis. However, we believe it was not sufficient justification for dismissing the class suit. Rather, as we decide below (74 Ill. 2d at 237-38), the proper course would have been to disqualify the representing law firm and allow substitution of competent counsel.) Where there has been no clear change of circumstances, a party in a class action should be able to rely on the rulings of a judge lest the party fruitlessly invest much time and effort in preparation. Here, for example, there were three years of discovery involving the hiring of outside consultants, computer expenditures, and depositions. (Federal case law, applying a virtually identical Federal provision (Fed. R. Civ. P. 23), permits a revision of prior rulings but on the basis of changed facts. In Zenith Laboratories, Inc. v. Carter-Wallace, Inc. (3d Cir. 1976), 530 F.2d 508, 512, for example, the court held that a second judge, who had replaced a prior judge in normal rotation, could reverse the prior judge on the basis of a changed factual situation or fuller development of the facts. The changes were the settlement of a related patent-infringement suit which occurred after the initial determination that the class was proper, and the addition of four counts to the plaintiff’s complaint. The court found, as a result, that if the plaintiff were allowed to represent the alleged class, the defendant could assert defenses against the plaintiff not available to other members of that class.) Hence, we are unable to find a justification for Judge Wosik’s order vacating Judge Barrett’s prior finding of a maintainable class action. The second reason for reversing is that the enactment of the class action statute (Ill. Rev. Stat. 1977, ch. 110, par. 57.2 et seq.), after the decision of the appellate court in this case, necessitates a review of Judge Wosik’s order. Whatever the standard he employed here to dismiss the class action, and it is unclear from the record, the recent class action statute is applicable. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 337; Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44, 48.) The question, then, is whether in the instant case the prerequisites of section 57.2, for the maintenance of a class action, are met.

The parties generally agree on the facts, which are thoroughly stated in the appellate court opinion. In January 1971, the defendant computerized its billing system for book sales to the plaintiff and the other class members. This change from the previously manual system encompassed a charge labeled “BKPST TRANS-INS” on the invoices sent to customers who purchased books on credit. These books were shipped via the United States Postal Service at the fourth-class book-post rate. Barliant first objected to this charge in May of 1972 but the defendant refused to refund the accumulated $15 in charges paid by Barliant in the precceding 17 months. Barliant then filed this suit to recover alleged overcharges on behalf of himself and all of Follett’s customers similarly situated. The complaint claimed that the “BKPST TRANS-INS” charge was in excess of the Postal Service charge at the book-post rate and that this violated the defendant’s published terms of sale which were F.O.B. the defendant’s warehouse. Subsequently the circuit court orders we are concerned with were entered.

Section 57.2 of the Civil Practice Act provides:

“(a) An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.”

The plaintiff’s petition for leave to appeal and the defendant’s answer make arguments based on the case law prior to the enactment of the class action provisions. Their supplemental briefs predictably make their points on the bases of the statute and Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320. It is clear that we are not being asked to determine whether or not a cause of action exists. (The appellate court and the defendant concede that a cause of action, at least for some of the alleged class plaintiffs, exists. Moreover, Judge Wosik’s order and the proceeding before Judge F. Emmett Morrissey, who had been assigned the case subsequent to the entry of Judge Barrett’s order and who indicated he would vacate that order, manifest a cause of action. Finally, if the well-pleaded facts of the complaint are accepted as true, as is proper on a motion to dismiss (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329) then the complaint states a good cause of action.) Rather, the propriety of a class action here is at issue. The first prerequisite of numerosity is not in dispute. The defendant is a large book publisher, and, as the record shows, extensively uses the postal system to ship books to its customers. The second and third prerequisites are at the heart of the dispute.

Both the class action statute and Illinois case law require the existence of “questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.” (Ill. Rev. Stat. 1977, ch. 110, par. 57.2(a)(2); e.g., Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336, 347.) The appellate court, in finding this requirement lacking, linked it to the existence of plaintiff’s cause of action for breach of contract and concluded a common question did not exist because the controversy necessitated individual proofs for each alleged class member. “Thus, even if Barliant succeeds in proving his case at a trial, the issue remaining to be resolved to establish a right of recovery in any other class plaintiff is the defendant’s liability.” (53 Ill. App. 3d 101, 107.) The defendant emphasizes this point by arguing “that both overcharges and undercharges were involved [and] will allow recovery by both plaintiffs and defendant. This necessitates examination of each individual transaction.” This argument is not without merit but it ignores two points. First, Steinberg noted that requirement of individual proofs should not be a bar to a class action. (69 Ill. 2d 320, 340-42; see Fiorito v. Jones (1968), 39 Ill. 2d 531, 542-45.) Second, the record shows that the “undercharges” were rather infrequent.

Judge Barrett’s order included “all purchasers from the defendant billed for transportation ‘BKPST TRANS-INS’ — rather than ‘F.O.B.’.” It would exclude all cash or “noncharge” customers of the defendant (since they were required to pay for postage and handling costs in advance and the defendant would have no reason to bill them). It would exclude purchasers whose orders were shipped by commercial carriers. It would exclude from the class those receiving book shipments weighing in excess of 100 pounds because such shipments may not be sent by the book-post rate of the postal service. It would exclude shipments which had the postage prepaid. These exclusions narrow the class significantly, making identification feasible. Concomitantly, there is a more readily identifiable common question which predominates: whether the addition of the charge, BKPST TRANS-INS, on the invoice violates the sales agreement which specified the books would be shipped F.O.B. defendant’s warehouse in Chicago. The presence of the common question of fact or law is all that the statute and Steinberg (69 Ill. 2d 320, 338) require for fulfillment of the second prerequisite. Accord, Fed. R. Civ. P. 23(a)(2). See also Forde, at 218-25, 229-30; Ill. Ann. Stat., ch. 110, par. 57.2, Supplement to Historical and Practice Notes, at 70 (Smith-Hurd Supp. 1978).

The third prerequisite is that the “representative parties will fairly and adequately protect the interest of the class.” (Ill. Rev. Stat. 1977, ch. 110, par. 57.2(a)(3).) While the suit was pending, the plaintiff, Donald Barliant, became a partner in the law firm of Yaffe & Yaffe (now Yaffe, Mark & Barliant), which has been representing the plaintiff, and class, from the start. (Prior to joining the firm, the plaintiff shared office space with Yaffe & Yaffe.) The defendant maintains that the plaintiff’s partnership with the firm representing him and the class impairs his ability to adequately represent the class due to conflict of interest. We agree. The courts must be vigilant in their concern for the quality of class representation. Due process requires that the representation be adequate before absent class members will be bound by the results of the suit. Hansberry v. Lee (1940), 311 U.S. 32, 42-43, 85 L. Ed. 22, 27-28, 61 S. Ct. 115, 118-19.

While this court has not decided this question before, we did refer to it in Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill. 2d 583, 588. The appellate court, in Barliant v. Houghton Mifflin Co. (1977), 45 Ill. App. 3d 494, 496, a similar class suit involving the plaintiff in the instant case, held that a person may not act as both plaintiff and attorney for the class. (Accord, Hamer v. Board of Education (1977), 52 Ill. App. 3d 531, 538-40.) Its rationale was based on Federal court decisions which have interpreted language (Fed. R. Civ. P. 23(a)(4)) identical to section 57.2(a)(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.2(a)(3)). The vast majority of Federal case law is in accord with the Illinois appellate court. (E.g., Susman v. Lincoln American Corp. (7th Cir. 1977), 561 F.2d 86, 92-96; Brick v. CPC International, Inc. (2d Cir. 1976), 547 F.2d 185, 186; Kramer v. Scientific Control Corp. (3d Cir. 1976), 534 F.2d 1085, 1089-91; Turoff v. May Co. (6th Cir. 1976), 531 F.2d 1357, 1360.) The reasoning of cases holding that an attorney may not have the dual role of plaintiff and attorney for the class is that conflict results from the fact that the class attorney is the financial beneficiary of the action. This factor may result in the attorney - class representative acting in a manner inconsistent with the interests of the class. (Turoff v. May Co. (6th Cir. 1976), 531 F.2d 1357, 1360.) Courts have also been concerned with spurious or manufactured litigation and champerty in class actions involving a class representative who is also the class attorney. (See Shields v. Valley National Bank (D. Ariz. 1971), 56 F.R.D. 448, 450; accord, Byrnes v. IDS Realty Trust (D. Minn. 1976), 70 F.R.D. 608, 614.) Ethical considerations have also been the source for prohibiting the dual role. In Kramer v. Scientific Control Corp. (3d Cir. 1976), 534 F.2d 1085, 1090, the court was concerned about the appearance of impropriety (Canon 9 of the ABA Code of Professional Responsibility) as was the court in Zylstra v. Safeway Stores (5th Cir. 1978), 47 L.W. 2112, which also took notice of Canon 5 of the Code (Disciplinary Rule 5 — 101, prohibition against an attorney accepting employment in a case in which the attorney might be called to testify). Finally, an attorney in this dual role may well have a proprietary interest in the litigation in violation of Canon 5 (Disciplinary Rule 5—103).

A more specific question here is whether the law firm, in which the representative plaintiff of the class suit is a member, should be disqualified from acting as class counsel. Based on the reasoning above, we believe it must be disqualified. (Brick v. CPC International, Inc. (2d Cir. 1976), 547 F.2d 185, 186; Zylstra v. Safeway Stores (5th Cir. 1978), 47 L.W. 2112. See Barliant v. Houghton Mifflin Co. (1977), 45 Ill. App. 3d 494.) It just is not enough that the representative state, by affidavit as here or otherwise, he or she will receive no part of the attorney fees awarded. At the very least, an appearance of impropriety remains. Kramer v. Scientific Control Corp. (3d Cir. 1976), 534 F.2d 1085, 1091.

The courts that have decided the issue have taken two approaches. The first approach, taken in Kramer v. Scientific Control Corp. (3d Cir. 1976), 534 F.2d 1085, 1090, has adopted a per se rule: “the attorney-plaintiff class representative may not also serve as counsel for the class.” The second approach, as exemplified by Susman v. Lincoln American Corp. (7th Cir. 1977), 561 F.2d 86, 93-94, rejects the per se rule in favor of a case-by-case method of determining the existence of conflict presented by the dual role issue. The most recent case in the Federal court, Zylstra v. Safeway Stores (5th Cir. 1978), 47 L.W. 2112, has adopted the per se rule of disqualification. We believe the better view is the per se rule, because it unequivocally clarifies a question of class representation by counsel by avoiding any conflict at the very outset of the suit. Since the litigants and counsel also represent absent parties, increasing the protection afforded them is paramount. Section 57.2(a)(3) mandates that. A per se rule would never harm the absent parties but, on the contrary, would automatically allow competent counsel to take over the work of counsel with a conflict, and avoid the possible, if not probable, delays inherent in the “flexible,” case-by-case approach of Susman.

Applying the rule to this case, we find the firm of Yaffe, Mark & Barliant must be disqualified. We must then remand to the circuit court with directions to require the substitution of independent counsel before the action may proceed further. Parenthetically, we do not believe it is sufficient to replace the named representative plaintiff with another class member, while retaining the same counsel, because this would permit an attorney to bring a suit to benefit his or her firm and later replace the representative party while protecting the firm’s financial interest. (We have found nothing in the record to indicate that the attorneys for the plaintiff here acted in any way but in good faith.)

Apropos of section 57.2(a)(3), we see another issue raised based on a contention of the defendant that plaintiff’s year-and-a-half delay, between the time the defendant computerized its billing process and the time the plaintiff gave notice of an alleged breach (Ill. Rev. Stat. 1971, ch. 26, par. 2—607(3)(a)), was unreasonable. First, whether the delay was unreasonable is a question for the trial court. (A consideration is whether the code on the invoice, BKPST TRANS-INS, was so cryptic as to render the delay a reasonable one.) Second, should the plaintiff be found to have engaged in an unreasonable delay before giving notice, this would not necessarily dictate that other members of the class must also fail in the litigation. It would be patently unfair to absent class members if disposition of the merits of their claims were dependent on disposition of peripheral or nonsubstantive aspects of the representative plaintiff’s grievance. In Federal court, a plaintiff, even though his or her right to litigate no longer exists, may nevertheless be permitted to continue representation of the class. In each of the cases cited below, the courts of appeal remanded to the trial court for further proceedings with regard to other class members where the named plaintiff’s grievance was dismissed. (Roberts v. Union Co. (6th Cir. 1973), 487 F.2d 387; Martin v. Thompson Tractor Co. (5th Cir. 1973), 486 F.2d 510; Smith v. Delta Air Lines, Inc. (5th Cir. 1973), 486 F.2d 512; Moss v. Lane Co. (4th Cir. 1973), 471 F.2d 853. See Donaldson v. Pillsbury Co. (8th Cir. 1977), 554 F.2d 825; see also East Texas Motor Freight System, Inc. v. Rodriguez (1977), 431 U.S. 395, 52 L. Ed. 2d 453, 97 S. Ct. 1891.) We agree that where the representative plaintiff is unable or not permitted to continue to litigate, further proceedings pertaining to the other class members are justified; and, in such a situation, that a new class representative should be named to insure the protection of other members. This would assure compliance with section 57.2(a)(3). In the instant case, the circuit court must determine whether the plaintiff’s delay was so unreasonable as to necessitate his dismissal as class representative.

The last requirement of section 57.2 is that the action be “an appropriate method for the fair and efficient adjudication of the controversy.” This prerequisite is met. The common question above is dispositive of the actions of the other members of the class against the defendant, subject to the proofs they must make. In short, “the facts we have considered make manifest that the final requirement of the statute *** is fulfilled.” Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 339.

Given our disposition of the issues above, we find it unnecessary to address the other contentions of the plaintiff. We reverse the judgment of the appellate court, vacate the January 23, 1976, order of Judge Wosik, and remand the cause to the circuit court with directions to require new counsel for the representative plaintiffs and to determine the initial question of whether the delay in giving notice to Follett Publishing Co. was unreasonable. Thereafter, the class action, when these conditions are met, should proceed.

Appellate court reversed; circuit court order vacated; cause remanded, with directions.