author: JUSTICE STOUDER

text:
    OCCIDENTAL FIRE & CASUALTY COMPANY OF NORTH CAROLINA, Plaintiff-Appellee, v. DUANE M. PADGETT et al., Defendants-Appellants.—(People’s Bank of Bloomington, Adm’r of the Estate of Steven R. Hefferin, Deceased, et al., Defendants.)
    Third District
    Nos. 82—204, 82—186 cons.
    Opinion filed March 10, 1983.

      Michael L. Pitzer and Thomas J. Horn, both of Brown, James, Babbitt, Whaley, McMullin & Pitzer, of St. Louis, Missouri, and Robert G. Wuller, Jr., of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellants.
    R. Michael Henderson and James R. Morrison, both of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Occidental Fire and Casualty Company of North Carolina filed a complaint for declaratory judgment against defendants Duane M. Padgett, Ace Doran Hauling and Rigging Company, Guarantee Insurance Company, and others not party to this appeal, seeking a declaration that its insurance coverage did not extend to the situation at bar. After a hearing on the merits, the circuit court of Peoria County entered summary judgment in plaintiff’s favor.

Padgett is an independent trucker who owns his own equipment. On March 4, 1977, he entered into a “permanent lease” with Ace Doran. Contrasted in the industry with a “trip lease,” the arrangement continues at least on a monthly basis until it is terminated. Before the day of the accident from which the coverage question arose, Padgett had picked up a load to Ohio pursuant to his “permanent lease” and was notified by an Ace Doran terminal manager that the company had a load available for him in Galesburg. Padgett proceeded to Indiana, where he picked up a load for National Trailer Convey under a “trip lease,” and continued on to Galesburg.

After arriving at the Ace Doran terminal in Galesburg, Padgett waited from morning until closing for his trailer to be loaded. The terminal manager finally told him it would not be possible to load the trailer that day, and that he should go home. Padgett left his trailer at the terminal to be loaded and proceeded home on Interstate 74. Ace Doran’s name and Interstate Commerce Commission (hereafter ICC) permit number were on his tractor and were not concealed. While traveling through Peoria County, he struck a vehicle, giving rise to the underlying tort action.

The sole issue we need today decide is whether Padgett was “in the business” of Ace Doran. This issue arises from the following language contained in plaintiff’s policy:

“It is agreed that such insurance as it is afforded by the policy *** does not apply:
* * *
(b) while the automobile or any trailer attached thereto is used to carry property in any business;
(c) while the automobile is being used in the business of any person or organization to whom the automobile is rented.”

Three decisions of our supreme court guide our determination.

In Schedler v. Rowley Interstate Transportation Co. (1977), 68 Ill. 2d 7, 368 N.E.2d 1287, the tractor in question was leased to the defendant, a carrier engaged in interstate commerce under a certificate issued by the ICC. The lessor had transported a load for the defendant from Iowa to Connecticut, carried a load for another carrier from Connecticut to Chicago, and driven the tractor and empty trailer to his home in Savanna. The next day he drove to Iowa to drop off the trailer at the defendant’s terminal. On his way home in the tractor, an accident occurred. After discussing other provisions of part II of the Interstate Commerce Act (49 U.S.C. sec. 301 et seq. (1976)), the court concluded:

“The rules also provide for identification of the leased equipment as that of the carrier-lessee (1057.4(d)) and that ‘The authorized carrier operating equipment under this part shall remove any legend, showing it as the operating carrier, displayed on such equipment, and shall remove any removable device showing it as the operating carrier, before relinquishing possession of the equipment’ (1057.4(d)(1)). In American Trucking Association, Inc. v. United States, 344 U.S. 298, 97 L. Ed. 337, 73 S. Ct. 307, in which the rules and regulations were held valid, the Supreme Court reviewed the abuses which the Act and accompanying regulations were designed to prevent, among which was the difficulty of ‘fixing financial responsibility for *** injuries to *** members of the public.’ Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 37, 46 L. Ed. 2d 169, 177, 96 S. Ct. 229, 234.
*** We are of the opinion that it was the purpose of the regulatory scheme that the carrier-lessee be vicariously responsible to the public for the negligent operation of the leased vehicle without regard to whether at the time in question it was being used in the business of the lessee. (See Cosmopolitan Mutual Insurance Co. v. White (D. Del. 1972), 336 F. Supp. 92.) To hold otherwise would permit injecting into each case the issues of agency, scope of employment and purpose of the movement out of which the occurrence arose, thus defeating the declared purpose of the regulations to eliminate the problem of fixing responsibility for damages and injuries to members of the public. Absent proof of compliance with sections 1057.4(d) and 1057.4(d)(1), we hold that if Dixon is liable to plaintiff, defendant must be held vicariously liable.” Schedler v. Rowley Interstate Transportation Co. (1977), 68 Ill. 2d 7, 12-13, 368 N.E.2d 1287, 1289.

In St. Paul Fire & Marine Insurance Co. v. Frankart (1977), 69 Ill. 2d 209, 370 N.E.2d 1058, the tractor in question was leased to Wilson Freight Company, again a carrier engaged in interstate commerce under a certificate issued by the ICC. The lessor-defendant had transported a load for Wilson from Pennsylvania to Oklahoma, drove to Wilson’s Granite City terminal, where he took his name off an availability list, and departed with an empty trailer for his home in Ohio. As the truck was exiting Interstate 74 in East Peoria, an accident occurred. Plaintiff had issued the defendant an insurance policy which excluded coverage using the exact language of provisions (b) and (c) of the policy at bar. The court discussed these provisions:

“In the case at bar, we find that the disputed insurance policy is ambiguous to the limited extent that it does not define ‘in the business of’ to necessarily be the equivalent of the carrier’s liability under ICC regulations. Because the insurance company prepared the policy, such ambiguity will be strictly construed against the insurer. Canadian Radium & Uranium Corp. v. Indemnity Insurance Co. (1952), 411 Ill. 325, 332; Pre-Cast Concrete Products, Inc. v. Home Insurance Co. (7th Cir. 1969), 417 F.2d 1323, 1325.
Absent any reference in the insurance policy to the ICC regulations, the term ‘in the business of’ must be construed according to its recognized common usage in conjunction with the rest of the policy. Wilson contends that Frankart, in applying for ‘bobtail and deadhead’ insurance, insured himself for any accidents occurring while the tractor was being operated without a trailer or while pulling an empty trailer. Section (b) of the policy endorsement excludes coverage whenever the tractor-trailer is hauling loads in any business. If this were the only provision in the endorsement, Frankart would have been covered whenever he was ‘bobtailing’ or ‘deadheading.’ However, section (c) further excludes coverage whenever Frankart’s tractor is being used in the business of any lessee. Section (c) does not purport to exclude coverage only when a load is being hauled for the lessee. Such a reading would render section (c) totally meaningless next to the broader exclusion of section (b). It is a fundamental rule of construction that meaning and effect, if possible, be given to every part of a contract so that one provision is not construed to annul another. (4 Williston, Contracts sec. 618, at 715 (3d ed. 1961); 12 Ill. L. & Prac. Contracts sec. 215 (1955); State Security Insurance Co. v. Goodman (1972), 6 Ill. App. 3d 1008, 1012-13.) Applying this rule of construction, the policy clearly provides that coverage is excluded when Frankart’s trailer is being used in the business of a lessee even if, at the time of the accident, the tractor is pulling an empty trailer.” (St. Paul Fire & Marine Insurance Co. v. Frankart (1977), 69 Ill. 2d 209, 215-16, 370 N.E.2d 1058, 1061.)

Having so decided, the court went on to determine if the defendant was “in the business” of Wilson:

“Wilson’s failure to have another assignment for Frankart at its Illinois terminal did not terminate its ‘exclusive possession, control, responsibility and use’ of Frankart’s tractor-trailer provided under the lease. It is the nature of Wilson’s business that its owner-drivers will be relieved of a load at a point of delivery, and that, unless another load can be picked up on the return trip, the owner-drivers must make their return trip pulling an empty trailer. As Wilson’s vice president conceded, the original assignment does not terminate at the point of delivery. We find that it continues :¿í least until the owner-driver returns to the point where the haul originated (Coatesville, Pennsylvania), to the terminal from which the haul was assigned (Cleveland, Ohio), or to the owner-driver’s home terminal from which he customarily obtained his next assignment (Findlay, Ohio). *** We find, as a matter of law, that during Frankart’s return trip to his home in Ohio, his tractor-trailer continued to be used in Wilson’s business.” (Emphasis added.) St. Paul Fire & Marine Insurance Co. v. Frankart (1977), 69 Ill. 2d 209, 218-19, 370 N.E.2d 1058, 1062.

In the case at bar, Padgett’s home terminal was located in Gales-burg. Under St. Paul, he was “in the business of” Ace Doran at least until he arrived at the terminal. The question becomes whether he retained that status after he left for his home in Indiana. We consider both the specific facts here present and the interplay of the ICC regulatory scheme.

After taking a load to Ohio, Padgett was advised by Ace Doran Terminal Manager Burt Carlson that there was a load available for him in Galesburg. Padgett then picked up a load in Indiana to be transported to Galesburg under a “trip lease” to another carrier. The “trip lease” to Galesburg was with Ace Doran’s permission, and Padgett stated that had Carlson not advised him of the available Ace Doran load there, he would not have “trip leased” to Galesburg. After arriving in that city the morning of July 2, 1980, he waited all day for his trailer to be loaded. At the end of the day, Carlson advised him the trailer wouldn’t be loaded that day and told him he should go home. Padgett did so, leaving his trailer at the Ace Doran terminal to be loaded. A second trailer owned by him was also at the terminal. We thus have a situation where Padgett was returning home pursuant to Ace Doran’s instructions and with the expectation of returning to the Ace Doran terminal to pick up the load.

While not controlling, we are also mindful of the ICC regulatory scheme. As indicated in Schedler, an authorized carrier must remove any legend or removable device showing it as the operating carrier before relinquishing possession of equipment. In Kreider Truck Service, Inc. v. Augustine (1979), 76 Ill. 2d 535, 394 N.E.2d 1179, removable panels were provided to conceal the name of a certified interstate motor carrier. An accident occurred while the panels had not been attached and no sign-off (see 49 C.F.R. sec. 1057.4(b)) was effected. The court concluded:

“Under Schedler, it is not necessary to decide the troublesome agency questions such a ‘employee or independent contractor,’ ‘scope of employment,’ ‘frolic or detour,’ and ‘borrowed employees’ in determining liability. It is necessary only to consider the simple question of whether the lease had been terminated and possession surrendered in the manner provided in the regulations; that is, by the lessee taking a receipt from the owner (sec. 1057.4(b)) and by removing from the vehicle the lessee’s identification showing it to be the operating carrier (sec. 1057.4(d)(1). *** When the lessee takes possession under the lease and places its identification on the equipment as required by section 1057.4(d), the provisions of the ICC regulations place upon the lessee exclusive possession and complete responsibility, which remain until possession is surrendered and the identification legend of the lessee-carrier is removed. The lessee-carrier, by entering into the lease and placing its identification on the vehicle, has vested the owner-lessor with authority to transport commodities in that vehicle in interstate commerce. That authority continues during the duration of the lease, until possession is surrendered and the identification removed. Likewise, the responsibility of the lessee who vested the owner-lessor with this authority must remain until possession is surrendered in the manner provided in the regulations. [Citation.]” (Kreider Truck Service, Inc. v. Augustine (1979), 76 Ill. 2d 535, 540-41, 394 N.E.2d 1179, 1181-82.)

At the time of the accident at bar, Ace Doran’s name and permit number were on Padgett’s tractor.

It is clear that under the ICC regulatory scheme Padgett was “in the business” of Ace Doran; indeed, the carrier has never contested its potential liability. The facts of this case further present a situation where a lessor was directed to return home by a lessee-carrier and intended to return after a holiday without carrying any other loads in the interim. While there may be cases where a certified carrier’s liability and an “in the business” characterization may not be coextensive, the facts at bar indicate such a relationship herein. We therefore hold that Padgett was “in the business” of Ace Doran at the time of the accident, and that the incident thus falls within plaintiff’s policy exclusion.

Defendants have raised several additional issues, the discussion of which is unnecessary to the resolution of this cause. We do note that they have contended the determinative issue should be decided under Indiana law. Given our reliance on Federal law, as well as the place of performance, the location of the subject matter, and the place bearing a relationship to the general contract (see Hofeld v. Nationwide Life Insurance Co. (1975), 59 Ill. 2d 522, 528-29, 322 N.E.2d 454, 458), we find the trial court committed no error in deciding the issue under the law of this State.

Accordingly, the summary judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY, P.J., and SCOTT, J., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT PRESIDING JUSTICE STOUDER,

license: Public Domain

text:
    BOARD OF TRUSTEES OF COMMUNITY DISTRICT NUMBER 513, Plaintiff and Counterdefendant-Appellee, v. DALE KRIZEK et al., Defendants-Appellants.—(Dale Krizek, Counterplaintiff-Appellant.)
    Third District
    No. 82—350
    Opinion filed March 10, 1983.

      STOUDER, P.J., specially concurring.
    J. Dale Berry, of Cornfield and Feldman, of Chicago, for appellants.
    Bruce C. Mackey, of Klein, Thorpe and Jenkins, of Chicago, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This litigation concerns the termination from employment of Dale Krizek, a nontenured community college teacher, by her employer, the Board of Trustees of Community College District No. 513 (the Board). Following a hearing by the circuit court of La Salle County, it was determined that the termination did not breach the employment contract between Krizek and the Board, nor did the termination fail to comply with the statute creating certain rights of tenure for community college teachers. Krizek has appealed, urging that the determinations of the circuit court were erroneous.

We are presented with the following factual background: Krizek began employment with the Board in January 1978 as an art teacher. She was employed continuously from that time until she received her notice of termination dated August 20, 1980, to be effective December 19, 1980. Krizek’s most recent professional contract with the Board was executed on May 16, 1979, and provided for employment during the academic year commencing on August 21, 1979, and ending on May 16, 1980; however, teachers in District 513 were represented by the American Federation of Teachers Local 1810, and terms of a collective bargaining agreement entered into on August 20, 1980, were applicable to employment contracts for the 1980-1981 academic year.

That collective bargaining agreement provided, in pertinent part, that

“It shall be the responsibility of the President and the Dean of Instruction in consultation with the Division Chairman to review annually the status of each teacher who does not have tenure, and make recommendations to the Board regarding dismissal or granting of tenure for each teacher whose status calls for a decision.
Notice shall be given in writing (and transmitted by Certified Mail, Return Receipt Requested) to the teachers and to the Board, of intention not to recommend reappointment. Starting during the 1973-74 academic year, such notices shall be given not later than March 1 of any of the probationary years of service. For the 1972-73 academic year, the tenure provisions of the 1971-72 contract shall prevail. Tenure appointments are initiated by the Division Chairman in consultation with the Dean of Instruction and the President. The President recommends candidates for tenure to the Board, and the Board action is final.
* * *
Teachers presently employed by the College may continue to earn tenure in accordance with this Article, however, all dates and time lines for modification of reduction in force or nonrenewal of contract shall be in accordance with the Community College Tenure Act. This entire Article of the contract will be deleted on January 1,1983.”

Krizek urges that the notice provisions of this collective bargaining agreement were not complied with, and therefore the Board’s action to terminate her employment was ineffectual.

During the course of the 1979-1980 academic year, legislation codifying the tenure rights of community college teachers became effective. On November 11, 1979, the General Assembly enacted the Public Community College Act. This act became effective on January 1, 1980. The Act requires that

“Every Board shall provide by rule or contract for a procedure to evaluate the performance and qualifications of non-tenure faculty members. If the implementation of such procedure results in a decision to dismiss a non-tenure faculty member for the ensuing school year or term, the Board shall give notice thereof to the faculty member not later than 60 days before the end of the school year or term. The specific reasons for the dismissal shall be confidential but shall be issued to the teacher upon request. If the Board fails to give such notice, within the time period, the faculty member shall be deemed reemployed for the ensuing school year. If the Board fails to give such notice within the time provided during the third year, or during the fourth year in the case of a one year extension, the faculty member shall enter upon tenure during the ensuing school year or term.” (111. Rev. Stat. 1981, ch. 122, par. 103B — 3.)

In the alternative, Krizek urges that even if the notice provisions of the collective bargaining agreement are not applicable, then the Board’s action to terminate her was still ineffectual as the evaluation procedures required by the Public Community College Act were not followed.

Subsequent to her termination, Krizek sought to submit to arbitration her grievance against the Board. The Board filed the present action in the circuit court naming Krizek and the American Federation of Teachers, Local 1810, as defendants and seeking a determination by declaratory judgment that the grievance was not subject to arbitration. Krizek filed a countercomplaint for declaratory judgment and for money damages. Both Krizek and the Board sought a judgment on the pleadings, and the Board moved for summary judgment. It was in this posture that the matter was submitted to the circuit court, which made the determinations hereinbefore reported and entered a summary judgment for the Board.

Krizek’s first contention is that the Board failed to give notice of termination prior to March 1, 1980, and therefore the notice given was unavailing. Although the collective bargaining agreement for the 1979-1980 academic year is omitted from the record, the pleadings establish that an identical notice provision existed in the 1979-1980 document, except for the following language which was added in 1980-1981:

“Teachers presently employed by the College may continue to earn tenure in accordance with this Article, however, all dates and time lines for modification of reduction in force or nonrenewal of contract shall be in accordance with the Community College Tenure Act. This entire Article of the contract will be deleted on January 1,1982.”

It is not disputed that the August notice issued by the Board failed to meet the contractual notice requirements, but the Board urges that the statutory notice requirements of paragraph 103B — 3 superceded contrary contract provisions on January 1, 1980.

Clearly, the 1980-1981 agreement contemplates the super-ceding effect of the statutory notice requirements, but no similar transition clause is found in the 1979-1980 agreement. Krizek posits, in reliance on Anderson v. Board of Education (1945), 390 Ill. 412, 61 N.E.2d 562, that to retroactively apply the statute to supercede the collective bargaining agreement would be an impermissible impairment of contract. While the Board differs with this position, we find it unnecessary to decide the issue in light of language found in the professional contract executed by Krizek on May 16, 1979. That contract specifically incorporates present and future laws of the State of Illinois and makes those laws binding on the parties. Nothing prevents the parties to a contract from agreeing to be bound with reference to future laws (People ex rel. Platt v. Wemple (1889), 117 N.Y. 136, 22 N.E. 1046; Neuman v. Supreme Lodge, Knights of Pythias (1915), 110 Miss. 371, 70 So. 241), and we agree with the Board that such is the agreement appearing in the professional contract. It follows then that the rule announced in the Anderson decision is not controlling under these facts, and that the notice requirements of the statute superceded the contract on January 1, 1980. Indeed, the statutory requirements for terminating nontenured teachers completely superceded any contrary or supplementary requirements in the collective bargaining agreement, as the statutory power to terminate cannot be delegated, modified or conditioned by agreement. Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63, 430 N.E.2d 1111.

Krizek’s second contention is that even if the Board’s termination notice was timely given, it failed to comply with the statute in that the evaluation procedures were not performed. Specifically, the evaluation procedure states that

“In case of a decision not to rehire, the Dean of Instruction and Division Chairperson shall consult with the individual in question in advance of the notification dates referred to in the faculty agreement.”

This consultation was admittedly not held. In other respects, it would appear that the evaluation procedures were complied with.

As a result of the evaluations, Krizek’s personnel file contained both favorable and unfavorable evaluations, although predominantly the former rather than the latter. Thus, Krizek contends that her termination could not have been based upon the prevailing tenor of the evaluations. Having reviewed these contentions, we cannot agree that the Board’s termination notice failed to comply with the statute. We reach this conclusion in light of prior decisions of the supreme court, and after considering the fundamental policies underlying the tenure laws.

First, in Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63, 430 N.E.2d 1111, Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470, 343 N.E.2d 473, and Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127, 340 N.E.2d 7, the supreme court has made unmistakably clear that when a governing board is vested with the power to grant tenure, or to not renew, then the governing board cannot delegate, modify or condition its final authority to make such decisions. Although the statute here in question differs slightly from the one at issue in the prior cases, there is no variation from the essential factor relied on in those cases, i.e., the governing board’s ultimate authority on tenure questions. There can be no dilution of the board’s authority whether the evaluation of teachers is mandated by contract or by statute. It follows then that the power to grant tenure cannot be conditioned upon the decision of an administrator to make a recommendation or hold a consultation, nor can the power be limited by the preponderance of opinion of evaluators, even though their evaluations may be conducted at the behest of the board. So long as a procedure for evaluation has been implemented, and the results of those evaluations are available to the board, we believe that compliance with the statute has been achieved, and any subsequent decisions to terminate ordered by the board are statutorily sound.

We are mindful that the tenure laws represent an elaborate balance between the need to maintain the quality of schools and the opposing interest in job security. (Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63, 77-78 (Simon, J., dissenting).) In striking that balance, the legislature has crafted a system where there appears to be unlimited power in boards to dismiss probationary teachers at the board’s discretion while the power to dismiss tenured teachers is considerably restricted. (Lockport Area Special Education Cooperative v. Lockport Area Special Education Cooperative Association (1975), 33 Ill. App. 3d 789, 338 N.E.2d 463.) We perceive Krizek’s position as an attempt to erode the area of the board’s discretion by injecting elements of cause into the board’s decision to terminate. Inasmuch as this is repugnant to the policy embodied in the statute, we decline to adopt the statutory construction proffered by Krizek.

Finally, in her brief Krizek raises a constitutional issue concerning infringement of her right to due process. Although the Board seeks to have those portions of the brief stricken as representing theories not pursued in the court below, we hereby deny the motion to strike, but dismiss the substantive issue raised by Krizek as without merit, relying on the authority of Board of Trustees v. Cook County College Teachers Union, Local 1600, which presented the same question for review in a factually indistinguishable setting.

We conclude, then, that the decision of the circuit court of La Salle County was correct, and its judgment should be affirmed for the reasons we have set forth.

Affirmed.

ALLOY, J., concurs.

PRESIDING JUSTICE STOUDER,

specially concurring:

I concur in the opinion of my colleagues although I feel constrained to note that the interpretation and application of the statutory scheme of termination of nontenured teachers may not have been that intended by the legislature.

The statute which is applied in this case interjects a new concept which may or may not have been intended by the legislature. Formerly periods of employment were usually delineated to end with the school year, and notices or acts required to be done at special times were so described in terms of the end of the school year or at particular calendar dates during the year. The present statute describes the periods with reference to the school year or the end of the term both as applied to termination and tenure. We have here applied the rule regarding termination to apply at the end of a term in the middle of the school year even though all of the facts which would have apparently been necessary to determine whether the teacher should be retained were known or should have been known prior to the end of the previous school year. By this application the teacher is notified of her termination even before the term commences, a consequence which I am not sure was. intended by the legislature. Consistent with this interpretation it also now appears that a teacher employed in the middle of a school year may obtain tenure in the middle of the school year since the necessary 3- or 4-year period of time need not expire at the end of a school year but may expire at the end of a term. However, I do agree with the majority’s application of the statute and assume it was what the legislature intended from the language employed.


author: PRESIDING JUSTICE STOUDER

text:
    SUPER LIQUORS, INC., Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellees.
    Third District
    No. 82—387
    Opinion filed March 10, 1983.
    Steven H. Vogel, of Peoria, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Imelda R. Terrazino, Assistant Attorney General, of counsel), for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The circuit court of Peoria County granted defendants’, the Illinois Liquor Control Commission et al., motion to strike resulting in the dismissal of the plaintiff’s, Super Liquors, Inc., complaint, which sought declaratory and injunctive relief in connection with the credit restrictions on the sale of beer set forth in section 4 of article VI of the Liquor Control Act (111. Rev. Stat. 1981, ch. 43, par. 122), by reason of alleged violations of due process, equal protection and the antitrust laws.

Section 4 of article VI of the Liquor Control Act (111. Rev. Stat. 1981, ch. 43, par. 122) provides, in pertinent part, that it is unlawful for (1) a manufacturer or distributor of an alcoholic liquor other than beer to extend credit to a retailer other than merchandising credit in the ordinary course of business for a period not in excess of 30 days, (2) a manufacturer or distributor of beer to extend credit to a retailer or, (3) a manufacturer of beer to extend credit to a distributor other than for a period not in excess of 15 days.

The plaintiff, retailer of alcoholic liquor including beer, brought a declaratory judgment action in order to determine whether section 4 of article VI of the Liquor Control Act was violative of the equal protection and due process clauses of the constitutions of the State of Illinois and the United States as well as section 1 of the Sherman Antitrust Act (15 U.S.C. sec. 1 (1976)). The complaint further sought an order enjoining the defendants from enforcing this statute on the basis of its invalidity.

More specifically, the plaintiff alleged that the statute discriminates against retail licensees of beer requiring them to buy beer for cash while permitting retail licensees of alcohol, spirits and wine to purchase such beverages on 30 days credit, that it discriminates against retail licensees of beer by requiring them to purchase beer for cash while permitting distributors of beer to purchase same on credit, that it is violative of due process in that it interferes with the plaintiff’s right to freely contract for credit terms in the purchase of beer and that it fixes the amount of credit available to a retailer of beer, thereby eliminating competition among distributors and manufacturers of beer resulting in a per se violation of section 1 of the Sherman Antitrust Act (15 U.S.C. sec. 1 (1976)).

In response, the defendants moved to strike the complaint. As to the allegations of unconstitutionality, the defendants asserted that the matter had been previously determined in favor of the enactment in Weisberg v. Taylor (1951), 409 Ill. 384, 100 N.E.2d 748, and as to allegations of an antitrust violation, the defendants asserted the defense of State action immunity as established in Parker v. Brown (1943), 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307. The motion to strike was granted and the cause was dismissed.

The plaintiff filed a motion to vacate the judgment asserting that the dismissal of the complaint as a matter of law deprived the plaintiff of an opportunity to present evidence which, if believed, would establish a right to prevail in the action. The plaintiff argued that, as to the constitutional issues, there had been sufficient factual charges since the Weisberg case mandating results different from that rendered in Weisberg. As to the antitrust immunity claim, the plaintiff alleged that section 4 of article VI of the Liquor Control Act did not provide for active supervision of the substantive aspects of that statute and, thus, the defendants were not entitled to antitrust immunity. The motion to vacate was denied.

The issues presented for review are (1) whether the constitutionality of section 4 of article VI of the Liquor Control Act (111. Rev. Stat. 1981, ch. 43, par. 122) was a proper subject for a motion to strike in view of the fact that the plaintiff was precluded from presenting evidence as to the inapplicability of Weisberg v. Taylor (1951), 409 Ill. 384, 100 N.E.2d 748 and (2) whether the granting of a motion to strike with reference to the claimed antitrust violation was error in that the plaintiff was precluded from presenting evidence to show that section 4 of article VI of the Liquor Control Act (111. Rev. Stat. 1981, ch. 43, par. 122) failed to fall within the State action immunity doctrine.

The Illinois Supreme Court in Weisberg v. Taylor (1951), 409 Ill. 384, 100 N.E.2d 748, has decided the constitutionality of section 4 of article VI of the Liquor Control Act. In Weisberg, a retail liquor dealer and a wholesale beer distributor filed suit against the Illinois Liquor Control Commission seeking a declaratory judgment that section 4 of article VI of the Liquor Control Act (Ill. Rev. Stat. 1949, ch. 43, par. 122) was unconstitutional. A motion to dismiss the suit filed by the Attorney General on behalf of the Liquor Control Commission was allowed.

The plaintiff in Weisberg contended, among other things, that section 4 of article VI of the Liquor Control Act was violative of the fourteenth amendment to the Constitution of the United States for the reason that its provisions were arbitrary, unreasonable, confiscatory and did not involve or bear any relationship to the health, safety or welfare of the people; that it was an improper exercise of police power; that it created an arbitrary and discriminatory classification and that it discriminated against retail licensees in requiring them to buy beer for cash while permitting distributors to purchase the same on credit.

The supreme court, in upholding the trial court’s dismissal, stated that the statute’s credit restrictions were apparently designed by the State legislature to control temperance and, therefore, were conductive to the public welfare, even though the court doubted the statute would accomplish its intended result. In addition the court found the classifications created by the statute were reasonable and not discriminatory, relating the historical evils of “tied houses” to localized breweries more so than to nationwide distilleries and finding that the application of the statute fell equally upon all members of distinct and separate classes, that of retailers and that of distributors.

Where the supreme court has declared the law on any point, it alone can overrule or modify its previous opinion, the lower judicial tribunal being bound to follow such decision in similar cases. (Agriculture Transportation Association v. Carpentier (1953), 2 Ill. 2d 19, 116 N.E.2d 863.) In the case at hand we believe that the issue of constitutionality decided by the trial court in allowing the defendants’ motion to strike are identical to those decided in the Weisberg case. We are therefore bound to follow the Weisberg decision and uphold the trial court’s allowance of the defendants’ motion to strike and subsequent dismissal of this case.

The fact that the plaintiff was not allowed to present evidence of changed circumstances underlying the Weisberg decision does not preclude our affirmance of the trial court. Section 45 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 45) provides that a pleading may be stricken if it is substantially insufficient in law, and after a ruling on a motion to strike the court may enter appropriate orders to permit an amendment or terminate the litigation in whole or in part. The motion to strike in this case attacked the complaint’s sufficiency as a matter of law based upon the previous decision of the supreme court in the Weisberg case, which dealt with the identical constitutional issues raised by the plaintiff. If the supreme court wishes to reanalyze the underlying reasoning of the Weisberg decision, it is obviously their prerogative to do so; otherwise, its decision is persuasive and controlling.

As for the trial court’s dismissal of the plaintiff’s antitrust claim, we find no error in this respect. Again, the fact that the plaintiff was precluded from presenting evidence establishing that the defendants were not entitled to immunity under the State action doctrine first enunciated in Parker v. Brown (1943), 317 U.S. 341, 87 L. Ed. 316, 63 S. Ct. 307, does not prevent us from affirming the trial court’s order striking the antitrust claim. The complaint failed to set forth a cause of action under section 1 of the Sherman Act (15 U.S.C. sec. 1 (1976)), in that no assertions were made to indicate the State was entitled to immunity in the enactment of section 4 of article VI of the Liquor Control Act under the rationale of California Retail Liquor Dealers Association v. Midcal Aluminum, Inc. (1980), 445 U.S. 97, 63 L. Ed. 2d 233, 100 S. Ct. 937, and Parker v. Brown (1943), 317 U.S. 341, 87 L. Ed. 316, 63 S. Ct. 307. In addition, the plaintiff never attempted to amend its complaint in order to cure this pleading defect. On the face of the statute in question, State action immunity exists unless averred otherwise by the plaintiff. Therefore, the complaint was substantially insufficient in law as to the antitrust claim and was subject to a motion to strike and subsequent dismissal under section 45 of the Civil Practice Act (HI. Rev. Stat. 1981, ch. 110, par. 45).

We conclude for the foregoing reasons that the order of the trial court striking the complaint and dismissing the action be affirmed.

Affirmed.

BARRY and HEIPLE, JJ., concur.


author: JUSTICE MILLS

text:
    TRESEA PERSCHALL, Plaintiff-Appellee, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—82—0411
    Opinion filed March 7, 1983.

      William S. Bach, of Bach & Laudeman, Ltd., of Bloomington, for appellant.

      James Walker, Ltd., of Bloomington, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Disability insurance claim.

“Vexatious” delay in benefits?

The trial court so held.

We affirm.

Tresea Perschall brought this action for insurance benefits under a group disability policy issued by Metropolitan Life. In addition to the claim for disability benefits, she sought punitive damages for defendant’s alleged “vexatious and unreasonable” delay in meeting its obligations under the policy. Following a jury trial, the trial court entered judgment on the verdict against the defendant for $9,369.21 in actual damages, allowed attorney’s fees and ordered punitive damages equal to 25% of the verdict.

The crucial facts are not in dispute. Plaintiff was covered by a group long-term disability insurance policy issued by the defendant. Benefits were payable under this policy during an insured’s “total disability.” By the terms of the policy, an insured is deemed totally disabled during his first 12 months of absence if he is “unable, because of illness or injury, to perform any and every duty of his occupation.” For absence beyond the first 12 months, however, an insured is entitled to disability benefits if he is, “because of illness or injury, unable to engage in any gainful occupation for which he is reasonably fitted by education, training or experience and is under the care of a physician, if necessary, for any treatment of his disability.”

Plaintiff was employed in light assembly at General Electric Company at the onset of her disability. Beginning June 21, 1977, she absented herself from her job for an extended period due to pain and swelling in her right hand and wrist. It is undisputed that plaintiff received disability benefits under the group policy for 12 months following her departure from work, i.e., from June 21, 1977, until June 21, 1978. After that period, however, the defendant repeatedly denied plaintiff’s request for benefits.

The evidence showed that Dr. Seymour Goldberg served as plaintiff’s family physician from 1966 until some time in 1978. The doctor testified that he treated plaintiff for the wrist condition on June 24, 1977, and told her then to stay off work. He saw her periodically until her final office visit on October 17, 1978. According to Dr. Goldberg, the prescription for plaintiff’s medication would have supplied her until the end of 1978. He stated that she could have refilled the prescription beyond that date without his personal knowledge.

In a letter to plaintiff’s employer, dated July 5, 1978, Dr. Goldberg indicated that plaintiff would never be capable of gainful employment again. In a second letter, dated October 2, 1978, he again expressed that opinion and diagnosed plaintiff’s illness as rheumatoid arthritis. At trial, the doctor recanted this opinion and diagnosis, stating that the diagnosis was never proved and that plaintiff would be capable of sedentary employment.

On January 23, 1980, plaintiff first saw Dr. Chaiyakiati Napombejara, a specialist in rheumatology. On that date the doctor observed tenderness and inflammation in plaintiff’s hands, wrists and feet. Based in part on Dr. Goldberg’s records of plaintiff’s past condition, Dr. Napombejara diagnosed plaintiff’s illness as rheumatoid arthritis. He continued to see plaintiff on a regular basis and prescribed new medication to treat her condition. Within six months, the pain and stiffness in plaintiff’s joints had improved substantially, and the doctor released her to return to work on June 18,1980.

I. On appeal, defendant contends that the trial court erred in refusing to grant a motion for directed verdict made at the end of the plaintiff’s evidence, because plaintiff did not establish that she was under the care of a physician after June 21, 1978, and as such, the proof of her total disability was insufficient. We find that this issue has not been properly preserved for appeal. The denial of the motion for directed verdict is waived, first, because defendant proceeded to produce evidence of its own following the denial of the motion. (Lynn v. Lynn (1960), 21 Ill. 2d 131, 133, 171 N.E.2d 53, 55; see People ex rel. Kubala v. Woods (1972), 52 Ill. 2d 48, 54, 284 N.E.2d 286, 290.) Secondly, defendant failed to avail itself of the opportunity to reassert the motion at the end of all the evidence. See Crum v. Krol (1981), 99 Ill. App. 3d 651, 658, 425 N.E.2d 1081, 1086; Goldberg v. Capitol Freight Lines, Ltd. (1942), 314 Ill. App. 347, 352, 41 N.E.2d 302, 305.

Even if this issue were properly before this court, reversal would not be required. Plaintiff testified that she could not recall the exact date of her last office visit with Dr. Goldberg, but she indicated that it could have been as late as October 17, 1978. In this court, defendant concedes that plaintiff saw Dr. Goldberg on that date. Plaintiff also testified that she continued using the prescription medicine given to her by Dr. Goldberg into 1979. She followed the doctor’s directions to stay off work until early 1980. This evidence would establish prima facie proof that plaintiff was under the care of a physician after June 21, 1978.

Defendant disputes that plaintiff’s use of prescription medicine without more does not constitute “care of a physician” within the meaning of the policy. As we have indicated, however, the evidence did show more. Further, any ambiguity in the policy language would be construed in favor of the insured. Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 423, 401 N.E.2d 539, 541; Kirk v. Financial Security Life Insurance Co. (1978), 75 Ill. 2d 367, 371, 389 N.E.2d 144, 145.

II. As additional grounds for reversal, defendant contends that plaintiff’s medical expert should not have been permitted to give his opinion on plaintiff’s ability to perform gainful employment. Several theories are advanced in support. First, defendant argues that the opinion should not have been admitted, because it concerned an ultimate issue which was not beyond the comprehension of the jury. We are not persuaded that this is an accurate statement of the applicable rule. Although the opinion in Arnold N. May Builders, Inc. v. Bruketta (1978), 60 Ill. App. 3d 926, 377 N.E.2d 579, suggested that testimony on ultimate issues is admissible only upon subjects beyond the understanding of the average juror, that analysis was based upon what is now outdated law. It is now well established that an expert may directly express his opinion on an ultimate issue. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 122, 273 N.E.2d 809, 811.) More recently, this court noted in Binge v. J. J. Borders Construction Co. (1981), 95 Ill. App. 3d 238, 419 N.E.2d 1237, that the modern standard for the admissibility of expert testimony is not whether the subject is beyond the understanding of the jury, but whether the testimony will aid the jury’s understanding. No higher standard applies to opinion testimony on an ultimate issue. E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 704.1, at 375-76 (3d ed. 1979); 2 Jones, Evidence sec. 418, at 789 (5th ed. 1958).

Second, defendant argues that the doctor’s opinion of plaintiff’s disability should not have been admitted, because it constituted a legal conclusion. This contention is also without merit. The doctor was asked whether plaintiff was “totally disabled,” the latter term defined as “the inability due to illness or injury to perform any gainful occupation for which [plaintiff had education, training and experience.” Although this was the definition of total disability stated in the insurance policy, the incorporation of that definition in the question posed to the doctor did not transform his response into a legal opinion.

Third, while acknowledging that an expert may base his opinion on facts not admitted nor admissible in evidence (see Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322), defendant argues that the opinion given by plaintiff’s expert lacked a factual basis. The evidence shows that Dr. Goldberg last saw plaintiff on October 17, 1978, and that plaintiff’s medical expert, Dr. Napombejara, first saw plaintiff on January 23, 1980. The question related to plaintiff’s condition during the interim. Although the expert had no direct information on that period, he stated that he relied upon Dr. Goldberg’s records and his own personal observations. Dr. Goldberg’s records supplied him with information relating to the nature of plaintiff’s disease and her condition immediately preceding the period in question. His personal observations informed him of plaintiff’s condition immediately subsequent to that period. These facts provided a suitable foundation for the doctor’s professional assessment of plaintiff’s disability during the period she was not seen by a physician.

Fourth, defendant challenges the admission of the expert’s opinion on the grounds that the doctor lacked sufficient qualifications to give an opinion on plaintiff’s employment potential. Dr. Napombejara’s medical qualifications were never challenged and it was established that he specialized in rheumatology. The record shows that the doctor made professional determinations of plaintiff’s ability to work during the course of her treatment. The question, which sought the doctor’s opinion whether plaintiff was capable of any gainful occupation, went to plaintiff’s physical abilities rather than specific vocational requirements. The trial court did not err in allowing the doctor to answer the question on the basis of his medical qualifications.

III. Defendant also specifically challenges the imposition of punitive damages. Both the complaint and amended complaint in this case sought attorney fees and punitive damages under section 155 of the Illinois Insurance Code (111. Rev. Stat. 1981, ch. 73, par. 767). Upon entering judgment on the verdict, the trial court made no findings under the statute. Subsequently, plaintiff moved the court to find defendant’s delay “vexatious and unreasonable” and to grant relief under section 155. The trial court conducted a hearing on the motion and offered the parties an opportunity to present evidence. Neither party presented additional evidence, and the trial court expressly decided the question on the basis of the evidence introduced at trial and the arguments on the motion. The court found that defendant’s delay in paying benefits was unreasonable and vexatious. Pursuant to section 155, the court allowed attorney fees and punitive damages equal to 25% of the verdict.

Defendant asserts, without citation of authority, that the question presented under section 155 should have been submitted to the jury. The language of the statute itself and the case law clearly contradict this assertion. (See Stewart v. Guarantee Trust Life Insurance Co. (1944), 321 Ill. App. 588, 53 N.E.2d 476.) The trial court did not err in failing to submit the question to the jury.

Defendant further asserts that there was not sufficient evidence to support the court’s finding of unreasonable and vexatious delay. Black’s Law Dictionary 1403 (5th ed. 1979), defines vexatious as “[wjithout reasonable or probable cause or excuse.” Although we agree that the question is a close one, we find no justification for reversal. The applicable standard of review would permit reversal only if we find that the trial court abused its discretion. (Deverman v. Country Mutual Insurance Co. (1977), 56 Ill. App. 3d 122, 371 N.E.2d 1147; Songer v. State Farm Fire & Casualty Co. (1980), 91 Ill. App. 3d 248, 414 N.E.2d 768.) There is sufficient support for the trial court’s determination of “vexatious and unreasonable” delay to preclude a finding of abuse on review.

Plaintiff testified, and defendant admitted in its answer, that plaintiff received benefits under the policy for 12 months, i.e., from June 21, 1977, to June 21, 1978. Defendant also formally admitted that it ceased payments to plaintiff on June 21, 1978, and refused her subsequent requests for benefits under the policy. There is no evidence as to whether defendant explained the basis for this refusal of benefits. The policy, which was admitted in evidence, requires an insured to apply for benefits only once, although the criteria for payment of benefits changes after the first 12 months of disability. By terms of the policy, the defendant reserved the right to medically examine the insured and to require proof of continued disability, but there is no evidence that such information was sought by defendant.

Defendant terminated benefits on June 21, 1978. Yet, the testimony of plaintiff and Dr. Napombejara showed clearly that plaintiff’s condition did not show signs of improvement until 1980. Her condition immediately before and after defendant’s termination of benefits was identical. Also, the testimony of plaintiff and Dr. Goldberg showed that she remained under the care and treatment of Dr. Goldberg at least until October 17, 1978. This latter fact was conceded by defense counsel at trial in closing argument. It is evident that defendant did not terminate benefits on June 21, 1978, because it believed that plaintiff had been cured or had removed herself from the care of her physician. Moreover, in letters dated July 5, 1978, and October 2, 1978, Dr. Goldberg informed plaintiff’s employer that plaintiff was incapable of gainful employment.

The foregoing evidence presented an adequate factual basis for the trial court’s award of attorney fees and punitive damages under section 155. It should be noted that defendant was afforded the opportunity to present evidence on the question but the opportunity was declined. Defendant objected orally when the motion was presented but offered no support for its position other than argument. Although this court might have reached a different conclusion on the basis of the evidence presented, that is not the standard by which we review the alleged error. The trial court could legitimately have concluded that plaintiff supported her burden of proof on this issue.

The record reveals no abuse of discretion in this matter nor any other. Accordingly, we affirm.

Affirmed.

GREEN and MILLER, JJ., concur.


author: PRESIDING JUSTICE DOWNING

text:
    JOSEPH T. TISONCIK, Plaintiff-Appellee, v. LESLIE SZCZEPANKIEWICZ, Indiv. and d/b/a B & L Cartage et al., Defendants-Appellees.—(Ronald Biesboer, Indiv. and d/b/a Brites Cartage, Defendant-Appellant; Gallagher Asphalt Corp. et al., Defendants.)
    First District (2nd Division)
    No. 81—2207
    Opinion filed March 15, 1983.

      Jerome H. Torshen, Ltd., and Osterkamp, Jackson & Hollywood, both of Chicago (Jerome H. Torshen and Janet F. Gerske, of counsel), for appellant.
    Beverly, Pause, Duffy & O’Malley, of Chicago (John J. O’Malley and Michael W. Rathsack, of counsel), for appellees Leslie Szczepankiewicz and Joseph J. Murdie.
    Marshall E. LeSueur, of Chicago, for appellee Joseph T. Tisoncik.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff, Joseph T. Tisoncik, brought this personal injury action against the owner-lessor, lessee and driver of a truck which collided with plaintiff’s car. At the close of the evidence, the owner-lessor was granted a directed verdict in its favor and the driver was dismissed at plaintiff s request. The jury awarded plaintiff $156,652 against the lessee, Ronald Biesboer d/b/a Brites Cartage (Brites), the sole remaining defendant. Brites appeals from the jury verdict against it and from the dismissal of the codefendants lessor and the driver of the truck.

Brites raises the following issues on appeal: (1) whether the trial court erred in excluding evidence concerning plaintiff’s prior injuries and his ability to practice dentistry after the accident; (2) whether the trial court erred in directing the verdict in favor of the owner-lessor; and (3) whether the trial court erred in allowing the driver to be dismissed at plaintiff’s request.

Plaintiff, a 59-year-old dentist, was injured on June 15, 1979, when the car he was driving was hit by a vehicle. Defendant Leslie Szczepankiewicz, doing business as B & L Cartage (B & L), as owner, had leased the tractor and trailer involved in the accident for a three-year period to Brites. The vehicles were leased under an Illinois Commerce Commission (ICC) “Equipment Lease,” which provided that the equipment “shall be under the exclusive and complete possession, use, and control of [Ijessee.” According to Interstate Commerce Commission requirements, the truck carried Brites’ name and ICC number. B & L garaged and maintained the vehicles and provided the driver, Joseph Murdie. Murdie admitted at trial that on the day of the accident, he did not see the traffic signals at the intersection until he was about 25 feet from them. His truck hit plaintiff’s car, causing plaintiff injuries for which he sought damages for pain and suffering, medical expenses and lost wages.

At the close of all the trial evidence, defendant B & L moved for a directed verdict which the trial court granted and dismissed B & L from the action. The driver, Murdie, was dismissed with prejudice upon plaintiff’s request. The jury was given the instruction that Murdie was Brites’ agent at the time of the occurrence and returned a $156,652 verdict for plaintiff.

I

Brites contends that the jury awarded plaintiff an excessive verdict as a result of the trial court improperly excluding: (a) evidence concerning a knee tap performed on plaintiff in 1969; and (b) photocopies of plaintiff’s daily appointment books for 1979 and 1980.

A

A sizeable portion of plaintiff’s medical expenses and time lost from his dental practice was attributable to the surgery and subsequeixt therapy of his right knee. Testimony at trial revealed that plaintiff had two problems with his right knee — a degenerative process that, involved a softening of the tissue, and a torn meniscus. In 1969, 10 years prior to the accident, plaintiff banged his right knee on a chair and a knee tap was performed on him. by a physician (a Dr. Keagy) who did not testify at trial. In 1971, plaintiff received injections in his right knee from the same physician. The trial court struck the evidence regarding the 1969 knee tap,, but allowed evidence of the 1971 treatment.

Brites argues, therefore, that the prior condition of plaintiff’s right knee was placed into issue. Evidence of a prior injury is admissible if a causal relationship between the injury is shown or when it involves the same area of the body. Elberts v. Nussbaum Trucking, Inc. (1981), 97 Ill. App. 3d 381, 384, 422 N.E.2d 1040.

Brites contends that it was error to exclude evidence of the knee tap because it prevented the jury from considering whether plaintiff’s complaint was an aggravation of a preexisting condition. Plaintiff’s treating surgeon testified extensively regarding the existence of the degenerative condition and admitted he had no way of knowing how long plaintiff had it or the torn meniscus prior to the 1980 surgery.

A review of the record reveals that striking of the evidence in question did not result in prejudice to defendant’s theory of aggravation of a preexisting condition as it claims it did. The incident took place approximately 10 years before the current incident. There is no evidence in the record as to the nature, extent, duration or treatment of the 1969 incident, other than there was a single injection. Brites presented no offer of proof nor attempted to provide more explicit evidence.

B

Brites also claims that the trial court erroneously declined to admit defendant’s exhibits Nos. 7 and 8, which were certified photocopies of plaintiff’s daily appointment books for 1979 and daily logs for 1980. The justification advanced by Brites at trial for admitting the exhibits was that they impeached plaintiff’s testimony regarding extractions that he performed after the accident. Brites was able to cross-examine plaintiff from the information contained in the exhibits, thus the jury was informed as to the nature of Brites’ theory. Although the trial court did not allow the exhibits to go to the jury, any error in so ruling, in our opinion, was not prejudicial. A careful review of the record reveals that the trial court correctly refused to admit the records to the jury since they did not actually contain facts which constituted impeaching evidence.

II

Brites contends that the trial court erred in granting B & L’s motion for a directed verdict and in allowing Murdie to be dismissed with prejudice at plaintiff’s request.

The initial issue that must be resolved is whether Brites has standing to appeal the dismissal of its codefendants B & L and Murdie. The general rule in Illinois is that the only party who may appeal from a directed verdict in favor of a codefendant is the plaintiff. (Montgomery v. Terminal R.R. Association (1979), 73 Ill. App. 3d 650, 655, 392 N.E.2d 77.) The right to appeal exists only in favor of a party whose rights have been prejudiced by the judgment or decree appealed from. Gordon v. Gordon (1955), 6 Ill. 2d 572, 574, 129 N.E.2d 706; Hotchkiss v. City of Calumet City (1941), 377 Ill. 615, 617, 37 N.E.2d 332.

Brites argues that the potential res judicata effect of B & L’s dismissal on a possible contribution action by Brites against B & L gives it standing to appeal. Brites relies on Chas. Ind Co. v. Cecil B. Wood, Inc. (1965), 56 Ill. App. 2d 30, 205 N.E.2d 786, where the court recognized that the appellant had a right to appeal from a judgment in favor of a codefendant because he would be injured in a claim for indemnity by the said judgment. (56 Ill. App. 2d 30, 44.) The court’s acknowledgment of this standing to appeal was predicated, however, upon an express finding that the appellant had actively sought to determine the liability of its codefendant in the original action and that the jury verdict of finding the codefendant not guilty of negligence would act as a bar to the present action for indemnity. (56 Ill. App. 2d 30, 39.) In the instant case, B & L was dismissed by the trial court based upon its status as lessor under a common carrier lease. As between codefendants, a judgment for or against one of them does nothing but establish their respective rights and liabilities toward the plaintiff, unless the issues between the codefendants were actively litigated in the action. (City of Burbank v. Glazer (1979), 76 Ill. App. 3d 294, 298-99, 395 N.E.2d 97.) The issues relevant to contribution action were not resolved in the instant case, and thus Brites cannot claim that its interest was prejudiced by B & L’s dismissal. We do not base our decision upon these grounds, however, but rather upon our interpretation of the enforcement section of “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1981, ch. 70, par. 305).

The right of one tortfeasor to recover contribution from other joint tortfeasors was first recognized by our Illinois Supreme Court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437. The legislature responded to this decision and enacted “An Act in relation to contribution among joint tortfeasors” (Act), which was effective September 14, 1979, and covered causes of action arising on or after March 1, 1978. (Ill. Rev. Stat. 1981, ch. 70, par. 301.) The Skinner court recognized the injustice of the former no-contribution rule which “ '*** permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone ***.’” Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 13, quoting Prosser, Torts sec. 50, at 307 (4th ed. 1971).

Section 5 of the Act is the enforcement section and provides:

“A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” (111. Rev. Stat. 1981, ch. 70, par. 305.)

We have found no Illinois case to date which interprets the meaning of this section. In construing a statute provision not yet judicially interpreted, a court is guided by both the plain meaning of the language in the statute as well as legislative intent. (Janowski v. Teamsters Local No. 710 Pension Fund (7th Cir. 1982), 673 F.2d 931, 936-37.) The statutory language is the best indication of the intent of the drafters. People v. Robinson (1982), 89 Ill. 2d 469, 475, 433 N.E.2d 674.

We interpret the language of the enforcement provision which provides that a contribution claim may be asserted “by a separate action before or after payment” as covering situations where no suit is pending which was initiated by the injured party; however, when there is a pending action, the contribution claim should be asserted “by counterclaim or by third-party claim” in that action. Here, Brites failed to raise its action for contribution by counterclaim in the pending action and is now contending that its rights, not asserted below by counterclaim or third-party complaint, have been prejudiced by the trial court’s dismissal of its codefendant B & L.

Brites contends that the language in the statute section allowing a party to assert a contribution claim “by a separate action before or after payment” permits codefendants to present a united front against the plaintiff during trial, and to later litigate the contribution question when their position in regards to the plaintiff will not be damaged thereby. We have found support for this contention in that the committee notes compiled by the Chicago Bar Association’s Civil Practice Committee states, in regards to the draft of Senate Bill 308, that “[t]his section is a restatement of present Illinois law, giving a defendant the right to assume the position that he is not liable at all and to elect not to cross claim lest he create the impression he is liable.” Legislative History, compiled by Chicago Bar Association Civil Practice Committee, at 4.

However, the problems which arise when a defendant does not assert a contribution claim in the underlying action are widely recognized. (See generally Annot., 24 A.L.R.3d 318 (1969); Comment, Contribution in Missouri — Procedure and Defenses Under the New Rule, 44 Mo. L. Rev. 691, 703-06 (1979).) As one commentator noted, it would be generally preferable to bring the contribution suit as part of the basic suit so that one jury could resolve the liability in the primary suit as well as the percentages of liability of each defendant. Horan, Contribution in Illinois: Skinner v. Reed-Prentice and Senate Bill 308, 61 Chi. Bar Rec. 331, 340 (1980).

Some States have dealt with this situation by enacting statutory provisions which force a defendant to make use of counterclaims or third-party complaints in order to protect its contribution rights. (E.g., Ark. Stat. Ann. sec. 34 — 1007(3) (1962); Del. Code Ann., tit. 10, sec. 6306(b) (1975); Haw. Rev. Stat. sec. 663 — 17 (1968).) The New York statute which allows for a contribution claim to be asserted “in a separate action or by cross-claim, counterclaim or third-party claim in a pending action” has been interpreted as allowing for a separate action; however, the New York courts have emphasized that asserting a claim in a separate action “ ‘adds to the burden of already crowded courts, creates the possibility of inconsistent verdicts in the two actions and makes more difficult the assessment of equitable shares in multiparty situations in which one of three or more wrongdoers is not joined in the initial action.’ ” Meckley v. Hertz Corp. (1976), 88 Misc. 2d 605, 388 N.Y.S.2d 555, 557, quoting from Twentieth Annual Report of the Judicial Conference, notes at 221 (1975).

The possibility of increased litigation was a concern of the legislators during, their debates on passage of our contribution statute. (1979 House Floor Debate on S.B. 308, 17 — 23.) We think the language and punctuation used in section 5 clearly indicate the legislative intent that where there is a pending action, the cause of action for contribution among joint tortfeasors is to be asserted by a counterclaim or third-party complaint in the pending action. As the Chas. Ind Co. court commented (decided before the adoption of the Act), by using the procedural vehicles of either the counterclaim or third-party complaint, “the entire controversy may be determined in one proceeding with its attendant savings in court time, attorney’s fees and legal costs.” (Chas. Ind Co. v. Cedi B. Wood, Inc. (1965), 56 Ill. App. 2d 30, 47, 205 N.E.2d 786.) We are mindful of the third-party proceedings provision of our Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 406), and the counterclaims provision (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 608), but conclude that nothing in those sections contravenes our holding.

Because Brites did not assert a counterclaim for contribution in the pending action below, as provided for in the statute, we hold that it does not have standing to appeal the dismissal of its codefendants.

For the reasons stated above, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

STAMOS and PERLIN, JJ., concur.

       On December 7, 1982, we entered an order disposing of the appeal under Supreme Court Rule 28. Defendant-appellant Brites filed a petition for rehearing. An answer by the other parties to said petition was received as was a reply. We have this date entered an order allowing the petition for rehearing and vacating our December 7, 1982, order. This opinion is issued as the result of the petition for rehearing.


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORLANDO ATENCIA, Defendant-Appellant.
    First District (2nd Division)
    No. 81—2248
    Opinion filed March 8, 1983.

      James J. Doherty, Public Defender, of Chicago (Hugh Steven, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Dean Karlos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Defendant Orlando Atencia was charged by indictment with possession with intent to deliver 30 grams or more of a substance containing cocaine. (El. Rev. Stat. 1979, ch. 56x/2, par. 1401(aX2).) He was tried by a jury, found guilty, and sentenced to 18 years’ imprisonment.

Defendant flew into Chicago on a one-way ticket from Miami on March 16, 1981. Defendant planned to stay in the area only four or five days.

On March 18, 1981, three Hispanic men registered at the Spa Motel in Chicago, Illinois. One of the three signed the name Orlando Atencia to the registry and was assigned room 236. The desk clerk could not positively identify defendant as one of the three men.

On March 19, agents from the Federal Drug Enforcement Administration (DEA) and detectives from the Chicago police department were conducting surveillance on the Belmont Bowl bowling alley in Chicago. They observed defendant and another man enter the alley around 8 p.m. When defendant and his companion left the alley in a car just after 10 p.m., the agents followed them to the Spa Motel. Defendant and his companion entered the motel lobby and went into the elevator. The detectives and agents conducted surveillance outside the motel for about two hours, until 12:30 a.m. on March 20. Neither defendant nor his companion were seen leaving the motel during this time.

A search warrant for room 236 at the Spa Motel was secured on the basis of an informant’s tip. The warrant was executed by Chicago police and DEA agents on March 20. The officers entered the room with a pass key.

Upon entering the room, the officers discovered the defendant standing in only his underwear and socks and pointing a gun at them. Defendant was ordered to drop his gun, which he did. A search of the room turned up four plastic bags under the bed containing a white powdery substance and $26,900 in cash in a dresser drawer. Defendant was allowed to retrieve the rest of his clothes in the room and he was placed under arrest.

Laboratory tests on the contents of the four plastic bags revealed that two of the bags contained 1,953 grams of cocaine. Following a jury trial, defendant was convicted of possession of cocaine with intent to deliver and was sentenced to 18 years’ imprisonment.

Defendant first contends that the prosecution failed to prove beyond a reasonable doubt that defendant possessed, with the intent to deliver, 30 or more grams of a substance containing cocaine. 111. Rev. Stat. 1979, ch. 56x/2, par. 1401(a)(2).

In order to show unlawful possession, the State must show (1) defendant’s knowledge of the presence of narcotics and (2) defendant’s immediate possession and control of the substance. (People v. Nettles (1961), 23 Ill. 2d 306, 307, 178 N.E.2d 361.) Where narcotics are found on premises under defendant’s control, it may be inferred that he had the requisite knowledge and possession, absent other facts and circumstances that might leave a reasonable doubt as to guilt in the minds of the jury. (People v. Bell (1972), 53 Ill. 2d 122, 126, 290 N.E.2d 214.) Whether there is possession and knowledge are both questions of fact to be determined by the jury, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. People v. Calhoun (1977), 46 Ill. App. 3d 691, 694-95, 361 N.E.2d 55.

In the instant case, room 236 at the Spa Motel in Chicago was registered to “Orlando Atencia” on March 18. The following day, March 19, defendant and another man entered the Spa Motel some time after 10 p.m. On March 20, shortly after 8 p.m., defendant was discovered in room 236 at the Spa Motel wearing only underwear and socks. The rest of his clothing had been hung in the room.

This evidence strongly suggests that room 236 was under defendant’s control.

Defendant notes that the desk clerk at the Spa Motel testified that the registration on room 236 expired at noon on March 19. Under the totality of the circumstances presented, however, we cannot say that the jury’s conclusion that defendant was in control of room 236 was so unreasonable or improbable as to create a reasonable doubt of guilt.

Defendant next contends that the evidence was insufficient to prove an intent to deliver.

Testimony at trial revealed that cocaine is normally sold “on the street’’’ in quantities of quarter-grams, half-grams, and grams. Two of the bags found in defendant’s constructive possession contained 1,953 grams of cocaine, much more than could reasonably be considered for personal use. Under these circumstances, it is reasonable to infer that such a quantity of cocaine was possessed with the intent to deliver. See People v. Munoz (1982), 103 Ill. App. 3d 1080, 1082, 432 N.E.2d 370.

Defendant also contends that the State failed to prove beyond a reasonable doubt that the substance in question was cocaine.

Police chemist Fitzgerald testified that she conducted seven tests on the substance at issue and that these tests are accepted in the field of forensic science for determining the presence of cocaine. Fitzgerald testified that she was certain that the substance was cocaine after the fifth test (infrared spectometry test). The final two tests (mixed crystalline and mixed melting point) were conducted for the sole purpose of determining whether the cocaine was type L (organic) or type D (synthetic).

Defendant contends that the State failed to prove that the substance at issue was organic cocaine. Defendant does not attack the testing methods used to establish the presence of cocaine. Rather, defendant’s objection focuses upon the testing methods used to determine whether the cocaine was type L or type D.

The statute under which defendant was convicted refers only to “any substance containing cocaine.” (Ill. Rev. Stat. 1979, ch. 56%, par. 1401(a)(2).) There is no requirement that the cocaine be identified as type L or type D, and defendant has cited no authority requiring such a distinction. The police chemist, Fitzgerald, testified that after performing the first five tests she concluded that the substance at issue contained cocaine.

Defendant’s expert witness did not refute Fitzgerald’s conclusion, nor did he attack the reliability of the tests performed by Fitzgerald in reaching that conclusion. Rather, the expert’s testimony focused on the reliability of the final two tests which were performed to determine if the cocaine was type L or type D. The jury was entitled to believe the unrefuted testimony by Fitzgerald that the substance at issue contained cocaine. Any question regarding the validity of the final two tests used to distinguish between type L or type D cocaine is irrelevant.

Defendant next contends that the evidence fails to exclude the reasonable hypothesis that defendant was left holding the bags of cocaine by a third party and that defendant had no intention of participating in the delivery of the substance. Since the evidence establishing defendant’s knowing possession and intent to deliver is circumstantial, every reasonable hypothesis of innocence must be excluded. (People v. Pizzi (1981), 94 Ill. App. 3d 415, 421, 418 N.E.2d 1024.) Such a hypothesis, however, must arise from the evidence. (See People v. Calhoun (1972), 4 Ill. App. 3d 683, 690-91, 281 N.E.2d 363.) The trier of fact need not search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt. (People v. Rhodes (1981), 85 Ill. 2d 241, 249, 422 N.E.2d 605.) In the instant case, defendant asserts that he may have been left “holding the bag.” Nothing in the record, however, supports such a theory. Absent some evidence supporting it, defendant’s theory of innocence does not give rise to a reasonable doubt as to his guilt.

Defendant next contends that the use at trial of his testimony given at two bail reduction hearings constitutes a violation of defendant’s rights to reasonable bail and against self-incrimination. Defendant filed two motions to have bail reduced and was granted hearings on April 1 and 3. Defendant’s testimony at these hearings revealed that he was a resident of Miami, that he had arrived in Chicago on March 16 and planned to stay only four or five days, that he had no friends or relatives here, and that he had been living at two hotels while in Chicago. Defendant contends that permitting the use of this testimony at trial violated defendant’s fifth amendment right against self-incrimination and his eighth amendment right to reasonable bail. This is so, defendant claims, because allowing the prosecution to use a criminal defendant’s testimony from a bail hearing at trial will force many defendants to sacrifice their constitutional right to reasonable bail in order to preserve their right against self-incrimination. Defendant charges that the necessity of choosing between these constitutional rights is “simply intolerable.” Citing Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (use of suppression hearing testimony at trial constitutionally proscribed).

Although Illinois courts have not addressed this particular argument, the Federal courts have held that the use at trial of testimony from a bail hearing does not necessarily violate a defendant’s fifth or eighth amendment rights. (See United States v. Dohm (5th Cir. 1980), 618 F.2d 1169, 1173-74; United States v. Miller (1st Cir. 1978), 589 F.2d 1117, 1135, cert. denied (1979), 440 U.S. 958, 59 L. Ed. 2d 771, 99 S. Ct. 1499; c.f Spinelli v. United States (8th Cir. 1967), 382 F.2d 871, 891-92, rev’d on other grounds (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (address information given by defendant prior to release on bail may be used at trial).) These cases have distinguished Simmons, relied on by defendant, by noting that in a fourth amendment suppression hearing, the testimony given necessarily goes to the ultimate issues in the case whereas in a bail hearing, defendant need not divulge the facts in his case in order to receive the benefits of the eighth amendment right to reasonable bail. (United States v. Dohm (5th Cir. 1980), 618 F.2d 1169, 1173-74; United States v. Miller (1st Cir. 1978), 589 F.2d 1117, 1135, cert. denied (1979), 440 U.S. 958, 59 L. Ed. 2d 771, 99 S. Ct. 1499.) Moreover, the necessity of having to choose between constitutional rights is not in and of itself constitutionally prohibited since “[t]he criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow.” (United States v. Miller (1st Cir. 1978), 589 F.2d 1117, 1135, cert. denied (1979), 440 U.S. 958, 59 L. Ed. 2d 771, 99 S. Ct. 1499, quoting McGautha v. California (1971), 402 U.S. 183, 213, 28 L. Ed. 2d 711, 729, 91 S. Ct. 1454, 1470; see also Spinelli v. United States (8th Cir. 1967), 382 F.2d 871, 891-92, rev’d on other grounds (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584.) We find that the use of defendant’s bail reduction hearing testimony at trial does not, in itself, constitute a violation of defendant’s rights to reasonable bail and against self-incrimination.

Alternatively, defendant contends that testimony from a bail hearing should be used at trial only if defendant “knowingly and intelligently” waives his right against self-incrimination. Defendant asserts that because he was not informed prior to testifying at the bail reduction hearings of his right to remain silent, he did not waive that right and therefore, his testimony should have been excluded at trial.

In an analogous situation, our supreme court has held that eliciting inculpatory information during the booking process does not constitute a violation of a defendant’s right against self-incrimination even though the warnings required under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, were not repeated prior to the booking. (People v. Fognini (1970), 47 Ill. 2d 150, 152, 265 N.E.2d 133, cert. denied (1971), 402 U.S. 911, 28 L. Ed. 2d 653, 91 S. Ct. 1389.) The court concluded that, unlike the in-custody interrogation involved in Miranda, the questions asked during the booking process are not of the type designed to elicit incriminating testimony or admissions from the defendant (47 Ill. 2d 150, 152) and that therefore, the Miranda warnings need not be repeated prior to booking.

Here the record reveals that the questioning at the bail reduction hearings was not designed to elicit incriminating testimony. The questioning was not conducted by the prosecution. Defendant was questioned at the first hearing by the court and at the second hearing by defense counsel. The testimony elicited did not go directly to any element of the crime charged. Defendant’s testimony revealed, among other things, that defendant was a resident of Miami, that he had flown in on March 16 intending to stay for only four or five days, and that he had been staying at two hotels while in Chicago. Moreover, defendant was represented by counsel at both hearings. The presence of counsel served as adequate protection of defendant’s Miranda rights and obviated the need to repeat the Miranda warnings to defendant prior to his testimony at the bail reduction hearings. Under these circumstances, the court was not obligated to read defendant the Miranda warnings prior to his testifying at the bail reduction hearings and, therefore, the use of his testimony from those hearings at trial did not violate defendant’s right against self-incrimination.

Defendant’s final contention is that the trial court abused its discretion by sentencing defendant to 18 years’ imprisonment and by refusing to modify that sentence.

Sentencing in Illinois is largely a matter of judicial discretion. (People v. Kloiber (1981), 95 Ill. App. 3d 1061, 1071, 420 N.E.2d 870.) A proper sentence must be based on the particular factors of each case. Among the factors to be considered in imposing sentence are the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, age, prior conviction record, and the nature and circumstances of the offense for which the defendant is being sentenced. (95 Ill. App. 3d 1061, 1071.) The trial judge is present during the course of the trial and the sentencing hearing and is thus in a far superior position to evaluate these factors than is a court of review. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) The trial judge’s decision as to sentencing is entitled to great deference and will not be disturbed on appeal absent an abuse of discretion. 68 Ill. 2d 149, 154.

In the instant case, the evidence reveals, among other things, that defendant was 40 years old at the time of sentencing, is married, and has three children. The evidence also reveals that the defendant’s family has no property or savings, and that Mrs. Atencia’s employment involves cleaning apartments and she receives food stamps. Defendant has no prior convictions, and he informed the court that he became involved with the cocaine deal because his family was in extreme financial difficulty.

Prior to sentencing, the court received a presentence investigation report on defendant and stated that it was familiar with its contents. The court also stated that it was familiar with defendant’s background which was explored in the hearing in aggravation and mitigation. The primary reason, according to the court, that defendant was sentenced to 18 years’ imprisonment was because of the large amount of cocaine involved. The court stated that it questioned defendant’s motive for getting involved in this scheme and it commented that defendant became involved as though he were a “major trafficker” of cocaine. The court noted defendant’s age, the fact that defendant had never been convicted for any offense, and the impact that his absence would have on his family. The court stated that ordinarily, where this much cocaine was involved, it would have imposed the maximum sentence allowable (30 years) but, because of the alleged reasons defendant became involved in this scheme, only an 18-year sentence would be imposed. The court stated that it had given much thought to the proper sentence to impose and, notwithstanding the factors in mitigation, it felt a harsh sentence was in order.

It appears that the trial court considered all the relevant factors which the law requires be considered prior to imposing sentence. A search of the record reveals no evidence that the trial court abused its discretion by sentencing defendant to 18 years’ imprisonment. Under these circumstances, it would be improper for us to substitute our judgment for the trial court’s even if we would have imposed a different sentence had that function been delegated to us. See People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882.

For the reasons expressed herein, the judgment of the trial court is affirmed.

Affirmed.

DOWNING, P.J., and HARTMAN, J., concur.


author: JUSTICE McGLOON

text:
    T.J. FOX et al., Plaintiffs-Appellants, v. NORTHWEST INSURANCE BROKERS, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 81—2991
    Opinion filed March 14, 1983.

      Anthony C. Valiulis, Stuart M. Widman, and Jill G. Maltezos, all of Much, Shelist, Freed, Denenberg, Ament & Eiger, of Chicago, for appellants.
    Thomas Peters, of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Objectors in a class action appeal from the denial of their motions objecting to a notice of settlement, seeking substitution of attorneys, and requesting leave to intervene. The issues raised on appeal are whether (1) the notice by publication was sufficient; (2) the trial court abused its discretion in denying the motion for leave to intervene; and (3) the motion for substitution of attorneys should have been granted.

We affirm in part, reverse in part, and remand.

Plaintiffs are members of a class consisting of persons who unknowingly purchased accidental death insurance between January 1, 1978, and September 25, 1981. The complaint alleged that when plaintiffs purchased or renewed their automobile insurance, Northwest Insurance Brokers, Inc. (Northwest), sold overlapping accidental death policies which were not ordered or requested by plaintiffs and failed to disclose the additional cost of the accidental death policies.

On September 25, 1981, the trial court entered an order approving a proposed class settlement. Under the terms of the order, each named plaintiff was to receive $250 from Northwest. Other class members who filed a timely request for payment were entitled to an amount equal to the cost incurred for unordered accidental death policies. This same day, the trial court also approved the notice of class settlement. The order provided that notice was to be published in the Chicago Daily Law Bulletin on September 30, 1981. Class members seeking inclusion or exclusion were to notify plaintiffs’ attorney before October 30,1981.

On November 16, 1981, the day scheduled for hearings on claims and final approval of the settlement, Perkins, a named plaintiff, filed motions seeking substitution of attorneys and objecting to the manner, sufficiency, and form of the notice. Yerneida Jones, an unnamed class member, filed a petition for leave to intervene and joined Perkins in her motion challenging the notice. The trial court denied the motions and the petition for leave to intervene and found that the notice of settlement was sufficient. It thereafter finalized the settlement agreement and allowed Jones and Perkins to receive damages.

Jones and Perkins contend the notice of settlement given to class members was inadequate and did not meet the requirements of due process. They argue individual notice should have been given to protect the rights of the class members.

Judgments in class action litigation are binding on all class members. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478.) In any proceeding accorded such finality, notice reasonably calculated to apprise interested parties of the pendency of the action is required. (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652.) Such notice protects the class members’ fourteenth amendment right to be heard (Mullane) as well as each member’s option to choose not to participate. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478.) The means employed to notify class members of an action depends on the circumstances of each individual case. (Miner.) Individual notice is not always required. (Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill. 2d 583, 376 N.E.2d 1377; People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 335 N.E.2d 448.) However, where the identity and address of class members is. readily accessible by use of defendant’s files, individual notice is required. Frank, Miner.

The only notice in this case was published in one issue of the Chicago Daily Law Bulletin. Under the circumstances here, this-is not a method which “one desirous of actually informing the absentee might reasonably adopt.” (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 315, 94 L. Ed. 865, 874, 70 S. Ct. 652, 657.) It actually appears that class members could have been notified in a more effective manner. The members of the class certified in this case were those who had been sold accidental- death policies without their knowledge between January 1, 1978, and September 25, 1981. During oral arguments, defendant stated the policies were always sold by one salesman employed during this period. Considering these factors and the interests of the class, the burden of ascertaining the names of the class members through use of defendant’s files is not intolerable. Under the particular facts of this case, we find the notice by publication was inadequate, and an attempt should have been made to notify the members individually.

The plaintiffs-appellees and defendant Northwest have filed motions to dismiss the appeal. They alleged in their motions and briefs that Perkins and Jones were allowed to participate in the settlement, thus suffered no injury, and therefore lack standing to challenge the notice. However, in Waters v. City of Chicago (1981), 95 Ill. App. 3d 919, 420 N.E.2d 599, the court held that objectors in a class may challenge unfair or inadequate aspects of a settlement regardless of whether their rights are personally affected.- Similarly, we find that Jones and Perkins’ participation in the settlement does not preclude their challenge to the inadequacy of the notice in this case.

Jones contends that the trial court abused its discretion in denying her motion for leave to intervene.

Section 57.5 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 57.5) provides in part:

“Any class member seeking to intervene or otherwise appear in the action may do so with leave of court and said leave shall be liberally granted except when the court finds that said intervention will disrupt the conduct of the action or otherwise prejudice the rights of the parties or the class.”

In ruling on- motions to intervene, courts should be indulgent where objections concern notice of settlement. (See Zients v. LaMorte (2d Cir. 1972), 459 F.2d 628.) Given the broad language of section 57.7 and the principle enunciated in Zients, we believe the trial court should have granted the motion to intervene. Only the notice of settlement was challenged. Granting the motion would not have prejudiced the rights of the parties nor would it have severely disrupted the proceedings, since the terms of the settlement were not disputed.

Finally, Perkins contends the trial court abused its discretion in denying her motion for substitution of attorneys. She argues that the attorney for the class did not and cannot adequately represent the interests of the class and cites his agreement to the published notice as evidence of this fact.

Substitution of attorneys is a matter within the discretion of the trial court (Filko v. Filko (1970), 127 Ill. App. 2d 10, 262 N.E.2d 88) and is not an absolute right (Ruskin v. Rodgers (1979), 79 Ill. App. 3d 941, 399 N.E.2d 623). In ruling on a motion to substitute, the trial court should consider whether granting the motion will prejudice other parties or interfere with the administration of justice and whether refusing the motion will harm the party seeking substitution. Filko.

In this case, we find no abuse of discretion. Neither objector will be harmed by the refusal since they will be participating in the settlement. Also, there is no indication whether other class members are dissatisfied with counsel’s representation. Counsel acts on behalf of these other class members and we hesitate to find an abuse of discretion under these circumstances. Furthermore, the court, as well as the attorney for the class, acts as guardian of the class interests and this serves as additional protection for class members. We add that counsel’s approval of the notice in this case is not tantamount to an inability to properly represent the class since this matter can be categorized as a matter of professional judgment.

For the foregoing reasons, the orders of the circuit court of Cook County are affirmed in part, reversed in part, and the cause is remanded.

Orders affirmed in part, reversed in part, and cause remanded.

O’CONNOR and CAMPBELL, JJ., concur.