author: Mr. JUSTICE ST AMOS

text:
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, Plaintiff-Appellant, v. CLIMATEMP, INC., et al., Defendants-Appellees.—THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, Plaintiff-Appellant, v. BORG, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 80-2200, 80-2201 cons.
    Opinion filed November 17, 1981.

      Tyrone C. Fahner, Attorney General, of Chicago (Thomas M. Genovese, Ardath A. Hamann, and Bruce J. Baker, Assistant Attorneys General, of counsel), for appellant.
    Mayer, Brown & Platt, of Chicago (Bryson P. Burnham and John D. Donlevy, of counsel), for appellee Gideon Engineering Corp.
    Friedman & Koven, of Chicago (John B. Simon and Herbert L. Zarov, of counsel), for appellees Borg, Inc., Jeffry Berg, Howard Salzman, and Gideon Goldschmidt.
    Michael B. Nash, of Chicago, for appellees Climatemp, Inc., and Victor Comforte.
    Tim J. Kerr, of Crowley, Fuller and Manning, of Chicago, for appellees Ideal Heating Co., Edward Usher, Zack Co., and Charles L. Howard.
    Thomas Campbell, of Gardner, Carton and Douglas, of Chicago, for appellee Mehring & Hanson-Wendt, Inc.
    Michael W. Coffield, Charles W. Deuser, and Michael D. McCormick, all of Coffield, Ungaretti, Harris and Slavin, of Chicago, for appellee Robert F. Lawinger, Jr.
    Sheldon Davidson and Marilee Roberg, both of Pedersen & Houpt, of Chicago, for appellee Piping Systems, Inc.

      Earl L. Simon, of Wolfe, Klein and Bonner, of Chicago, for appellees Bellis-Hanley, Inc., Stanley B. Beilis, and Richard S. Wise.
   Mr. JUSTICE ST AMOS

delivered the opinion of the court:

Two cases presenting identical questions of law are consolidated for appeal. In both cases, the State asserts that the defendants have violated provisions of the Illinois Antitrust Act (Ill. Rev. Stat. 1979, ch. 38, par. 60 — 1 et seq.) (the Act), and the State seeks to impose civil fines pursuant to section 7(4) of the Act. In People ex rel. Fahner v. Climatemp, Inc., et al., the defendants are sheet metal contractors and the sheet metal workers’ union. In People ex rel. Fahner v. Borg, Inc., et al., the defendants are piping contractors. The State charges that both groups of defendants have violated section 3(1) of the Act by engaging in bid-rigging conspiracies with respect to public works construction in the Chicago area.

The Climatemp action was filed on November 21, 1979. On the same day, the State filed a class action lawsuit in Federal court seeking treble damages. The Federal action joined the same defendants as the State action and alleged the same antitrust violations. The Federal lawsuit includes claims under the Sherman Act (15 U.S.C. §§1-7 (1976)) and the Clayton Act (15 U.S.C. §§15, 26 (1976)) and a pendent treble damages claim under the Illinois Antitrust Act. Plaintiffs in the Federal action are the State of Illinois, the County of Cook, the Chicago Board of Education, and the class of public entities similarly situated.

The Borg action was filed on December 14, 1979. On the same day, the State filed a parallel Federal treble damages class action nearly identical to the Climatemp suit already pending in Federal court. The Attorney General represents the State in both of the State court “civil fine” actions. In the Federal lawsuits, the Attorney General represents the State and the Chicago Board of Education; the County of Cook is represented by the State’s Attorney. The Federal class actions remain pending in the district court.

In the Borg and Climatemp State actions, the defendants moved to dismiss the State’s complaint on two grounds. Defendants contend that (1) section 7(4) of the Illinois Antitrust Act precludes the State from maintaining both a civil treble damages action and a civil action to recover a penalty, and (2) section 48(1) (c) of the Civil Practice Act (Ill. Rev. Stat. 1979; ch. 110, par. 48(1)(c)) mandates dismissal of an action when another action is pending between the same parties for the same cause. In. Climatemp, the trial court granted defendants’ motion to dismiss the State’s complaint, citing both of the proffered bases. In Borg, the trial court also dismissed the complaint but declined to rule on the basis of section 48(1) (c) of the Civil Practice Act or section 7(4) of the Illinois Antitrust Act. Instead, the trial court found that “it is an abuse of power under the particular circumstances of this case for the State to bring both this action and a pending Federal action # 0 * for the same offense.” The State’s appeals from the dismissals in Borg and Climatemp have been consolidated in this court.

The construction of section 7(4) of the Illinois Antitrust Act is a question of first impression. That section states:

“In lieu of any penalty otherwise prescribed for a violation of this Act, and in addition to an action under Section 7(1) of this Act, the Attorney General may bring an action in the name and on behalf of the people of the State against any person, trustee, director, manager or other officer or agent of a corporation, or against a corporation, domestic or foreign, to recover a penalty not to exceed $50,000 from every person who committed any act herein declared illegal. The action must be brought within 4 years after the commission of the act upon which it is based.” (Ill. Rev. Stat. 1979, ch. 38, par. 60 — 7(4).)

Defendants maintain that the trebling of damages (allowed by section 7(2) of the Act) amounts to a penalty, and the opening line of section 7 (4) (“In lieu of any penalty otherwise prescribed ° ” *”) precludes the State from seeking both treble damages and civil fines. The State argues that the penalties “otherwise prescribed” are the criminal sanctions imposed by section 6 of the Act. Treble damages, in the State’s view, are compensatory rather than penal. See L. Void, Are Threefold Damages under the Anti-Trust Act Penal or Compensatory? 28 Ky. L.J. 117 (1940) (arguing that actual damages are inadequate when a plaintiff’s business has been destroyed and that trebling of damages is therefore compensatory) .

The State’s argument that treble damages are wholly compensatory defies both logic and the plain wording of the Act. Section 7(2), which provides for trebling of damages in certain instances, states that “the person injured shall be awarded 3 times the amount of actual damages.” (Ill. Rev. Stat. 1979, ch. 38, par. 60 — 7(2).) Since “actual damages” are intended to make the plaintiff whole, any multiplication of the amount of actual damages serves to increase the award beyond the merely compensatory. A comment by Judge Learned Hand, referring to the Federal treble damages action, is here apropos: “The remedy provided is not solely civil; two thirds of the recovery is not remedial and inevitably presupposes a punitive purpose.” Lyons v. Westinghouse Electric Corp. (2d Cir. 1955), 222 F.2d 184, 189; see also Bertha Building Corp. v. National Theatres Corp. (2d Cir. 1959), 269 F.2d 785, 789, cert. denied (1960), 361 U.S. 960, 4 L. Ed. 2d 542, 80 S. Ct. 585 (antitrust treble damages actions are “private suits for damages which are exemplary in part but not wholly unrelated to actual loss”).

Several Federal court decisions have viewed the trebling of damages as a penalty. (See, e.g., Schiffman Bros. v. Texas Co. (7th Cir. 1952), 196 F.2d 695, 697, and cases cited therein.) Illinois courts have not considered the issue since the turn of the century, when the issue was not the trebling of damages under the Illinois Antitrust Act but a treble damages provision of “An Act to prevent extortion and unjust discrimination in the rates charged 0 * * [by] railroads.” (See Rev. Stat. 1885, ch. 114, pars. 124-133.) The Illinois Supreme Court, construing the treble damages provision of this act, deemed such damages a statutory penalty. (See Atchison, Topeka & Santa Fe Ry. v. People (1907), 227 Ill. 270, 279, 81 N.E. 342; Chicago, Burlington & Quincy R.R. v. Jones (1894), 149 Ill. 361, 397, 37 N.E. 247.) In Hoskins Coal & Dock Corp. v. Truax Traer Coal Co. (7th Cir. 1951), 191 F.2d 912, cert. denied (1952), 342 U.S. 947, 96 L. Ed. 704, 72 S. Ct. 555, a Federal circuit court, citing the Illinois treble damages cases involving railroads, held that the trebling of antitrust damages is a penalty under Illinois law. (191 F.2d 912, 914; see Schiffman, at 696-97 (reaffirming the Hoskins rationale and result).) The Hoskins and Schiffman cases construed Illinois law for the purpose of applying an Rlinois statute of limitations to a Federal antitrust suit. Other courts, construing the law of other States, have held that treble damages are not a statutory penalty. See, e.g., Chattanooga Foundry & Pipe Works v. City of Atlanta (1906), 203 U.S. 390, 51 L. Ed. 241, 27 S. Ct. 65 (construing a Federal statute of limitations and Tennessee law); Englander Motors, Inc. v. Ford Motor Co. (6th Cir. 1961), 293 F.2d 802, 807 (construing Ohio law); Bertha Building Corp., at 789 (construing New York law); Holley v. Coggin Pontiac, Inc. (1979), 43 N.C. App. 229, 242, 259 S.E.2d 1, 9-10; Tulsa Ready-Mix Concrete Co. v. McMichael Concrete Co. (Okla. 1972), 495 P.2d 1279, 1283; contra, Powell v. St. Louis Dairy Co. (8th Cir. 1960), 276 F.2d 464, 467 (construing Missouri law); Gordon v. Loews, Inc. (3d Cir. 1957), 247 F.2d 451, 457 (construing New Jersey law); cf. John Mohr & Sons, Inc. v. Jahnke (1972), 55 Wis. 2d 402, 198 N.W.2d 363, 368 (under Wisconsin law, treble damages are punitive; allowing punitive damages in addition to treble damages imposes two penalties for the same act and violates due process).

We do not rely solely on the proposition that the word “penalty” in section 7(4) encompasses treble damages. The wording of section 7(4) reveals that a principle of statutory interpretation is applicable: expressio unius est exclusio alterius. Section 7(4) begins, “In lieu of any penalty otherwise prescribed ” ” ”, and in addition to an action under Section 7(1) of this Act, the Attorney General may bring an action [for civil penalties].” Section 7(1) of the Illinois Antitrust Act authorizes the Attorney General to bring a civil action to enjoin violations of the Act. (Ill. Rev. Stat. 1979, ch. 38, par. 60 — 7(1).) The statute therefore expressly allows concurrent civil actions to restrain violations and to impose fines. Since section 7(2) of the Act authorizes the State and other public entities to bring civil treble damages actions, the legislature’s failure to say “in addition to actions under Sections 7(1) and 7(2)” suggests a conscious omission of the treble damages lawsuit from the list of actions compatible with the claim for civil penalties. See 2A A. Sutherland, Statutory Construction §47.23, at 123 (1973); see also Howlett v. Doglio (1949), 402 Ill. 311, 320, 83 N.E.2d 708 (the enumeration of certain things in a statute implies the exclusion of all other things).

Federal courts have articulated the purpose of trebling a private plaintiff’s antitrust recovery, and this reasoning supports the conclusion that the State must choose between an action for civil penalties and a treble damages action. In Kinnear-Weed Corp. v. Humble Oil & Refining Co. (5th Cir. 1954), 214 F.2d 891, cert. denied (1955), 348 U.S. 912, 99 L. Ed. 715, 75 S. Ct. 292, the court stated: “The grant of a claim for treble damages to persons injured was for the purpose of multiplying the agencies which would help enforce the antitrust laws and therefore make them more effective.” (214 F.2d 891, 893; see United States v. Borden Co. (1954), 347 U.S. 514, 518, 98 L. Ed. 903, 908, 74 S. Ct. 703, 706 (private treble damages action supplements government enforcement of antitrust laws).) Unlike the private plaintiff, the State does not need the incentive of trebled damages to spur it to action against antitrust violators. It is the duty of the Attorney General to enforce the Illinois Antitrust Act. (Ill. Rev. Stat. 1979, ch 38, pars. 60 — 6, 60 — 7.) Although the State is expressly allowed the same right as other injured parties to sue for threefold damages, two-thirds of the State’s recovery in such a case must be recognized as a penalty. The State can therefore choose the civil penalty it will seek — trebled damages under section 7 (2) or civil fines under section 7(4). Under this construction, the trebling of damages, which serves as an incentive to the private plaintiff, acts as the State’s civil sanction against the antitrust violator.

Defendants also contend that section 48(1) (c) of the Civil Practice Act precludes the State from maintaining two separate actions arising from the same alleged antitrust violations. Section 48 states:

“(1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds.
ft ft ft
(c) That there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1979, ch. 110, par. 48.)

Defendants rely on Bonovich v. Convenient Food Mart, Inc. (1974), 18 Ill. App. 3d 884, 310 N.E.2d 710, where a division of this court relied on section 48(1)(c) in affirming the dismissal of a private action for antitrust treble damages. In Bonovich, the State filed an action to enjoin an alleged violation of the Illinois Antitrust Act. Thereafter, the plaintiff filed a civil treble damages action against the same defendants, alleging the same antitrust violations. The defendants prevailed against the State and the private plaintiffs action was subsequently dismissed. The appellate court affirmed, holding that the State’s action, brought by the Attorney General on behalf of the People of the State of Illinois involved the same parties and the same cause and therefore precluded the plaintiff’s private action. (Bonovich, at 886.) Although the “same parties” requirement of section 48(1) (c) does not demand identity of parties (see People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 255, 357 N.E.2d 534), we believe that the Bonovich court’s definition of “same parties” is overly broad. If an action brought in the name of the People of the State of Illinois is held to encompass the “same parties” as an action brought by a single Illinois resident, then the State’s attempt to enforce laws such as the Illinois Antitrust Act could be hobbled by the fact that a private action for the same cause was already pending. Such a result cannot have been the legislature’s intent. The Bonovich result is also suspect because there were not two actions pending when the plaintiff’s private suit was dismissed: the State’s action had already ended with a finding in favor of the defendants. (See Bonovich, at 885.) On these facts, section 48(1)(c) was inapplicable, and we decline to follow the Bonovich decision.

Nevertheless, other Illinois authorities support a finding that the cases at bar involve the “same parties” and the “same cause” as the Federal class actions and were therefore subject to dismissal under section 48(l)(c). In Skolnick v. Martin (1964), 32 Ill. 2d 55, 203 N.E.2d 428, cert. denied (1965), 381 U.S. 926, 14 L. Ed. 2d 684, 85 S. Ct. 1561, our supreme court held that the “same cause” requirement of section 48(1) (c) refers to actions arising out of the same transaction or occurrence. (See Skolnick, at 57.) The State does not dispute the applicability of the Skolnick decision and does not contend that the cases at bar and the Federal class actions are not the “same cause.”

The State does argue, however, that the instant cases and the Federal court lawsuits do not involve the same parties. In the cases at bar, the State is the sole plaintiff. In the Federal class actions, the named plaintiffs are the State, Cook County, the Chicago Board of Education, and the class of public entities injured by the alleged bid-rigging conspiracies. In Anagnost v. Hammond Corp. (1979), 73 Ill. App. 3d 667, 392 N.E.2d 335, the plaintiff in the State court action was a member of a class of stockholders that was seeking similar relief in a class action in Federal court. The appellate court found that the class action embraced the rights of the individual plaintiff and that the “same parties” requirement of section 48(1) (c) had been met. (See Anagnost, at 670-71.) In the instant cases, the State is more than a member of the plaintiff class in Federal court — the State is one of the class representatives.

The State, however, argues that “the State” in the Illinois cases is not the same party as “the State” in the Federal class actions because the State plays differing roles in the two forums. The gist of this “dual capacity” argument is that in the civil fine actions the State is acting in its capacity as sovereign, and in the Federal class actions the State is acting in its proprietary capacity. This argument, though imaginative, is rebutted by the established rule that the “same parties” language in section 48(1) (c) requires only substantially similar parties, not identical parties. (See, e.g., Phillips Petroleum Co., at 255; Baker v. Salomon (1975), 31 Ill. App. 3d 278, 282, 334 N.E.2d 313.) Regardless of the different roles taken by the State in various circumstances, we find that the “sovereign” State is substantially similar to the “proprietary” State, that the cases at bar therefore involve the same parties and the same causes as the lawsuits in Federal court, and that section 48(1) (c) applies.

Defendants assume that if the requirements of section 48(1)(c) have been met, then section 48 mandates dismissal of the State’s complaint. This assumption is incorrect. In the recent case of A. E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23, our supreme court acknowledged that the purpose of section 48(1) (c) is to avoid duplicative litigation, but held that a trial court can, in the exercise of its discretion, deny a section 48(1) (c) motion and permit multiple actions between the same parties. (See A. E. Staley Manufacturing Co., at 252-53.) In Staley, the supreme court reversed the decision of a trial court that believed it had no discretion to deny a motion under section 48(1) (c). (A. E. Staley Manufacturing Co., at 253.) Reviewing the records, we do not believe that either of the trial courts below underestimated the extent of its discretion, as did the trial court in Staley. We conclude that to the extent the dismissals below were based on section 48(1) (c), the decisions should be affirmed.

In the Climatemp action, section 48(1) (c) was one of the stated grounds for dismissal of the complaint. In the Borg action, the trial court ruled only that the Attorney General abused his power by maintaining similar actions in two forums. We find that the dismissals were authorized on statutory grounds: section 7(4) of the Illinois Antitrust Act and section 48(1) (c) of the Civil Practice Act. In view of this conclusion, we need not rule on the nonstatutory grounds relied on by the trial court in Borg.

Nevertheless, we note that the cases generally afford a broad leeway to the prosecutorial decisions of the Attorney General. In People ex rel. Barrett v. Finnegan (1941), 378 Ill. 387, 38 N.E.2d 715, our supreme court said, “[The Attorney General] has arbitrary discretion to institute proceedings in any case of purely public interest.” (378 Ill. 387, 393.) In People ex rel. Elliott v. Covelli (1953), 415 Ill. 79, 112 N.E.2d 156, the court suggested that the Attorney General abuses his power when he repeatedly brings and dismisses charges in a capricious and vexatious manner. (See Covelli, at 86-87.) The Covelli decision, while treating a different alleged abuse of power, indicates that the caprice and vexatiousness of the Attorney General’s actions must reach a fairly high level before the courts may interfere with his prosecutorial discretion. We do not believe that the Attorney General’s actions in the cases at bar approached such a level.

The question before the reviewing court, however, is the correctness of the result reached below and not the correctness of the trial court’s reasoning. (People v. York (1963), 29 Ill. 2d 68, 71, 193 N.E.2d 773.) The dismissal of the complaints for civil fines was proper under both section 7(4) of the Illinois Antitrust Act and section 48(1) (c) of the Civil Practice Act. We therefore affirm the decisions in Borg and Climatemp.

Affirmed.

HARTMAN, P. J., and PERLIN, J., concur.

       This analysis applies only to civilly imposed sanctions. Section 6 of the Illinois Antitrust Act provides criminal sanctions for violations of the Act. Nothing in the statute suggests that the State may not maintain a civil treble damages action concurrently with a criminal prosecution. The standard of proof for a criminal conviction is, of course, more rigorous than that required for civil liability.


source: Caselaw Access Project

author: Mr. JUSTICE WILSON

license: Public Domain

text:
    FRANK URMAN, Plaintiff-Appellee, v. FRED WALTER et al., d/b/a Vermont Street Investments, Defendants-Appellants.
    First District (5th Division)
    No. 79-2471
    Opinion filed November 13, 1981.

      Schaffenegger, Watson and Peterson, Ltd., of Chicago (Donald G. Peterson, of counsel), for appellants.
    Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Maureen A. Mitchel and Curt N. Rodin, of counsel), for appellee.
   Mr. JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendants were found liable to plaintiff under the Structural Work Act. (Ill. Rev. Stat. 1979, ch. 48, par. 60.) The trial court entered judgment against defendants in the amount of $83,232.50 for injuries plaintiff suffered when a 600-pound steel truss fell on his leg. Defendants appeal, contending that (1) the Structural Work Act is inapplicable to the circumstances of this case; (2) the trial court erred in preventing defendants from amending their answer to plead that plaintiff was their employee, which may have constituted a defense under the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5); (3) the judgment should be reversed because of plaintiff’s counsel’s prejudicial closing argument; and (4) the trial court abused its discretion in allowing plaintiff’s expert witness to testify after he had failed to give defendants his deposition. We affirm the trial court.

Plaintiff, a structural ironworker, was injured on September 21,1974, while he was working at a construction site in Palatine, Illinois. The individual defendants owned Vermont Street Investments, which was the general contractor for the construction project. Defendant Walter took the most active role as general contractor for the erection of the structural steel, scheduling and coordinating the steel erection. As general contractor in charge, he was also responsible for safety on the job site.

Walter had originally hired Jim’s Welding Service to erect the steel columns, beams, and trusses into a grid so that the roof decking could be laid. By the day of the occurrence, however, Jim’s Welding had only partly completed the work and could not continue. Walter therefore contacted another ironworker, Lenny Aftstein, who worked for Corbetta Steel Company, and arranged for him and his co-workers, including plaintiff, to finish the job on a weekend.

When plaintiff and the other ironworkers arrived at the site, the perimeter and partition brick walls of the building were completed. The interior ground had been filled with gravel, clay, and unrefined sand, which had been graded once before the masonry work was begun. The roof trusses, which were to be placed on top of the beams, were outside the building when the ironworkers arrived. They moved them inside with a crane and placed them directly on the ground. At that time, the ground was bumpy and full of ruts because it had been used by forklifts, trucks, and cranes after being graded once.

In the early afternoon of the day of plaintiff’s injury, a heavy rain fell and stopped the ironworkers for approximately 30 minutes. Shortly after the rain ceased, the men returned to work. Plaintiff and Herman Johnson, the ironworker’s foreman, began the necessary procedures to lift the trusses in place on the roof beams. Just before the accident, Johnson and plaintiff were preparing to attach a choker or sling around one of the trusses so that they could hook the other end onto the crane that would lift it into place. Suddenly, several trusses fell over and pinned plaintiff to the ground, breaking his ankle. He was taken to a hospital for treatment.

Plaintiff filed suit against defendants on October 17, 1975, seeking $200,000 in damages for his injuries.

In October of 1979, the trial began. Plaintiff first called defendant as a witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). Walter admitted that he was the general contractor in charge of safety on the job site. He testified that he was familiar with the practice of using cribbing or wood supports to stabilize trusses. He also testified that plaintiff was not his employee.

Plaintiff then presented three witnesses who testified as to the customs and practice of the ironworking industry with respect to the support of trusses on job sites. Herman Johnson, the foreman, was an ironworker with 24 years of experience. He stated that the “normal procedure” was to put the trusses on four-by-four planks of lumber to make them level and prevent them from rolling. Johnson further testified that when he asked defendant Walter for lumber to be used for such support, he was told that there was none available.

James Finney, an ironworker with 12 years experience, also testified from his personal knowledge that the custom and practice in the ironworking industry was to support trusses with heavy lumber to support and stabilize them. He further testified that the general contractor is the party responsible for providing such cribbing.

In addition to the other two witnesses, Charles Schultz testified for plaintiff, over defense objections, as an expert on industry practices. His experience included a total of lOM years as a safety inspector for State and Federal government agencies. At the time of trial, Schultz worked as a construction safety consultant for general contractors. In his opinion, based on plaintiff’s counsel’s hypothetical, the trusses had been placed on unstable ground without sufficient support and created a dangerous situation that violated the rules and general practices of the construction industry. He further testified that four-by-fours, four-by-sixes, or railroad ties should have been used as cribbing for the trusses, to protect the workers.

Dr. Robert W. Alfini, plaintiff’s treating physician, described the injury and the surgical procedures used to repair plaintiff’s broken ankle. He also testified that plaintiff wore a leg cast for approximately 12 weeks. Subsequently, he underwent physical therapy. By the time of trial, although the break had healed, plaintiff still suffered from some permanent damage to the soft tissue surrounding the fracture. He continued to suffer pain upon prolonged activity and changes in the weather.

After plaintiff rested, defendants moved for leave to amend their answer to plead the affirmative defense that plaintiff was defendants’ employee. They proposed to show that since plaintiff collected unemployment compensation from defendants, he was barred from suing them under the Structural Work Act. Plaintiff objected on the grounds that such an amendment was untimely. Further, he argued that defendant Walter’s admission that plaintiff was not his employee was a binding admission on that issue. The court allowed defendants to file the motion for the record but denied leave to amend the pleadings to add the affirmative defense.

Defendants then called the court reporter who had been present during plaintiff’s deposition on July 21, 1977. She read portions of the deposition into the record.

At the close of their case, defendants moved for a directed verdict, which was denied. The jury was instructed, following counsels’ closing arguments, and they returned a verdict in favor of plaintiff.

Opinion

I

The principal issue of this appeal involves the scope of section one of the Structural Work Act, which provides:

“[A] 11 scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for.the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1979, ch. 48, par. 60.

The Structural Work Act is designed to protect workers engaged in extrahazardous activities from certain risks inherent in the nature of their jobs. (E.g., Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 302 N.E.2d 64; Crist v. Debron Corp. (1981), 96 Ill. App. 3d 668, 421 N.E.2d 997.) Although the Act should be liberally construed (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573), it is not intended to cover all injuries that may occur on or near a construction site. Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817.

The elements of a cause of action under section one include the following: (1) the device involved must be one listed in the Act; (2) the device involved must be used in the construction of a building or “other structure” within the Act; (3) the device must be unsafe, or not safely placed or operated (or there must be the failure to provide such a device); (4) defendants (those who are “in charge of” the work) must have “wilfully” violated the Act; and (5) plaintiff’s injury must be proximately caused by defendants’ violation. (Ring, The Scaffold Act: Its Past, Present and Future, 64 Ill. B. J. 666, 670 (1976).) The pending appeal involves only the first element, whether the cribbing that should have been placed under the trusses is a device that is covered by the Act.

Defendants argue that there is no “scaffold” in this case and no duty to provide one. In essence, they equate the words “hoists, cranes, stays, ladders, supports, or other mechanical contrivances” with the word “scaffold,” which they contend is a term of art with a restricted meaning. Defendants strongly urge us to hold that, for purposes of Structural Work Act liability, the scaffold must be used only for the purpose of supporting workers. If a device is used for any other purpose, it would not be a scaffold and thus would not come within the coverage of the Act. Since plaintiff in this case was standing on the ground, defendants argue, he was not using a scaffold. Nor would cribbing or other “supports” for the trusses constitute a scaffold within the Act’s meaning because the purpose of such cribbing would be to support the trusses, not the workers.

We agree with defendants that “scaffold” is a term of art limited to devices or platforms used to support persons as they work on buildings or other structures covered in the Act. We further agree that as a matter of statutory construction, the terms “scaffold, hoists, cranes, stays, ladders, supports, or other mechanical contrivances” are related in meaning and purpose. Nevertheless, if we construe the other terms as exact synonyms of “scaffold,” thereby limiting them to supports for workers only, we judicially erase terms that the legislature thought important enough to include. Such a result is illogical and unnecessary. Indeed, as at least one court has explicitly recognized, “[t]hat a particular item involved in the construction work may not be a ‘scaffold’ within the customary definition of ‘scaffold’ does not mean it may not be a hoist, crane, stay, ladder, support, or other mechanical contrivance, within the purview of the Act. The Act is not limited to what are customarily referred to as ‘scaffolds.’ ” Miller v. DeWitt (1965), 59 Ill. App. 2d 38, 127, 208 N.E.2d 249, 291, aff'd in part, rev'd in part (1967), 37 Ill. 2d 273, 226 N.E.2d 630.

Notwithstanding the DeWitt determination, defendants persist in their belief that case law has narrowed the scope of the Act to the point that all support devices must function as scaffolds; that is, provide a working platform for persons. Before discussing specific cases, however, we will first examine the specific language of the statute, which “itself affords the best means of its own exposition * * Oldham v. Kubinski (1962), 37 Ill. App. 2d 65, 85, 185 N.E.2d 270, 279.

By its terms, section one provides that all “scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances” used in constructing, or maintaining buildings or “other structures” should be erected, placed and operated so as to protect “persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Emphasis added.) Two categories of persons are thus protected, those who are actually working on the support device and those who pass by or under the same. Such persons are protected from at least two types of injury-causing possibilities, the collapse or other failure of support device (i.e., one that is not safely erected, placed, or operated), and the falling of “any material” that may be used or deposited on the device. The next logical inference from the statutory language would be that to effectuate the protective purpose of the Act, the failure to provide a necessary support device would be as much a violation of section one as the provision of a faulty support device, because the resulting harm would be the same in both situations. In fact, the Illinois Supreme Court has so construed the Act. Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724 (failure to provide scaffolding can violate the Act); see also Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213.

In the pending case, plaintiff does not argue that he was actually standing or working on a support device. He was, concededly, on the ground. He would presumably be within the second category of protected persons, therefore, because of his proximity to the trusses. Consequently, his recovery under the Act would depend on whether there was a duty to provide a support device for the trusses, the absence of which proximately causfed his injury when the trusses fell on his leg. The evidence is uncontradicted that the industry practice is for the general contractor to provide the cribbing for trusses. Defendant Walter admitted as much, and plaintiff’s expert witnesses testified that such cribbing served to protect workers from injury. Two other witnesses agreed that the industry practice was to support the trusses with heavy lumber. The jury decided the fact question of whether defendants breached their duty under the Act and that plaintiff was injured as a result. We would therefore affirm their verdict on the basis of the evidence and our reading of the statute.

Having considered the statutory language and its apparent applicability to the facts of this case, we must next determine whether the case law has in fact narrowed the scope of the Act, as defendants insist. One of the principal cases that defendants rely upon is Swendsen v. Brighton Building & Maintenance Co. (1976), 41 Ill. App. 3d 930, 355 N.E.2d 164.

In Swendsen, the court held that the Structural Work Act did not apply where a worker fell off steel pilings that he was walking upon. The pilings could not be converted into a “scaffold” merely because he chose to walk on them for his own convenience. As the court observed, “[plaintiff failed to establish that he had no alternative except to walk on the piling to get from one end to the other.” (Swendsen, 41 Ill. App. 3d 930, 933, 355 N.E.2d 164, 166.) In conclusion, the court stated that under the circumstances, allowing defendant to recover under the Act “would permit an employee to stand or walk wherever he wishes and, if he is off the ground, his choice becomes a scaffold.” Swendsen, 41 Ill. App. 3d 930, 933, 355 N.E.2d 164, 166.

Although defendants contend that Swendsen is so analogous to the instant case as to compel our reversal of the plaintiff’s judgment, we cannot agree. Our case does not involve the question of whether the surface on which plaintiff was standing when he was injured was a scaffold. Nor does he attempt to turn the trusses themselves into a scaffold, as did the Swendsen plaintiff. Clearly, the issue resolved in Swendsen has no bearing on the question of whether the lack of cribbing in the instant case is actionable under the statute.

Swendsen is an example of the many Structural Work Act cases in which the main issue to be resolved was whether a particular item could be characterized as a scaffold. The courts have used a functional analysis to determine this question. For example, a permanent part of a building, such as a roof, is not generally viewed as a scaffold; however, if a worker is using the roof to support him as he works, he may recover for injuries under the Act. (See Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724.) Similarly, a floor is not a scaffold when it is being used merely as a walkway (Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607; Quinn v. L. B. C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011), but if a worker relies on a partially completed floor for support as a working platform, he may recover. (Juliano v. Oravec (1973), 53 Ill. 2d 566, 293 N.E.2d 897 (plumber’s apprentice injured when his foot slipped through an unfinished subflooring that supported workers as they installed bathroom plumbing in a partially constructed house).) A device that is expressly listed in the Act, such as a crane, may also be considered to be a scaffold (Bounougias v. Republic Steel Corp. (7th Cir. 1960), 277 F.2d 726 (painter standing on the drum of a crane to reach ceiling of a building, who was injured when the drum rotated, stated a cause of action under the Act), but a bulldozer used to clear trees from a power line site is not a scaffold or “mechanical contrivance” (Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App. 3d 1024, 414 N.E.2d 147; see also Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817 (worker who fell off a tractor while hauling steel to a job site was not within the coverage of the Act because the tractor was being used for transportation, not “support”)).

In their reliance on this group of “scaffold cases,” defendants mistakenly assume that the sole relevant inquiry under the Act is whether the injury-causing device can be classified as a working platform for persons. Only one case that we have found, Matthews v. Commonwealth Edison Co., appears to agree with defendants’ position. In Matthews the plaintiff, who was clearing trees in preparation of the laying of power lines, was injured when a tree he had uprooted fell on his arm. The court rejected plaintiff’s argument that the bulldozer he was driving at the time was a “mechanical contrivance” within the Act. The Matthews opinion contains the broad statement that “[t]o come under the Act’s coverage, a case must feature harm caused by a failure of something a worker is using to support himself. Where that feature is missing there can be no liability under the statute.” (Emphasis added.) (Mathews, 90 Ill. App. 3d 1024, 1025, 414 N.E.2d 147.) This declaration is not followed by any citations. Nor can we find any cases that so hold. We agree with the Matthews court’s finding that the bulldozer was not being used in the sense of a scaffold and that the term “mechanical contrivance” should not be used to cover every vehicle or device that a worker happens to be on when he is injured. (See Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817.) Nevertheless, we find unpersuasive the implication that, to come within the Structural Work Act, all support devices are limited by the scaffold concept. Indeed, the reasoning of three Illinois Supreme Court decisions indicates otherwise.

In Miller v. DeWitt (1965), 59 Ill. App. 2d 38, 208 N.E.2d 249, aff'd in part, rev'd in part (1967), 37 Ill. 2d 273, 226 N.E.2d 630, ironworkers who were remodeling a gymnasium were injured when the roof collapsed. The workers had erected tubular steel towers to temporarily support the roof while they removed the original support columns. At the time the roof collapsed, one worker was on the roof and another was cutting a support column off at the bottom in preparation of disconnecting it from the roof trusses. Although the case involved several different issues, the appellate court discussed at length the question of whether a support device within the Act must be, in effect, a scaffold. The court held that the tubular steel columns which were erected to temporarily support the roof (not to be a working platform for persons) were, literally, “supports” and possibly “stays” or “other mechanical devices” erected for use in the construction or alteration of'a Tuilding-withinthe Act’s meaning. (59 Ill. App. 2d 38, 127, 208 N.E.2d 249, 291.) The supreme court expressly adopted the appellate court’s reasoning in this issue. 37 Ill. 2d 273, 286, 226 N.E.2d 630, 639.

In Navlyt v. Kalinich (1972), 53 Ill. 2d 137, 290 N.E.2d 219, a worker who was installing sewer tiles in a trench was killed when the walls of the trench collapsed on him. The supreme court held that the complaint stated a cause of action under the Structural Work Act. One of the allegations was that the absence of some type of “lateral stays, supports, shorings, or other mechanical contrivances” in the trench proximately caused the worker’s death. Defendants’ motion to dismiss the complaint, however, was premised on the belief that the trench was not a “structure” within the meaning of the Act. The supreme court adopted the appellate court’s phrasing of the sole issue before it as whether the decedent, at the time the trench collapsed on him, was working on or about a “ ‘house, building * * * or other structure’ ” within the meaning of section one. (53 Ill. 2d 137, 138, 290 N.E.2d 219, 220.) The supreme court held that the sewer system was an integral part of the building being constructed at the site and consequently found that the decedent had been working “on or about a structure.” The court went on to cite Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724, for the rule that “failure to provide scaffolding can be the basis for a cause of action under the Structural Work Act.” The court also cited Miller v. DeWitt, stating that the DeWitt decision “specifically approved the holding ° * 0 that shoring is within the purview of the Act and a cause of action may be based on the inadequacy of the shores provided.” 53 Ill. 2d 137, 139, 290 N.E.2d 219, 220.

In McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573, a man was fatally injured when a 20,000 pound metal pedestal fell on him as he was unloading it from a railroad car. The pedestals were to be transported to the site of a power generating facility being built approximately one-half mile away. A judgment was entered upon a jury verdict in favor of plaintiff. On appeal, the defendant argued, among other things, that the unloading of equipment was not an activity subject to the Structural Work Act. In rejecting this contention, the supreme court discussed the existence of a contract which indicated that the task of erecting machinery at the power station would necessitate the incidental tasks of unloading and storage. Further, the contract defined the premises of the construction as including all places contiguous to or in the vicinity of the place where the work was to be done. Accordingly, the court held that the unloading activity in question constituted “erection of any building or other structure” within the meaning of the Act. In addition to this discussion, the court cited testimony that a crane should have been used to hold the pedestals in place while the workers cut the metal pieces that secured them to the railroad car.

Like the situations in McNellis and Navlyt, the instant facts involve the failure to provide a support device. The crane mentioned in McNellis, if properly used, would have functioned as a support for materials, not workers. The shoring that was not provided in Navlyt likewise would have functioned as “stays” or “supports” rather than scaffolds. Therefore, even though McNellis and Navlyt were primarily concerned with another aspect of the Act, the reasoning of both cases supports plaintiff’s position. More directly on point is the DeWitt court’s recognition that “supports” and “stays” need not function as “scaffolds” to be within the scope of the Structural Work Act. This holding controls on the statutory construction issue involved in the pending case.

As a final comment, we emphasize that our decision does not broaden the existing coverage of the Act, despite defendants’ insinuation to the contrary. The scaffold cases will continue to be governed by the pertinent authorities previously discussed. When a person is injured by the failure of any support device the courts must determine whether the injury is directly related to the specific, extrahazardous risks that the Act was designed to prevent. Thus, if a person trips over a ladder rather than falls off of it, he probably will not be able to claim a Structural Work Act violation because his injury has no connection with the hazardous nature of the ladder. (See Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 371, 325 N.E.2d 607, 613.) Similarly, the worker who falls off steel pilings that are not meant to be scaffolds or other support devices does not state a claim under the Act. (Swendsen.) But where, as here, the injured party in the performance of his work is struck by unsupported trusses, he can recover if the jury determines from the evidence that he was proximately injured by the defendants’ failure to provide such supports in violation of the Act.

II

Defendants next argue that the trial court erroneously denied their motion for leave to amend their answer. They attempted to plead an affirmative defense, following the close of plaintiff’s case, based on section 5(a) of the Workmen’s Compensation Act. This section provides, in pertinent part:

“No common law or statutory right to recover damages from the employer # e for injury or death sustained by any employee while engaged in the line of his duty as such employee “ * * is available to any employee who is covered by the provisions of this Act * * (Ill. Rev. Stat. 1977, ch. 48, par. 138.5(a).)

The Workmen’s Compensation Act applies to the construction industry (Ill. Rev. Stat. 1979, ch. 48, par. 138.3); hence, plaintiff’s cause of action presumably would be defeated by defendants’ affirmative defense under section 5(a). The trial court, however, denied as untimely defendants’ motion for leave to plead the defense. Defendants now contend that this was an abuse of discretion because plaintiff had notice of the defense as early as 1978, when defendants raised the employment issue in their motion for judgment. Accordingly, defendants believe that plaintiff has waived his right to challenge their failure to plead the defense. We disagree.

There is no absolute right to amend pleadings; the timeliness of such a request is a discretionary determination by the trial court. (United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App. 3d 847, 387 N.E.2d 1272.) Under the circumstances of the instant case, we find no abuse of discretion. The trial court did consider that plaintiff was not “totally surprised” by the Workmen’s Compensation defense. We do not believe, however, that defendants can properly rely on plaintiff’s awareness of the potential defense as an excuse for their failure to affirmatively plead it. Hence, we reject their theory that plaintiff had the duty to challenge the sufficiency of their answer (which did not plead the defense) when defendants moved for judgment in April of 1978; there was no affirmative pleading for plaintiff to attack by a motion to strike. Although defendants raised the employment issue at that time, they never attempted to amend their answer before trial. It was not until after plaintiff had completed his case in chief that they first filed for leave to amend.

While the amendment of pleadings is to be liberally granted, we believe that the trial court carefully considered the circumstances in making its ruling. The record indicates that defense counsel had several opportunities to argue his position to the court outside of the jury’s presence. Thus, the trial court’s ultimate decision to deny defendants’ amendment, jury instruction, and special interrogatory on the employment issue is supported by the record and was not an abuse of discretion. Therefore, we will not disturb the court’s ruling on this issue.

In light of our holding, we need not consider whether defendant Walter’s twice-repeated statements that plaintiff was not his employee should be considered conclusively binding on him as a judicial admission.

Ill

Finally, defendants raise two alleged trial errors as grounds for reversal. First, they object to certain remarks that plaintiff’s counsel made in his closing argument. In discussing the reasonableness of the requested $83,000 in damages, counsel stated that he had tried many cases and that “this [$83,000] is a very low figure for an injury of this type * * Also, defendants object to plaintiff’s implication, made during his rebuttal, that the reason the defense attorney did not mention damages in his closing argument was because he knew “that is a reasonable figure.” Defendants contend that these remarks were improper and may have influenced the jury to return an excessive verdict.

We note that the above remarks were made in the context of a lengthy discussion of plaintiff’s injuries. While we do not believe that references to other claims are appropriate, counsel’s remarks to the effect that $83,000 was low for “this type” of case are not so damaging as to require reversal. Moreover, defendants failed to object to this comment, which may be viewed as a waiver. (Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 817, 364 N.E.2d 650.) Nor do we find that the brief reference to defense counsel’s failure to argue damages rises to the level of reversible error. Defendants elected to stand on the liability issue and refrain from arguing damages. In adopting this tactic, they incurred an attendant risk that the jury would find plaintiff’s unrebutted sum persuasive. Attorneys are accorded substantial latitude in their closing arguments (Goldstein v. Hertz Corp. (1973), 16 Ill. App. 3d 89, 305 N.E.2d 617), and a verdict will not be set aside on the basis of improper remarks unless they are so prejudicial as to fatally infect the jury’s decision. We conclude from our examination of the transcripts the challenged remarks fall short of the reversible error standard. See Patur v. Aetna Life & Casualty (1980), 90 Ill. App. 3d 464, 413 N.E.2d 65.

IV

Defendants’ last point of error involves the alleged impropriety of the court’s allowing Charles Shultz to testify for plaintiff. The basis of their objection is that they were deprived of the opportunity to depose him before trial. As a result, they contend, they were unfairly surprised by his expert testimony.

The record does not support this claim. On the Friday before the trial began, plaintiff’s counsel told the defense attorney that he might call Mr. Shultz to testify at trial. He had not considered hiring him before that time. The following Monday and Tuesday Shultz was out of town. On Wednesday, the third day of trial, plaintiff received word that Shultz was to undergo surgery and would not be available to testify after 2 o’clock that afternoon. Plaintiff consequently asked the court for permission to call Shultz as his expert witness. Defendant objected because he had not had the opportunity to depose him. Although the trial court then offered defense counsel time to interview Shultz before he testified, counsel declined.

In view of these circumstances, we cannot say that the trial court abused its discretion in allowing Shultz to testify. See Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1965), 73 Ill. App. 2d 5, 220 N.E.2d 43, aff’d (1969), 42 Ill. 2d 103, 245 N.E.2d 762; Burns v. West Chemical Products, Inc. (1973), 12 Ill. App. 3d 947, 956, 299 N.E.2d 455.

Additionally, we note that Shultz’s testimony regarding the industry’s safety standards was merely cumulative because two other witnesses had previously testified as to the custom and practice of supporting trusses with heavy lumber. Consequently, defendants were not surprised or prejudiced by the trial court’s decision to permit Shultz to testify.

For the foregoing reasons, we affirm the trial court’s judgment entered on the jury verdict against defendants in the amount of $83,232.50.

Affirmed.

SULLIVAN, P. J„ and MEJDA, J., concur.

       Plaintiff had suffered a loss of memory, at time of trial, because of a medical condition that was unrelated to his leg injuries. Accordingly, the trial court permitted defendant to introduce as evidence certain portions of plaintiffs deposition.

         A dictionary definition of scaffold is “a temporary platform used by workers in the construction, repair, or cleaning of a building.” (American Heritage Dictionary of the English Language 1157 (1969).) In comparison, two of the definitions of “support” are “to bear the weight of, especially from below,” and “to hold in position to prevent from falling, sinking, or slipping.” (American Heritage Dictionary, at 1293.) A definition of “stay" is “support or brace.” (American Heritage Dictionary, at 1260.) It is apparent that while a scaffold has a support function and a support may be used as a scaffold, the terms are not necessarily interchangeable.

       To avoid confusion, we will only use the term “scaffold” to indicate a platform or device used to support workers — its customary meaning. When referring to the terms enumerated in section one collectively, we adopt the generic phrase “device” or “support device.”

         In Bennett v. Musgrave (1970), 130 Ill. App. 2d 891, 266 N.E.2d 128, one of the few cases involving falling materials, the court held that a worker could recover for injuries suffered when a wrench fell from a scaffold and struck him. In so holding, the court rejected defendant’s argument that a wrench, as a tool, was not “material” within the meaning of the Act. Bennett, 130 Ill. App. 2d 891, 894-95, 266 N.E.2d 128, 131.

       In certain contexts, the employer’s immunity provision may not bar the injured party from bringing a Structural Work Act lawsuit against his employer. (See Sharp v. Gallagher (1981), 94 Ill. App. 3d 1128, 419 N.E.2d 443.) This exception to employer immunity, called the dual capacity doctrine, is discussed in the recent Illinois Supreme Court decision of McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 423 N.E.2d 876.


author: Mr. JUSTICE MEJDA

text:
    CHARLES WILLIS, d/b/a Lazarus Willis and Associates, Plaintiff-Appellant, v. OHIO CASUALTY COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-2522
    Opinion filed November 13, 1981.

      Lev & Sneckenberg, of Chicago (William J. Sneckenberg, of counsel), for appellant.
    Hollobow & Taslitz, of Chicago (Barry Kreisler, pro se, of counsel), for appellee Barry Kreisler.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

This action was commenced by plaintiff against defendants Barry Kreisler (Kreisler) and Ohio Casualty Company (Ohio Casualty) to recover damages for breach of contract. The circuit court granted Kreisler’s motion to dismiss counts III and IV of plaintiff’s complaint, thereby removing Kreisler from the action. The court also denied plaintiff’s subsequent motion for leave to file an additional count in quantum meruit against Kreisler. In this appeal, plaintiff contends that the trial court abused its discretion in; (1) dismissing counts III and IV of plaintiff’s complaint, and (2) denying plaintiff leave to file an additional count based on quantum meruit.

Plaintiff’s four-count complaint was filed on May 26,1978. Counts I and II named Ohio Casualty solely as defendant. Count III alleged breach of contract against Kreisler; and count IV alleged conspiracy against Ohio Casualty and Kreisler. By stipulation, all counts against Ohio Casualty were voluntarily dismissed by the plaintiff and are not presented for consideration in this appeal.

Counts III and IV of plaintiff’s complaint contain the following allegations:

Count III: In January 1977, plaintiff, a public fire claims adjuster, was employed by Kreisler to adjust a fire loss claim. The fire occurred at Kreisler’s property on January 15,1977. This employment agreement was memorialized in a writing and signed by defendant and plaintiff. Pursuant to this agreement, plaintiff agreed to assist in the adjustment of Kreisler’s claim for losses occasioned by the damage by fire to Kreisler’s property. For plaintiff’s services Kreisler agreed to assign to plaintiff an amount of 10 percent of the adjusted or settled fire loss claim recovered. Plaintiff performed all conditions precedent to the contract. At some time after June 1977, Kreisler received approximately $105,000 in settlement of his claim for loss from Ohio Casualty. Kreisler thereafter breached his contractual duty to the plaintiff by refusing to pay the 10 percent adjuster’s fee. As a result of this breach, plaintiff was damaged in the amount of about $10,500.

Count IV: Plaintiff alleges that Kreisler and Ohio Casualty conspired to deprive him of fees due under the employment contract by agreeing to omit plaintiff’s name from the settlement draft; that the custom in the insurance industry was to place the public adjuster’s name on the draft in order to insure that he would be paid for his services; and that such omission was an overt act designed by defendants to deprive him of payment under the contract. Plaintiff seeks punitive damages in the amount of $105,000, the total amount of the settlement draft.

It is undisputed that on August 14, 1978, the subject complaint was served upon Kreisler at his business address. The following day, August 15, Kreisler sent a letter by registered mail to plaintiff expressing his election to avoid their agreement pursuant to the Illinois act relating to certain agreements in connection with fire claims. Ill. Rev. Stat. 1977, ch. 29, par. 81.

On December 11, 1979, the trial court granted Kreisler’s motion to dismiss counts III and IV. Thereafter, on January 2,1980, plaintiff filed a motion for leave to file an amended count III alleging unjust enrichment against Kreisler. Then, on January 9, 1980, upon plaintiff’s motion, the trial court ordered that the previously styled “amended Count III” was to be “denoted and referred to as Count V.” Then, on March 25, 1980, plaintiff filed a motion for leave to file an “amended Count V” seeking a quantum meruit recovery against Kreisler.

Amended count V sets forth the following pertinent allegations: That subsequent to January 15, 1977, plaintiff performed service of adjusting the losses due to fire at Kreisler’s property; that these services were rendered pursuant to the request of Kreisler made on January 15, 1977; and that these services consisted of the evaluation and determination of the scope and extent of the fire damages sustained by Kreisler and negotiating and presenting Kreisler’s claim to Ohio Casualty. Plaintiff claims that the reasonable value of his services is $10,500, which Kreisler has refused to pay.

On August 21,1980, the trial court denied plaintiff’s motion to file his amended count V. On September 2, 1980, and September 19, 1980, the court denied plaintiff’s respective motions to vacate the order of August 21,1980. The record of the proceedings of September 19 indicates that the trial court denied leave to file the amended pleading as an exercise of discretion because the effect of the quantum meruit count was to circumvent the intent of the legislature set forth under the fire claims act. Ill. Rev. Stat. 1977, ch. 29, par. 81.

Opinion

Plaintiff challenges the trial court’s dismissal of counts III and IV of his complaint against Kreisler. Defendant contends initially that plaintiff waived any right to seek review of the dismissal order when he elected to file various amended complaints based upon different theories of law, instead of appealing the dismissal order. (Erickson v. Walsh (1973), 11 Ill. App. 3d 99, 296 N.E.2d 36.) Defendant concludes, therefore, that the dismissal order should not be considered as part of the record on appeal. We disagree.

While we recognize the general rule that a plaintiff waives his objection to an order sustaining a motion to strike when he abandons his complaint and files an amended complaint (see generally Fishel v. Givens (1977), 47 Ill. App. 3d 512, 362 N.E.2d 97; Field Surgical Associates, Ltd. v. Shadab (1978), 59 Ill. App. 3d 991, 376 N.E.2d 660), we do not believe this rule precludes review of the dismissal order in the instant case.

First, it is not the law in this State that a party abandons his original plea merely by filing an additional count. (Merker v. Belleville Distillery Co. (1905), 122 Ill. App. 326.) We do not find from the record in the instant case the plaintiff in substance sought to amend count III. On the contrary, the “Amended Count III” alleged a new and distinct theory of unjust enrichment and was essentially an additional count albeit its erroneous caption. Further, any confusion with respect to this court was cured by the trial court’s subsequent order restyling and redesignating the amended count as new “Count V.” Under these circumstances we find that the plaintiff in substance and effect merely filed an additional count and did not abandon stricken counts III or IV.

Moreover, we cannot apply principles of abandonment and waiver for plaintiff’s failure to appeal the order striking counts III and IV because this order was not a final and appealable order.

Under Supreme Court Rule 304(a), if multiple parties are involved in an action, an appeal may be taken from a final judgment as to one but fewer than all of the parties only if the trial court has made an express written finding that there is no just reason to delay enforcement or appeal. (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a).) At the time plaintiff’s counts III and IV were stricken by the trial court, defendant Ohio Casualty was still a party to the action. The subject order did not dispose of the remaining counts pending against this defendant, nor did the order contain an express finding that there was no just reason for plaintiff to delay appeal. Such being the case, the dismissal order was not a final and appealable order. Thus, for the above reasons we find that plaintiff did not waive his right to seek a review of the trial court’s order striking counts III and IV of plaintiff’s complaint.

We now turn to plaintiff’s contention that the trial court improperly dismissed counts III and IV of his complaint. The trial court dismissed these counts which were grounded upon an alleged contract as insufficient in law. Specifically, the trial court found that the alleged contract was unenforceable due to plaintiff’s “noncompliance” with “An Act relating to certain agreements in connection with fire insurance claims” (Ill. Rev. Stat. 1977, ch. 29, par. 81).

This act was enacted by the General Assembly in 1972 and established the right of avoidance of agreements for representation in fire damage claims by represented parties if such agreements are made within five days of a fire. Essentially the act provides that the represented party has the right to avoid such agreements, at his election, within 10 days of the making of the agreement, by notifying the representing party of such intent by certified or registered mail. This act further requires that:

“The person undertaking such representation of the claimant by such an agreement must, before or at the time of the agreement, furnish in writing the party with whom the agreement is made a copy of the agreement and the address or phone number at which the notice may be given, and obtain written acknowledgment of receipt of notice from the party represented. If he fails to do so, the 10 day period provided for in this Act does not commence to run until such agreement and address or phone number is furnished.” Ill. Rev. Stat. 1977, ch. 29, par. 81.

In distilling the record on appeal, we believe that the trial court’s dismissal of the plaintiff’s contract action was implicitly a determination that defendant timely avoided the contract for fire claims representation due to plaintiff’s “noncompliance” with the statute, in essence, a determination that plaintiff failed to comply with one or more of the several affirmative duties required of fire claims adjusters under this act.

Under the statute, the affirmative duties are threefold. First, the claims adjuster must provide the represented party, before or at the time of the agreement, a written copy of the agreement. Second, the claims adjuster must furnish in writing to the represented party, before or at the time of the agreement, the address and phone number at which notice may be sent. The third requirement is that the adjuster must “obtain written acknowledgment of receipt of notice from the party represented.” Ill. Rev. Stat. 1977, ch. 29, par. 81.

Plaintiff contends that he complied with these three requirements when he provided to defendant a written copy of the contract which contained his business address and phone number. Plaintiff urges that defendant’s signature upon the contract operated as written acknowledgment of receipt of notice from the represented party. It is plaintiff’s position that under the statute “notice” refers to notice to the represented party of (1) the time of the agreement, and (2) the business address and phone number where defendant could serve plaintiff with a letter stating his election to avoid the agreement. The defendant poses a different interpretation of this provision. It is defendant’s contention that the statute requires that the claims adjuster (1) notify the represented party of his right to avoid such contracts, and (2) obtain written acknowledgment of receipt of such notice from the party represented.

We are convinced that the statutory requirement of “notice” as it is used in this provision is ambiguous and therefore must be construed by this court. In construing an ambiguous statutory provision, courts are not controlled by the literal meaning of the relevant language but must consider and give primary effect to the spirit, intent and purpose of the enactment. (People v. Kezerian (1978), 63 Ill. App. 3d 610, 379 N.E.2d 1246.) In ascertaining legislative intent the court may look to the reason and necessity for the law, the evil to be remedied and the purpose to be obtained. (People ex rel. Moss v. Pate (1964), 30 Ill. 2d 271, 195 N.E.2d 641.) Where two or more constructions may be placed upon a statute, the court must select that construction which makes the statute both useful and logical. ((Yellow Equipment & Terminals, Inc. v. Lewis (1976), 35 Ill. App. 3d 875, 342 N.E.2d 426; People ex rel. Callahan v. Marshall Field & Co. (1980), 83 Ill. App. 3d 811, 404 N.E.2d 368.) In order to determine the legislative intent and purpose in the case of an ambiguous provision, the court may consider a subsequent amendment to the statute being construed. O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 408 N.E.2d 204; People v. Foy (1978), 61 Ill. App. 3d 137, 377 N.E.2d 1282.

In 1979, the General Assembly adopted Public Act 81-1126, section 1, which amended the fire claims representation statute, changing the language of the provision at issue. The above-quoted provision now reads: “The person undertaking the representation of the claimant by such an agreement must, at the time of the agreement, furnish the party with whom the agreement is made a copy of the agreement and the address to which the notice may be sent and a copy of this Act, and obtain written acknowledgment of receipt of such from the party represented.” (Emphasis added.) (Ill. Rev. Stat., 1980 Supp., ch. 29, par. 81.) The amended text became effective July 1,1980. There is now no question but that as of July 1,1980, the fire claims adjuster must provide the represented party with a copy of the act.

While an amendment of an unambiguous statute indicates a purpose to change the law, no such purpose is indicated by the mere fact of an amendment of an ambiguous provision. (O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 408 N.E.2d 204.) We feel that the purpose of this amendment was to clarify the ambiguity which existed as to what notice was to be given to represented parties under the statute.

“[W]hile courts are and should be cautious about adding words, as such, to a statute generally, they will not hesitate to read into the sense of some section or provision a qualifying or expanding expression plainly implied by the general context of the act, which has been palpably omitted and which is necessary to prevent the legislative purpose from failing in one of its material aspects.” (Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385, 402, 251 N.E.2d 253, 263, quoting People ex rel. Barrett v. Anderson, 398 Ill. 480, 485, 76 N.E.2d 773, 776.)

Here, we are convinced that the ambiguity in the 1975 version of the statute was through oversight by the legislature. In accord with the manifested expression of the legislative intent as evidenced in the amendment, we conclude that the term “notice” as discussed refers to notice of the right to avoid pursuant to the act. In our opinion the purpose of the statute was to protect a' homeowner or property owner, having recently experienced the trauma of a fire, from entering into imprudent contracts with claims adjusters while likely emotionally shaken and distraught. We feel that to effect this purpose the legislature intended that the represented party must be given notice of his right to avoid by the representing party. This construction, we believe, renders the statute both logical and useful in view of the potential unfair bargaining advantage of the claims adjuster over such fire loss victims, and considering the manifest legislative intent to eradicate this disparity.

Subsection 48(1)(i) of the Illinois Civil Practice Act provides for the involuntary dismissal of an action or for other appropriate relief based on the assertion of affirmative matter which does not appear on the face of the complaint. (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(i).) This subsection is limited by the basic rule that a motion to dismiss admits all well-pleaded facts but it does not admit conclusions of law nor conclusions of fact unsupported by allegations of specific fact upon which such conclusions rest. (Village of Niles v. City of Chicago (1980), 82 Ill. App. 3d 60, 401 N.E.2d 1235.) Under section 48 if the grounds for dismissal do not appear on the face of the pleadings attacked, the motion must be supported by affidavit. (Ill. Rev. Stat. 1979, ch. 110, par. 48(1).) The statute provides that if a material and genuine disputed question of fact is raised, the court may decide the motion on the affidavits and evidence offered by the parties; or, alternatively, the court may deny the motion without prejudice to the right to raise the subject matter of the motion by answer. Ill. Rev. Stat. 1979, ch. 110, par. 48(3); Mastroianni v. Curtis (1979), 78 Ill. App. 3d 97, 397 N.E.2d 56.

In the case before us, no evidence was taken and the case was decided upon the pleadings and affidavits of the respective parties. The plaintiff has not demonstrated, by way of pleadings or affidavit, that he obtained written acknowledgment of receipt of the notice from the defendant as required by the fire claims representation statute. (Ill. Rev. Stat. 1977, ch. 29, par. 81.) This being the case, we feel that the defendant effectively avoided the contract by its written notification of August 15, 1980. Therefore, the defendants’ motion to dismiss counts III and IV, predicated on the written contract, was properly granted.

Plaintiff next asserts that it was an abuse of judicial discretion for the trial court to deny his motion for leave to file an amended pleading in quantum meruit.

Generally, under the Civil Practice Act, the power to allow amendments should be freely exercised so that litigants may freely present then-causes of action; the most important question is whether amendment will be in furtherance of justice. (Ill. Rev. Stat. 1979, ch. 110, par. 46(3); Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 409 N.E.2d 336.) Amendment of defective pleadings should be permitted unless it is clear that the defect is not curable thereby. (Scala/O’Brien Porsche Audi, Inc. v. Volkswagen of America, Inc. (1980), 87 Ill. App. 3d 757, 410 N.E.2d 205.) The decision to allow amended pleadings is a matter of the sound discretion of the trial court and, absent manifest abuse of such discretion, will not be disturbed by the appellate court. Whildin v. Kovacs (1980), 82 Ill. App. 3d 1015, 403 N.E.2d 694.

The record in the instant case reveals that the trial court denied the plaintiff’s motion for leave to file an amended count V as a matter of judicial discretion essentially because the court found that the effect of the amended quantum meruit count was to circumvent the intent of the legislature set forth under the fire claims act. (Ill. Rev. Stat. 1977, ch. 29, par. 81.) Plaintiff maintains that even if the contract for representation is void and unenforceable as a matter of law, the interests of justice would require that a performing party be entitled to a quantum meruit recovery for services rendered. Plaintiff urges that the appellate court should be controlled by the holding in Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969, which permitted an attorney discharged at will a quantum meruit recovery from his former client where the contingent fee contracted for was unenforceable at law.

In Rhoades, our supreme court held essentially that where the attorney was not guilty of solicitation, but had been discharged without cause by his former client, in the interest of justice, such attorney should be entitled to a quantum meruit recovery of reasonable fees for services rendered before discharge. It is plaintiff’s position that here, the defendant’s election to avoid his agreement with the claims adjuster is closely aligned to the Rhoades situation in which the client exercised his implied-in-law right to discharge his attorney at will.

Defendant contends that Illinois courts should be guided by the city court of Rochester, New York, ruling in Parsky Funeral Home, Inc. v. Shapiro (1975), 83 Misc. 2d 566, 372 N.Y.S.2d 288. This decision denied a quantum meruit recovery to a funeral establishment for noncompliance with a statute requiring such establishments to furnish certain written statements to customers disclosing pricing information. Under the statute failure to furnish the required statement was punishable as a misdemean- or. The court would not enforce the contract made in violation of that statute even though one party had received the benefits of the agreement, nor would it allow a recovery under an implied contract or quantum meruit theory.

We are not convinced that the Parsky rule is, or should be, controlling in this case. We read this case to stand for the general proposition that contracts made in violation of the statute are not enforceable particularly where the statute was enacted for the protection of the public and where a violation thereof constitutes a crime. We believe that the Parsky court was motivated in its decision by its conclusion that a quantum meruit recovery by a violation of the particular statute would in effect serve to reduce or completely offset the financial effects of punitive fines imposed by the subject statute.

Moreover, the Parsky court analyzed the enforceability of a contract made in clear violation of a misdemeanor statute. (See N.Y. Public Health Law (McKinney 1977).) Failure to disclose pricing information, under this statute, constituted a punishable crime. In the instant case the statute is merely remedial in nature, and its operation could be waived by the represented party either at his election or by his failure to timely notify the claims adjuster of his election to avoid the contract. Such being the case, we do not find the Parsky rule suited to the Illinois statute considered here.

On the contrary we find the statute governing fire claims adjusters to be more in consonance with the Illinois consumer protection statutes as reflected, for example, in section 2B of the Consumer Fraud and Deceptive Business Practices Act. (Ill. Rev. Stat. 1979, ch. 121/2, par. 262B.) This statute permits a consumer to avoid certain sales contracts .within three days after entering into the contract of sale. Under this act, the buyer must return the merchandise, in its original condition, to the seller, in order to rescind. If return of the merchandise as required under the act is impractical or inequitable, the buyer must tender its reasonable value. Hurlbert v. Cottier (1978), 56 Ill. App. 3d 893, 372 N.E.2d 734.

Although we recognize that under the instant statute there is no such requirement that the represented party tender reasonable value of the adjuster’s services as a condition precedent to his right to avoid, we simply feel that section 2B evidences the general State policy with respect to the propriety of restitution in consumer transactions. In Rhoades, our supreme court observed that the client was a “consumer” of legal services, protected by the State policy protecting consumers. Likewise, we believe that the fire loss victim is a consumer in the same sense. The Rhoades case concluded that in the interest of justice, the client-consumer would be liable for the reasonable value of services rendered.

We find that the reasoning in Rhoades is applicable in this case. We do not believe that a quantum meruit recovery in this case would seriously impair the protection intended to be afforded by the statute to the class of consumers in the position of the defendant. We hold, in the interest of justice, and where, as in the instant case, there has been no allegation of fraud, deceit or unconscionable inducement, the plaintiff is entitled to assert a quantum meruit claim based on the reasonable value of services rendered at the request of the defendant. Accordingly, the order of the trial court dismissing counts III and IV of plaintiff’s complaint is affirmed; the order denying plaintiff leave to file an amended count V in quantum meruit is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed and remanded in part.

SULLIVAN, P. J., and WILSON, J., concur.


author: Mr. JUSTICE BARRY Mr. JUSTICE HEIPLE,

text:
    McCLURE ENGINEERING ASSOCIATES, INC., Plaintiff-Appellant, v. THE REUBEN DONNELLEY CORP., Defendant-Appellee.
    Third District
    No. 80-546
    Opinion filed November 19, 1981.
    — Rehearing denied December 18, 1981.
    HEIPLE, J., dissenting.
    Francis Van Hooreweghe, of Van Hooreweghe, Pack el & Thuline, of Moline, for appellant.

      Joel A. Haber, Alvin D. Meyers, Steven J. Teplinsky, and Glen T. Keys or, all of Chatz, Sugarman, Abrams, Haber & Fagel, of Chicago, and William H. Dailey, of Moline, for appellee.
   Mr. JUSTICE BARRY

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Rock Island County entered upon a motion for directed verdict at the close of plaintiff’s case. Plaintiff was awarded the sum of $271.20 and has appealed, claiming that the limitation on defendant’s liability contained in the parties’ contract is void as against public policy.

Plaintiff, McClure Engineering Associates, Inc. (McClure), is a professional engineering firm. Defendant, Reuben H. Donnelley Corporation (Donnelley), is a publisher of yellow pages for the telephone company. In 1975 and 1976, plaintiff contracted with defendant’s agent for the purchase of advertising space in the yellow pages of the succeeding years’ telephone directories for Geneseo, Illinois. In addition, in 1976 plaintiff contracted to purchase space in the 1977 telephone directory for Freeport, Illinois. The requested advertisements were omitted from the three directories. Donnelley tendered $271.20, the amount paid by McLure Engineering for the advertisements, pursuant to the following provisions which were contained in the contracts:

“The advertiser is expected to pay the rate as billed. The liability of the Telephone Company in connection with any error or omission in publication of, or failure to publish, any item of advertising in any issue of any directory, shall be limited to the charges for the publication in such issue of the item of advertising involved, excluding charges for cuts, engravings or electrotypes. The term ‘Telephone Company’ shall include any or all Telephone Companies involved in this transaction, the Selling Company, the Publishing Companies, or any representative of said company or companies.”

This suit followed. McClure Engineering complained that it suffered losses in excess of $60,000 as a result of Donnelley’s negligence in omitting the advertisements. The trial court, upon conclusion of McClure’s case, granted Donnelley’s motion for a directed verdict and entered judgment in the amount of $271.20. On appeal, plaintiff raises a single issue. That is, is the exculpatory clause contained in the parties’ contracts, which insulates defendant from liability for negligence, invalid as being contrary to public policy in Illinois?

Plaintiff urges this court to adopt the view espoused by courts in two sister jurisdictions wherein exculpatory clauses have been held to be void as a matter of public policy. Plaintiff cites Woodburn v. Northwestern Bell Telephone Co. (Iowa 1979), 275 N.W.2d 403, and Allen v. Michigan Bell Telephone Co. (1969), 18 Mich. App. 632, 171 N.W.2d 689, in support of its argument. Initially, we note, as defendant is quick to point out, that the Iowa court, in Woodburn, specifically ruled against plaintiff on the question presently before the court in this case. The Woodburn court remanded the cause to the trial court solely for resolution of the question of mutuality of assent in the formation of the contract — an issue which has not been raised in the instant case. Furthermore, the precedential value of the Michigan case, Allen, is diminished by the fact that the Michigan appellate court, upon second review, limited its holding concerning the enforceability of the exculpatory clause therein by stating that its earlier ruling on that issue was the law of the case. (Allen v. Michigan Bell Telephone Co. (1975), 61 Mich. App. 62, 65, 232 N.W.2d 302, 304.) Because the holdings of these cases are of, at best, questionable precedential value, we decline to embrace the opinions for the proposition advanced by plaintiff herein.

While the precise issue before this court has not received prior attention in the reviewing courts of Illinois, we believe that the general rules of law which guide the outcome of this case are fairly well established. Generally, Illinois adheres to the rule, in keeping with the principle of freedom of contract, that contractual limitations are valid and enforceable. (First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 417,388 N.E.2d 17, 20 (citing Schumann-Heink v. Folsom (1927), 328 Ill. 321, 159 N.E. 250); Pick Fisheries, Inc. v. Burns Electronic Security Services, Inc. (1976), 35 Ill. App. 3d 467, 342 N.E.2d 105; see also cases in Annot., 92 A.L.R.2d 917, 935-45 (1963), and A.L.R.2d Later Case Service 40-42 (1976).) In the absence of legislative directive to the contrary, an exculpatory clause generally will be held valid. The exception to this rule, thereby permitting the court to invalidate an exculpatory clause, obtains “only if a special social relationship of a semi-public nature is found to permeate the transaction between the parties.” (First Financial Insurance Co. (1979), 69 Ill. App. 3d 413, 418, 388 N.E.2d 17, 21.) Relationships such as employer-employee (Campbell v. Chicago, Rock Island & Pacific Ry. Co. (1910), 243 Ill. 620, 90 N.E. 1106) and public carrier-passenger (Checkley v. Illinois Central R.R. Co. (1913), 257 Ill. 491, 100 N.E. 942) are examples of these special social relationships.

Plaintiff attempts to place his relationship with defendant Donnelley into the category of special social relationships covered by the exception to the general rule based on several factors which, plaintiff contends, render defendant’s business activities a “public service.” Plaintiff’s argument necessarily proceeds from the premise that providers of public services may not escape liability for their own negligence through exculpatory provisions in their contracts. (57 Am. Jur. 2d Negligence §27 (1971).) As will be shown, we do not believe that the facts of the present case lend themselves to the conclusion that plaintiff urges us to reach.

Firstly, plaintiff contends that defendant’s business is largely a government-regulated monopoly. While the telephone business itself is subject to governmental regulation, defendant, as a private corporation engaged by the telephone company to publish its yellow pages, is not a government-regulated monopoly.

Secondly, plaintiff argues that McClure, as a professional association and subject to advertising limitations imposed by its code of professional ethics, requires defendant’s services as a “practical necessity.” We are unconvinced of the practical necessity of plaintiff’s yellow pages advertisements in the instant case, particularly when plaintiff was not even a resident of either of the communities in which the advertisements were omitted. It is apparent that plaintiff elected to advertise its services in neighboring communities so as to expand the reach of its offices located in East Moline and Rockford, Illinois. (Plaintiff does not complain that it was omitted from the directories of either of these cities. Therefore, we assume that the yellow pages properly included plaintiff’s advertisements for the cities where its offices operated.) The opportunity to procure advertising outside of the community serviced by any particular directory for which a business number has been assigned is a luxury offered by the telephone company for those who desire such advertising. Sound business judgment — not “practical necessity” — dictates whether or not any particular customer should take advantage of the additional advertising opportunity.

Plaintiff’s third argument is that defendant is a public service because of the “extent to which defendant holds itself out to the public.” As we have stated earlier, we do not believe that the quasi-public character of the telephone company itself is properly attributable to the defendant publishing company.

Finally, plaintiff argues that the relative bargaining power of the parties is so imbalanced as to render the standardized contracts adhesive and unenforceable. Disparity in bargaining positions is one factor to consider in determining whether an exculpatory provision is unconscionable. (First Financial Insurance Co., 69 Ill. App. 3d 413, 419, 388 N.E.2d 17, 21-22 (citing Cerny Pickas & Co. v. C. R. Jahn Co. (1952), 347 Ill. App. 379, 106 N.E.2d 828).) Standing alone, however, disparity in bargaining power will not render the provision unenforceable. In the present case, plaintiff does not allege that he attempted to negotiate the contracts in question. In fact, plaintiff denied having even read the terms of his contracts with defendant’s agent. On these facts, it is difficult to conclude that the alleged disparity in bargaining positions has been demonstrated to have been unconscionable.

Not having found that a special relationship of a semi-public nature existed between the parties, we hold that the agreement between plaintiff engineering firm and defendant publisher of yellow pages, whereby the publisher’s liability for negligence is limited to the amount paid for its services, is not void as against the public policy of this State. Plaintiff’s recovery was properly limited to $271.20 upon defendant’s motion in the trial court.

Judgment affirmed.

ALLOY, J., concurs.

Mr. JUSTICE HEIPLE,

dissenting:

Reuben H. Donnelley Corp., as publisher of the telephone directory, solicited listings from McClure Engineering Corp., a professional engineering firm.- McClure bought the space and paid the contract price of $271.20. The contract offered by Donnelley contained an exculpatory clause which referred to Donnelley as the “Telephone Company” and limited its liability to a refund of the publication charges in the event of any error, omission, or failure to publish. Donnelley then failed to publish the listing contracted for, and McClure sued for consequential damages for lost business, claiming that the exculpatory clause was a violation of public policy. At trial, at the close of the plaintiff’s case, the trial court granted defendant’s motion for directed verdict, and entered a judgment in favor of plaintiff for $271.20 representing the price paid for the advertising without regard to consequential damages. Plaintiff appeals, and this court has chosen to affirm. I disagree.

In this situation, the telephone company and the publisher of the telephone book are, for all practical purposes, one. The service offered is a protected monopoly service. There is no competing telephone company, and there is no competing telephone directory. Today’s business climate depends on the telephone. Consumers of services are urged through repetitive advertising to use the yellow pages and “Let your fingers do the walking.” This court could and should take judicial notice of the business necessity for professional corporations such as McClure Engineering to have a telephone and to carry advertising in the yellow pages. Given this recognition, there is no equality of bargaining position. It is like the story of the chicken and the pig who were asked to donate ham and eggs for a dinner. While the cost of the donation was a minor matter to the chicken, it was a matter of life and death to the pig. So it is with Donnelley and McClure. Donnelley can well afford to lose $271.20 that it is not entitled to for not running McClure’s listing. But McClure Engineering cannot afford to lose the lost business occasioned by the dropped listing in the yellow pages.

Numerous treatises and articles have discussed contractual clauses which limit liability. Some are upheld. Some are not. In determining the validity of such clauses, it is important to consider whether one of the parties is charged with a public service. It is also important to consider whether there is equality of disparity of bargaining power. Furthermore, the extent of the limitation and its reasonableness should also be considered. In the case at hand, defendant is performing a public monopoly service. There is a complete disparity of bargaining power. The exculpatory clause totally and absolutely bars any liability on the part of the defendant. To merely be obligated to refund the precollected contract price is to be liable for nothing. Under the clause in question, defendant cannot be held to pay even 10 cents for error, omission, or failure to publish. All they have to do is refund the amount paid. Thus, they merely obligate themselves to return what was not theirs anyway.

Clauses designed to protect contracting parties from the consequences of their negligence should be carefully scrutinized. I believe that the instant clause should be held void as against public policy. Accordingly, I dissent.