author: JUSTICE JOHNSON

text:
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General of Illinois, Plaintiff-Appellant, v. COLORADO CITY LOT OWNERS AND TAXPAYERS ASSOCIATION et al., Defendants—(Mark P. Einstein, Defendant-Appellee).
    First District (4th Division)
    No. 82—2133
    Opinion filed November 17, 1983.
    Rehearing denied December 22, 1983.
    Neil F. Hartigan, Attorney General, of Springfield (Kathleen Hogan Morrison, Assistant Attorney General, of counsel), for appellant.
    Mark P. Einstein, of Oradell, New Jersey, for appellee, pro se.

   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Tyrone C. Fahner, Illinois Attorney General, appeals a decision of the trial court which denied his petition for an order holding defendant, Mark P. Einstein, in contempt. The Attorney General presents the following issues for review: (1) whether the trial court erred in modifying the terms of a preexisting consent decree; (2) whether the court misinterpreted a provision of the Consumer Fraud and Deceptive Business Practices Act; and (3) whether the court erred in denying his petition for a rule to show cause and motion to suspend assurance of voluntary compliance proceedings.

We affirm.

The present appeal arises from and is a continuation of a prior appeal involving the same parties. In People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 438 N.E.2d 1273, this court affirmed the trial court’s finding that defendant Einstein had violated a consent decree and was therefore in contempt of court. We reduced defendant’s fine from $4,500 to $500 because defendant did not knowingly waive his right to a jury trial. 108 Ill. App. 3d 266, 278.

On February 2, 1979, a consent decree was entered between the Attorney General and Einstein. The decree alleged that Einstein had solicited property owners of land located in Colorado City, Colorado, who resided in the Chicago area, for the purpose of conducting litigation against the owner and developer of Colorado City. It further alleged that Einstein made certain misrepresentations to the lot owners. Einstein was permanently enjoined from organizing any business entity for the purpose of soliciting litigants for a lawsuit against the developer of Colorado City or any other business entity without entering into an assurance of voluntary compliance with the Attorney General.

On September 29, 1981, Beinstein filed a petition for a rule to show cause why the Attorney General and William Shapiro, an assistant Attorney General, should not be held in contempt of court. Einstein alleged that the'1979 consent decree required that he enter into an assurance of voluntary compliance before performing certain activities on behalf of Illinois consumers. He stated that on May 25, 1981, he had requested an assurance for a subdivision known as Palm Coast, Florida. But after meetings and the exchange of correspondence, an assurance had not been executed. Einstein asked that the Attorney General be restrained from refusing to enter into an assurance of voluntary compliance.

On October 30, 1981, Einstein’s petition was dismissed because the parties had entered into an assurance of voluntary compliance.

In May 1982, Einstein requested an assurance, which would be a carbon copy of the Palm Coast assurance, for Rio communities, a subdivision in New Mexico, and he also requested assurances for other subdivisions.

On June 3, 1982, the Attorney General filed a petition for a rule to show cause why Einstein should not be held in contempt of court. The petition alleged that Einstein violated the consent decree by the following acts:

(1) Einstein controlled the management of the Colorado City Lot Owners and Taxpayers Association.
(2) Einstein proposed a settlement for Colorado City and Co-chiti Lake property owners to the defendant in two Federal lawsuits without the knowledge of John Bowlus, attorney for plaintiff property owners.
(3) Einstein tried to determine litigation strategy.
(4) In various letters Einstein or officers of the lot owners associations criticized Bowlus’ handling of the Federal lawsuit, solicited money for another attorney, and solicited money for Einstein.
(5) Einstein caused the lot owners’ association to transfer $25,000 in association funds to him for his legal expenses.

On June 3, 1982, the Attorney General also filed a motion to suspend assurance of voluntary compliance proceedings. Plaintiff wanted to suspend negotiations with Einstein because of the latter’s alleged violations of the consent decree. Einstein responded with a motion to strike and dismiss the petition for rule to show cause and a motion to vacate the consent decree. On June 30, 1982, the trial court denied all motions and on its own motion modified the consent decree by deleting sections C and D of article V which provided as follows:

“C. That Defendant MARK P. EINSTEIN is permanently enjoined and restrained from organizing, reorganizing, incorporating, or establishing any non-incorporated association, partnership, or any other business entity under any other name or legal structure for the purpose of soliciting litigants or potential litigants for a lawsuit, or as an employee or agent of any of the aforementioned entities, without entering into an ASSURANCE OF VOLUNTARY COMPLIANCE with Consumer Fraud Division of the ILLINOIS ATTORNEY GENERAL’S office.
D. That Defendant EINSTEIN is permanently enjoined and restrained from any organizational role in a lot owner’s association as set forth in ‘C’ above, where he might solicit, collect, negotiate, disburse, or deposit funds, on behalf of that aforementioned group or entity, as opposed to his acting as an agent or employee of that entity.”

On July 21, 1982, the trial court denied plaintiff’s motion to reconsider and motion for stay. Plaintiff appeals.

The first issue raised by plaintiff is whether the trial court erred in modifying the terms of the consent decree. Plaintiff argues that the trial court’s deletion of sections C and D of article V gutted the injunction section of its enforcement threat. The trial court mistakenly concluded that there had been a mutual abandonment of the consent decree, but, according to plaintiff, only Einstein wanted to abandon the agreement. Plaintiff insists that no basis exists in the record for modifying the decree. Plaintiff described the trial court as frustrated with a vehement legal dispute between the parties, as willing to accept Einstein’s outrageous pleading, and as being “disinterested and disinclined” in presiding over a hearing based upon “powder puff” pleadings. Finally, plaintiff contends that the consent decree is conclusive upon the parties as originally executed and should be enforced as written.

In his brief, plaintiff concedes that the trial court had jurisdiction and power to modify the consent decree injunction, but argues there was not a sufficient basis in the record to support the action taken by the court. We disagree.

At a hearing on June 30, 1982, the trial judge remarked that he had not only reviewed the pleading in the case, he had also reviewed his notes and selective transcripts of proceedings between the parties in the past years. The judge stated that it was not unreasonable for him to assume that at the time the consent decree was executed, both sides were satisfied with it. The trial court then commented as follows:

“A consent decree, it should be kept in mind, is not a judgment of any court; it’s an agreement between the parties which is negotiated and executed without court involvement and which is then memorialized in a court-signed decree. It must be kept in mind that a consent decree is the product of the parties and not the product of the court. For reasons that I have never fully appreciated, Judge Cohen, who signed the consent decree, permitted the consent decree to recite continuing jurisdiction in the court to enforce, police, or overview future compliance with the decree.
The array of pleadings now before the court and which I have just recited stand for only one proposition. Collectively viewed, they stand for the proposition that both parties seek to repudiate the consent decree’s direction that future Einstein activities in Illinois must be undertaken under terms of an Assurance of Voluntary Compliance. The Attorney General manifests this intent to repudiate the consent decree by taking the position that the consent decree does not impose an affirmative duty on him to enter into an Assurance of Voluntary Compliance with Einstein for each new Illinois venture involving land fraud which Mr. Einstein seeks to become involved in. *** Thus, the Attorney General is saying that an Assurance of Voluntary Compliance will be tendered to Mr. Einstein when, in his unilateral judgment, such is, quote, ‘appropriate,’ end quote, and is, quote, ‘in the public interest, ’ end quote.”

The trial judge reiterated remarks he made at a hearing on September 29, 1981, involving a Palm Coast assurance of voluntary compliance. The court commented as follows:

“ T am not going to turn this court into a forum for the ongoing dialogue between Mr. Einstein and Mr. Fahner. The consent decree is something that evidently the Attorney General’s office felt had some value. If it has no value, I will be happy to walk away from it. If the Attorney General wants to alleviate himself of the burden of negotiating with this man for an Assurance of Voluntary Compliance, let’s all walk away from the consent decree and allow Mr. Einstein to have the rights of any other citizen in this country.’ Continuing, I say, ‘When the Attorney General can, on his own, develop some facts and proofs and information that relate to Mr. Einstein’s wrongful conduct in Illinois, then let the Attorney General bring an appropriate new case instead of hanging on to this old consent decree.’ ”

The trial court then continued as follows:

“I cite all of this by way of example that it cannot be lost to the Attorney General nor to anyone that has monitored this case in this courtroom what my views as to the appropriate function of the Assurance of Voluntary Compliance were.
From these comments it’s apparent that I do not share the Attorney General’s belief that his office can, by mere exercise of whimsey, decide to grant or deny an Assurance of Voluntary Compliance to Einstein.
As for Mr. Einstein, his papers on file also indicate his frustration with the Assurance of Voluntary Compliance procedure imposed under the consent decree. Einstein was once held in contempt by this court for Illinois dealings without an Assurance of Voluntary Compliance. He asks for relief from future AVC requirements because of what he perceives to be the hurdles, delays, and ever-widening demands which the Attorney General seeks to impose on him at each successive AVC request.”

The trial court went on to say:

“I am unwilling to void the consent decree which Mr. Einstein knowingly and voluntarily entered into. I am unwilling to conduct a hearing on the circumstances of an agreement which neither I nor any member of the Circuit Court had anything to do with. ***.
To my view both Mr. Einstein and the Attorney General of Illinois seek to use this court as their official sounding board to unload their real and imagined grievances against one another. Both are anxious to thrust the court into full-scale hearings as to why one is unhappy with the other. Both have yet to present this court with anything that approximates a legitimate and serious justiceable dispute.
In the past and on the record I have referred to these ongoing spats as ‘madness’ and as a ‘circus.’ If these characterizations reflect one thing, they reflect my restraint when I speak from the Bench. To say that I am disinterested and disinclined to preside over a hearing on the powder-puff allegations which each side here seeks to establish is to state the fact mildly. The Attorney General has yet to allege a single citizen-initiated complaint against Mr. Einstein in my presence. ***' If those who negotiated for the terms of the consent decree seek to disavow it, there certainly is no reason for the court to strain to keep it viable. Illinois cases are unanimous in their characterization of the consent decree as nothing more than an agreement or a contract between the parties, and Illinois contract law permits mutual abandonment of a prior agreement.
The Attorney General’s twice stated position that he cannot be compelled to enter into an AVC with the likes of Einstein is easily accommodated by striking Paragraphs C and D of Article 5 of the February 2, 1979, consent decree. So, also, Mr. Einstein’s desire to repudiate the entire consent decree to get out from under the oppressive and dilatory tactics of the Attorney General in negotiating a new AVC on the undertakings is also easily accommodated by striking Paragraphs C and D of Article 5 of the consent decree. The consent decree, then, so modified, continues to have impact on the parties as to the Colorado City undertakings.
While Article 5, Paragraphs C and D, were in full force and effect, the Attorney General and Mr. Einstein executed Assurances of Voluntary Compliance for Einstein’s activities regarding Cochiti Lake, New Mexico; Rotondo, Florida; and Palm Coast, Florida. Those three are in addition to the AVC which covers Colorado City. Those AVCs continue in effect and are not impacted by today’s modification.”

A consent judgment is merely a recitation of the settlement agreement between the parties. Like any other agreement, the law of contract controls its interpretation, and its meaning should be determined by the language chosen by the parties. (Clark v. Standard Life & Accident Insurance Co. (1979), 68 Ill. App. 3d 977, 983, 386 N.E.2d 890, 896.) In the instant case, the consent decree provided that the circuit court retain jurisdiction so that the parties might apply “for such further orders and directions as may be necessary or appropriate for the construction or carrying out of this Order, for the modification of any of the provisions thereof, for the enforcement of compliance therewith, and for punishment of any violation ***.” Thus, the consent decree by its own terms provided for modification of its provisions. The trial court presided over the proceedings which led to the first appeal between these two parties and was thoroughly familiar with the continuing controversies between them and the law of the case. In our opinion, the trial court did not abuse its discretion in modifying the provisions of the decree.

Plaintiff next argues that the trial court misinterpreted section 6.1 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1979, ch. 121½, par. 266.1), which provides as follows:

“In the administration of this Act, the Attorney General may accept an Assurance of Voluntary Compliance with respect to any method, act or practice deemed to be violative of the Act from any person who has engaged in, is engaging in, or was about to engage in such method, act or practice. Evidence of a violation of an Assurance of Voluntary Compliance shall be prima facie evidence of a violation of Section 2 in any subsequent proceeding brought by the Attorney General against the alleged violator.”

Plaintiff suggests that he is not required to tender an assurance to Einstein when requested. He claims that he did not withhold an assurance from Einstein but only insisted on mutually acceptable terms.

As stated above, the law of contract controls the interpretation of a consent judgment. (Clark v. Standard Life & Accident Insurance Co. (1979), 68 Ill. App. 3d 977, 983, 386 N.E.2d 890, 896.) Consideration is a basic element for the existence of a contract. Any act or promise which is of benefit to one party or disadvantage to the other is a sufficient consideration to support a contract. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 330, 371 N.E.2d 634, 639.) In section C of article V of the consent decree, Einstein agreed to be permanently enjoined from certain activities unless he first entered into an assurance of voluntary compliance with the Attorney General. The latter’s implied promise to tender an assurance of voluntary compliance was consideration for Einstein’s promise not to perform certain activities in the absence of an assurance. Therefore, we hold that the trial court properly determined that the Attorney General was required under the consent decree to tender an assurance to Einstein upon the latter’s request.

Finally, plaintiff argues that the trial court erred in denying the petition for rule to show cause and motion to suspend assurance of voluntary compliance proceedings. Sections A, B and E of article V of the consent decree provide as follows:

“A. That Defendant MARK R EINSTEIN is permanently enjoined and restrained from acting directly or indirectly, or through his agents, attorney or attorneys, from controlling the management, affairs and conduct of the Colorado City Lot Owners and Tax Payers Association.
B. That Defendant MARK P. EINSTEIN is permanently enjoined and restrained from organizing, reorganizing, incorporating, or establishing any non-incorporated association, partnership, or any other business entity under any other name or legal structure for the purpose of soliciting litigants or potential litigants for a lawsuit against Great Western Cities Colorado City Development. * * *
E. That Defendant MARK P. EINSTEIN is permanently enjoined and restrained from taking any action of any nature whatsoever relating to any Colorado City Lot Owners and Tax Payers Association funds, including depositing additional funds or withdrawing or transferring same.”

Plaintiff alleged that Einstein violated these provisions of the consent decree by (1) attempting to and in fact controlling the management, affairs and conduct of the Colorado City Lot Owners and Taxpayers Association; (2) soliciting funds from lot owner associations in which he has an organizational role; and (3) causing the Colorado City Lot Owners and Taxpayers Association, as well as the Cochiti Lake Sublessees Association, to withdraw and/or transfer $25,000 in association funds in order to pay Einstein’s personal legal expenses. Plaintiff submitted numerous exhibits in support of his motion including an affidavit of John Bowlus, attorney for a lot owners association, and letters mailed by Einstein to lot owners. According to plaintiff, the trial court should not have denied the petition for a rule unless it clearly appeared that no set of facts could be proved under the pleading which would warrant the relief requested. Plaintiff contends that the trial court erred in denying the petition, particularly without hearing argument, because the petition set forth violations of the consent decree which warranted an additional contempt finding.

We reject plaintiff’s contentions. At the hearing to reconsider on July 21,1982, the trial court stated as follows:

“As a citizen, Einstein has the right to free speech and free assembly, and those rights are restricted only by the consent decree. To my view the purpose of the consent decree was to secure for the citizens of Illinois control over Mr. Einstein’s conduct and effective tools to audit his Illinois presentations. The consent decree does not give rise to a right in the Attorney General to exercise prior restraint on Einstein’s First Amendment rights.
If Mark Einstein’s Illinois conduct is abusive, it must be abusive in the meeting halls and in the organizational meetings where he seeks to solicit support from unwary Illinois citizens. It’s not sufficient that the abuse that’s brought here be merely an abuse which is conjured up in the minds of the Illinois Attorney General or his staff. That’s what I have continually resisted.
If Mark Einstein’s performance in his organizational efforts can be documented as being opposed to the best interests of the citizens of Illinois, then that should be easily documented and readily brought to the Court. The plethora of consent decree contempt proceedings that have been initiated are replete with an assortment of allegations against Mr. Einstein’s conduct; but until this morning, I’ve never been tendered nor have I ever heard of or read a citizen-oriented, a citizen-offered complaint. That’s the point that I’ve tried to make throughout. * * *
The dispute between the members of the association and their new attorneys or their old attorneys is of no concern whatsoever to this Court or to anyone else until the members of that association rise up and complain that the conduct of Mr. Einstein is detrimental to their interests as Illinois citizens. To my view, that then would rise to a level of a matter that should be brought to the Court as a consent decree matter. Nothing like that has ever happened here, that’s why I continually view the Attorney General’s efforts here as a misapplication of his appropriate role under the consent decree. ***. * * *
The reason I didn’t allow oral argument the last time we were together was because I had a wide assortment of motions that morning on this particular case, all of which were many pages long, all of which I believed fully aired and fully ventilated the competing positions of the parties, all of which I read. And I came to the bench that morning fully cognizant of the range of disputes that the competing parties were determined to place before me.
Underlying all of that was my belief held then and my belief held now that the Attorney General and I viewed the consent decree from essentially different positions and that this ongoing dialogue between the Court and the Attorney General was serving neither his office nor this Court any good purpose and that it was best to move on to take a step that I thought was called for on the basis of the proceedings that had been ongoing here since the first contempt proceeding and find out what does the consent decree mean.”

In our opinion, the trial judge did not abuse his discretion in not allowing oral argument on the petition for a rule to show cause because, as he himself stated, he had read all the pleadings which “fully ventilated the competing positions of the parties.”

Further, we hold that the trial judge did not err in denying the petition for a rule to show cause. He reviewed the pleadings and exhibits and determined that the allegations in the petition did not establish a violation of the consent decree. We cannot say that this determination is against the manifest weight of the evidence.

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

Affirmed.

LINN and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE PER.LIN

license: Public Domain

text:
    UNITED CONSUMERS CLUB, INC., Plaintiff-Appellant, v. ATTORNEY GENERAL OF THE STATE OF ILLINOIS, Defendant-Appellee.
    First District (2nd Division)
    No. 82—969
    Opinion filed November 8, 1983.
    Rehearing denied December 13, 1983.

      Gilbert, Shapiro & Richman, of Chicago (Howard E. Gilbert and Michael D. Richman, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (James C. Spoeri and Don Townsend, Assistant Attorneys General, of counsel), for appellee.
   JUSTICE PER.LIN

delivered the opinion of the court:

On August 28, 1980, defendant, the Attorney General of Illinois, adopted comprehensive rules regulating the operation of buyers clubs within Illinois. (4 Ill. Reg., No. 37, at 567-96 (1980).) The Attorney General based his authority to issue these rules on section 4 of the Consumer Fraud and Deceptive Business Practices Act (the Act), which provides:

“To accomplish the objectives and to carry out the duties prescribed by this Act, the Attorney General, in addition to other powers conferred upon him by this Act, may issue subpoenas to any person, administer an oath or affirmation to any person, conduct hearings in aid of any investigation or inquiry, prescribe such forms and promulgate such rules and regulations as may be necessary, which rules and regulations shall have the force of law.” Ill. Rev. Stat. 1981, ch. 121½, par. 264.

A violation of the Buyers Club Rules “constitutes an unfair method of competition and an unfair or deceptive act or practice within the meaning of Section 2 of the *** Act [Ill. Rev. Stat. 1981, ch. 121½, par. 262] subject to the penalties contained therein.” Rule 108, 4 Ill. Reg., No. 37, at 572-73 (1980).

The Rules were made effective October 1, 1980 (4 Ill. Reg., No. 37, at 554 (1980).) On the same date, plaintiff, United Consumers Club, Inc., a corporation which derives its principal source of income from the sale of memberships in buyers clubs, filed an action in the circuit court seeking declaratory and injunctive relief against the Rules. Plaintiff claimed, inter alia, that the Attorney General has no power to issue binding substantive rules and regulations under section 4 of the Act, that the Rules unconstitutionally impair the obligation of contracts and that the Act unlawfully delegates legislative authority to the Attorney General. The parties thereafter filed cross motions for summary judgment on these issues.

In a final judgment order entered on March 26, 1982, the circuit court found that the Attorney General has authority under section 4 of the Act to promulgate binding substantive rules and regulations, that the Rules do not on their face unconstitutionally impair the obligation of contracts and that the Act contains a lawful delegation of legislative authority. Consistent with these findings, the court denied plaintiff’s motion for summary judgment and granted defendant’s motion for summary judgment. The court reserved ruling on the other issues presented in plaintiff’s complaint, including the question as to whether the Attorney General exceeded his statutory authority in promulgating individual Buyers Club Rules. Plaintiff has appealed. Pursuant to an agreed order, the enforcement of the Rules has been stayed pending disposition of the appeal.

I

Plaintiff initially contends that section 4 of the Consumer Fraud and Deceptive Business Practices Act does not confer upon the Attorney General authority to promulgate binding substantive rules and regulations. In considering this contention, it is essential to recognize the fundamental distinction Professor Davis has articulated between legislative and interpretative rules: “A legislative rule is the product of an exercise of delegated legislative power to make law through rules. An interpretative rule is any rule an agency issues without exercising delegated legislative power to make law through rules.” (2 K. Davis, Administrative Law Treatise sec. 7:8, at 36 (2d ed. 1979).) In Joseph v. United States Civil Service Com. (D.C. Cir. 1977), 554 F. 2d 1140, the court elaborated upon this distinction:

“Interpretative rules may be substantive in the sense of addressing a substantive rather than procedural issue of law and legislative rules may be procedural. The relevant distinction between legislative and interpretative or any other nonlegisla-tive rules is not the nature of the questions they address but the authority and intent with which they are issued and the resulting effect on the power of a court to depart from the decision embodied in the rule.” 554 F.2d 1140,1153 n.24.
“Legislative rules have the full force of law and are binding on a court subject only to review under an arbitrary and capricious standard. Interpretative rules do not have the force of law and even though courts often defer to an agency’s interpretative rule they are always free to choose otherwise.” 554 F.2d 1140, 1154 n.26.

Section 4 of the Consumer Fraud and Deceptive Business Practices Act provides in pertinent part that “[t]o accomplish the objectives and to carry out the duties prescribed by this Act, the Attorney General *** may *** promulgate such rules and regulations as may be necessary, which rules and regulations shall have the force of law." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 121½, par. 264.) In light of this explicit statutory language, it is clear that rules and regulations promulgated by the Attorney General under section 4 are legislative and thus are binding on the courts. See General Electric Co. v. Gilbert (1976), 429 U.S. 125, 141, 50 L. Ed. 2d 343, 357, 97 S. Ct. 401, 410-11, where the Supreme Court stated that administrative regulations which Congress has declared shall have the force of law are legally binding.

Plaintiff, however, points out that the Attorney General’s authority to adopt rules and regulations having the force of law appears in a section of the Act which also confers authority to issue subpoenas, administer an oath or affirmation, conduct investigations and inquiries, hold hearings and prescribe forms. It is plaintiff’s position that the Attorney General’s rulemaking authority under section 4 is limited to the promulgation of procedural rules implementing his investigatory and subpoena powers. We cannot agree.

Whether section 4 invests the Attorney General with substantive rulemaking authority presents an issue of first impression in Illinois. We note, however, that five States have statutory provisions virtually identical to section 4 of the Illinois Act. (Iowa Code Ann., sec. 714.16 (West 1979); N.J. Rev. Stat. sec. 56:8 — 4 (1964); N.D. Cent. Code sec. 51 — 15—05 (1982); S.C. Code Ann. sec. 39 — 5—80 (Law. Co-op. 1977); S.D. Comp. Laws Ann. sec. 37 — 24—14 (1977).) Our research discloses that in only one of these jurisdictions, New Jersey, has the State attorney general promulgated substantive rules and regulations. His authority to adopt such rules was sustained by the New Jersey Supreme Court in Fenwick v. Kay American Jeep, Inc. (1977), 72 N.J. 372, 371 A.2d 13.

In Fenwick, an advertising agency challenged the validity of an administrative regulation which makes it an unlawful motor vehicle advertising practice to fail to disclose the bona fide odometer reading in an advertisement for the sale of a used automobile. The practice is deemed unlawful without regard to the intent of the advertiser. In reviewing this regulation, the Supreme Court of New Jersey, noting that the Consumer Fraud Act was passed in response to widespread complaints about selling practices which victimized consumers, stated:

“The purpose of the Act was to prevent deception, fraud or falsity, whether by acts of commission or omission, in connection with the sale and advertisement of merchandise and real estate. To accomplish the objectives of the Act, the Attorney General is empowered to promulgate such rules and regulations as might be necessary. N.J.S.A. 56:8 — 4.
The administrative regulations adopted pursuant to the Act spell out numerous selling or advertising practices in particular areas of consumer sales that are either required or prohibited. [Citation.] With regard to motor vehicle advertising practices, one of the proscribed practices is the failure in a price advertisement of a used motor vehicle to disclose the bona fide odometer reading thereof.” 72 N.J. 372, 376-77, 371 A.2d 13, 15.

The court rejected the advertising agency’s argument that the failure to include the mileage in each sales advertisement was at most the omission of a material fact and would not be an unlawful practice unless knowledge and intent were shown:

“However, this argument overlooks the power of the Attorney General to adopt rules to further the purpose of the act to prevent fraud and other deceptive practices. When a used car is advertised for sale "without indicating its mileage there is a substantial possibility that a prospective purchaser would be misled by assuming the vehicle has been driven an average number of miles for its model year whereas in fact the car may have been driven a far greater number of miles. The regulation here adopted by the Attorney General has the effect of preventing the possibility of such deception if strictly enforced without regard to the intent of the advertiser. It therefore is within the broad rule-making power conferred by the statute on the Attorney General.” 72 N.J., 372, 378, 371 A.2d 13,16.

See also Levin v. Lewis (1981), 179 N.J. Super 193, 200, 431 A.2d 157, 161, where the New Jersey Superior Court, Appellate Division, held that “[t]he Consumer Fraud Act should be construed liberally in favor of protecting consumers as well as construed to confer upon the Attorney General the broadest kind of power to act in the interest of the consumer public.”

We agree with the reasoning of the New Jersey Supreme Court and find that the same considerations which led that court to sustain the New Jersey Attorney General’s substantive rulemaking authority obtain here. In discussing the nature of the Consumer Fraud and Deceptive Business Practices Act, our supreme court has stated:

“The Act is a regulatory and remedial enactment intended to curb a variety of fraudulent abuses and to provide a remedy to individuals injured by them. Its stated purpose, set forth in its preamble, is to protect Illinois consumers, borrowers, and businessmen against fraud, unfair methods of competition, and other unfair and deceptive business practices. The Act is clearly within the class of remedial statutes which are designed to grant remedies for the protection of rights, introduce regulation conducive to the public good, or cure public evils.” Scott v. Association For Childbirth At Home, International (1981), 88 Ill. 2d 279, 288, 430 N.E.2d 1012.

The court noted further that “[sjection 4 authorizes the Attorney General to *** prescribe rules and regulations to accomplish the objectives and carry out the duties prescribed by the Act.” (88 Ill. 2d 279, 292 n.2.) We see no reason to impose a restrictive procedural gloss on the Attorney General’s authority to promulgate legislative rules and regulations when a properly promulgated substantive rule unquestionably effectuates the objectives of the statute. Independent Bankers Association of America v. Heimann (D.C. Cir. 1979), 613 F.2d 1164, 1169.

We find additional persuasive support for this position in National Petroleum Refiners Association v. Federal Trade Com. (D.C. Cir. 1973), 482 F.2d 672. The issue in this landmark case was whether the Federal Trade Commission possesses substantive rulemaking authority.

Section 5 of the Federal Trade Commission Act directed the FTC to “prevent persons, partnerships, or corporations *** from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.” (15 U.S.C. sec. 45(a)(6) (1972).) Section 6(g) of the Act empowered the FTC “to make rules and regulations for the purpose of carrying out the provisions of sections 41 to 46 and 47 to 58 of this title.” 15 U.S.C. sec. 46(g) (1972).

In National Petroleum, the court considered an argument similar to the one plaintiff advances here that the “rule-making power [in section 6(g)] is limited to specifying the details of the Commission’s nonadjudicatory, investigative and informative functions spelled out in the other provisions of Section 6 and should not be read to encompass substantive rule-making in implementation of Section 5 adjudications.” (482 F.2d 672, 676-77.) The court rejected this argument “for the simple reason that Section 6(g) clearly states that the Commission ‘may’ make rules and regulations for the purpose of carrying out the provisions of Section 5 and it has been so applied.” (482 F.2d 672, 677.) Similarly, section 4 of the Illinois Act provides that the Attorney General “may *** promulgate such rules and regulations as may be necessary” to “accomplish the objectives and to carry out the duties prescribed by [the] Act.” (Ill. Rev. Stat. 1981, ch. 121½, par. 264.) The powers specified in section 4 of the Act do not stand isolated from the Attorney General’s enforcement role laid out in section 7. (Ill. Rev. Stat. 1981, ch. 121½, par. 267.) Like the Federal Trade Commission Act, the Illinois Consumer Fraud and Deceptive Business Practices Act should be treated as an integrated whole. 482 F.2d 672, 677-78.

The court of appeals in National Petroleum saw “no reason to import * * * a [procedural] restriction on the ‘rules and regulations’ permitted by Section 6(g).” (482 F.2d 672, 678.) To the contrary, the court stated:

“[judicial precedents concerning rule-making by other agencies and the background and purpose of the Federal Trade Commission Act lead us liberally to construe the term ‘rules and regulations.’ The substantive rule here unquestionably implements the statutory plan. Section 5 adjudications — trial type proceedings — will still be necessary to obtain cease and desist orders against offenders, but Section 5 enforcement through adjudication will be expedited, simplified, and thus ‘carried out’ by use of this substantive rule. And the overt language of both Section 5 and Section 6, read together, supports its use in Section 5 proceedings.” 482 F.2d 672, 678.

In order to accomplish the objectives and to carry out the duties prescribed by the Consumer Fraud and Deceptive Business Practices Act, section 4 of that Act authorizes the Attorney General to “promulgate such rules and regulations as may be necessary, which rules and regulations shall have the force of law.” (Ill. Rev. Stat. 1981, ch. 121½, par. 264.) The legislature has mandated that the Act “shall be liberally construed to effect the purposes thereof” (Ill. Rev. Stat. 1981, ch. 121½, par. 271a), and substantive rulemaking power “unquestionably implements the statutory plan” (National Petroleum, Refiners Association v. Federal Trade Com,. (D.C. Cir. 1973), 482 F.2d 672, 678). Moreover, the Attorney General’s statutory responsibility to enforce the provisions of the Act (Ill. Rev. Stat. 1981, ch. 121½, par. 267) will be “expedited, simplified and thus ‘carried out’ by use of [these] substantive rule[s].” 482 F.2d 672, 678.

We agree with the Attorney General that his right to request injunctive and other relief under section 7 of the Act (Ill. Rev. Stat. 1981, ch. 121½, par. 267) does not preclude substantive rulemaking as a means of accomplishing the objectives of the statute. The Attorney General must still seek relief in the circuit court to secure an injunction against any person violating a rule or regulation. Substantive rulemaking does not bypass the injunction proceedings; it merely supplements them.

Finally, it must be observed that the Attorney General “is hardly free to write [his] own law of consumer protection *** since the statutory standard which the rules may define with greater particularity is a legal standard” (National Petroleum, Refiners Association v. Federal Trade Com,. (D.C. Cir. 1973), 482 F.2d 672, 693) and judicial review is available to ensure that any rules promulgated by the Attorney General come within that standard.

In determining whether the legislature intended to limit the Attorney General’s rulemaking authority to matters of procedure, we note that section 2 of the original Consumer Fraud Act exempted “any advertisement which is subject to and complies with the rules and regulations of *** the Federal Trade Commission.” (Emphasis added.) (Ill. Rev. Stat. 1961, ch. 121½, par. 262.) The “rules and regulations” issued by the Federal Trade Commission in 1961 were termed trade practices conference rules and were designed to inform businessmen what factors would guide Commission decisions. While these rules were not binding on the courts (see Federal Trade Commission v. Mary Carter Paint Co. (1965), 382 U.S. 46, 47-48, 15 L. Ed. 2d 128-29, 86 S. Ct. 219-21), it is clear that the content of the rules was substantive, not procedural.

The term “rules and regulations” appears in both sections 2 and 4 of the Consumer Fraud Act. Words which, when used in one section of a statute, have a clearly defined meaning, ordinarily will be given the same meaning in another section of the same statute. (Airdo v. Village of Westchester (1981), 95 Ill. App. 3d 568, 569, 420 N.E.2d 472.) In section 2, the term “rules and regulations” refers to substantive, not procedural, rules and regulations. Absent a contrary indication, the same term should be given the same meaning in section 4. Here, there is no such indication. In contrast to the statutes in other States (see, e.g., Ariz. Rev. Stat. Ann. sec. 44 — 1526(A)(4) (1967) and Kan. Stat. Ann. sec. 50 — 630 (1976) and the Official Kansas Comment thereto), section 4 does not restrict the Attorney General’s rulemaking authority to issuance of procedural rules and regulations. Nor, in our opinion, should section 4 be so narrowly construed.

The plain language of section 4 confers upon the Attorney General legislative rulemaking authority. Plaintiff has offered no valid reason why this authority should be limited to procedural rulemaking. Plaintiff has not cited a single instance in which an administrative agency’s general power to promulgate legislative rules and regulations has been restricted to matters of procedure. In our judgment, plaintiff’s interpretation of section 4 is arbitrary and, if accepted, would frustrate the clear legislative mandate that the Act be used to the utmost degree in eradicating all forms of deceptive and unfair business practices. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 495, 429 N.E.2d 1267.) Accordingly, we agree with the circuit court that section 4 of the Illinois Consumer Fraud and Deceptive Business Practices Act confers upon the Attorney General authority to promulgate binding substantive rules and regulations.

II

Plaintiff next contends that the Buyers Club Rules as promulgated by the Attorney General unconstitutionally impair the obligation of contracts.

Rule 102 provides that “[tjhese rules shall be effective and apply to the operation of all existing and future buyers club businesses situated, or with buyers residing, in any county within the State of Illinois.” (4 Ill. Reg., No. 37, at 570 (1980).) Plaintiff submits that since the Rules do not exempt membership contracts entered into before October 1, 1980 (the effective date of the Rules), all such preexisting contracts are subject to the Rules. We cannot agree.

Rule 102 states that the rules apply to the operation of “all existing and future buyers club businesses,” not to all existing and future buyers club contracts. (Emphasis added.) An examination of the Buyers Club Rules indicates that it would be impossible to apply many of the Rules to buyers club membership contracts entered into before October 1, 1980. For example, Rule 201 requires certain written disclosures prior to the execution of an application or contract for discount buying services; Rule 202 prohibits certain sales representations and practices; Rules 203 and 206 dictate specific contract terms; and Rule 204 limits the duration of a contract for discount buying services. 4 Ill. Reg., No. 37, at 573-83 (1980).

We do not believe the Buyers Club Rules specifically had to exempt existing contracts for discount buying services when it is readily apparent that many of the Rules logically could not be given retroactive effect. It is well established that administrative regulations should be construed in a manner compatible with constitutional limitations. (Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 59, 387 N.E.2d 320.) Consistent with this rule of construction, we interpret the Buyers Club Rules not to apply to membership contracts entered into before October 1, 1980, the date on which the Rules became effective.

Ill

Plaintiff’s third and final contention is that the Consumer Fraud and Deceptive Business Practices Act constitutes an unlawful delegation of legislative authority to the Attorney General. We disagree.

To delegate its authority, the legislature must sufficiently identify the persons and activities potentially subject to regulation, the harm sought to be prevented and the general means intended to be available to prevent the identified harm. (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 372, 369 N.E.2d 875; People v. Gurrell (1983), 98 Ill. 2d 194, 210-11.) In determining whether an Act satisfies these requirements, the Act must be considered in its entirety. Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 369 N.E.2d 875.

The persons and activities potentially subject to regulation under the Consumer Fraud and Deceptive Business Practices Act are “persons” engaged in “trade or commerce.” (Ill. Rev. Stat. 1981, ch. 121½, par. 262.) These terms are adequately defined in the Act. Ill. Rev. Stat. 1981, ch. 121½, par. 261(c) through (f).

The harm sought to be prevented by the Act are “[ujnfair methods of competition and unfair or deceptive acts or practices.” (Ill. Rev. Stat. 1981, ch. 121½, par. 262.) The constitutionality of these terms was sustained in Scott v. Association For Childbirth At Home, International (1981), 88 Ill. 2d 279, 285-92, 430 N.E.2d 1012. Apropos of the issue before us, the court, in Scott, stated:

“[Ojur conclusion that section 2 is sufficiently definite to serve as a guide to those who must comply with it disposes of the contention that the Attorney General is left without a guide in enforcing the Act. Just as section 2 defines what conduct is prohibited, it defines what conduct is properly the subject of the Attorney General’s investigative and enforcement activities.” 88 Ill. 2d 279, 291-92.

Finally, the means available to the Attorney General to prevent the identified harm include investigatory adjudicatory and regulatory powers. (Ill. Rev. Stat. 1981, ch. 121½, pars. 263, 264, 266, 266.1, 267.) In Scott, the court observed:

“[T]he exercise of the Attorney General’s investigative powers under the Act is subject to judicial supervision. The Attorney General has no power of his own to compel either the filing of reports or the production of documents. If voluntary compliance is refused, he must resort to a court for an order enforcing compliance. (Ill. Rev. Stat. 1977, ch. 121½, pars. 266, 267.)” 88 Ill. 2d 279, 299-300.

These limitations act as safeguards “against abuse or excessive zeal” of the Attorney General. 88 Ill. 2d 279, 300.

Under the Act, the Attorney General has no power of his own to impose sanctions or to compel persons to cease using unfair or deceptive acts or practices. All relief must be obtained through the courts. (Ill. Rev. Stat. 1981, ch. 121½, par. 267.) We therefore conclude that the Consumer Fraud and Deceptive Business Practices Act contains a valid delegation of legislative authority to the Attorney General.

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

Affirmed.

STAMOS and HARTMAN, JJ., concur.

      The Buyers Club Rules (the Rules) defines a “Buyers Club” as “any person or persons, corporation, partnership, unincorporated association, or other organization operating for profit within the State of Illinois which for a consideration provides or purports to provide its buyers with the ability to purchase any of the following merchandise at discount prices: 1. furniture 2. motor vehicles 3. carpeting 4. food items 5. major appliances.” (Rule 101, 4 Ill. Reg., No. 37, at 569 (1980).) The Rules also apply to “[a]ny organization affiliated with a buyers club for the purpose of placing orders with, making payment to, or receiving merchandise from suppliers or manufacturers ***.” (Rule 104, 4 Ill. Reg., No. 37, at 571 (1980).) There are exceptions from application of the Rules which are not involved in this appeal. See Rule 105, 4 Ill. Reg., No. 37, at 571-72 (1980).
      The Rules prohibit certain sales representations and practices, dictate specific contract terms, establish operating procedures, impose State filing and bonding requirements and provide consumer remedies. A detailed explanation of the Rules as originally proposed may be found in 3 Ill. Reg., No. 50, at 39-51.

      GeneralIy, “[procedural rules are those that relate to the method of operation of the agency, while substantive rules are those which establish standards of conduct or entitlement.” Aiken v. Obledo (E.D. Cal. 1977), 442 F. Supp. 628, 649.

      Commentators have expressed the opinion that the North Dakota and South Carolina statutes also authorize the State attorney general to promulgate binding substantive rules and regulations. See Myhre, The Attorney General For The State And The Attorney For The People: The Powers And Duties Of The Attorney General of North Dakota, 52 N.D.L. Rev. 349, 374 (1975); Note, Consumer Protection in North Dakota, 49 N.D.L. Rev. 643, 645 (1973); Day, The South Carolina Unfair Trade Practices Act: Sleeping Giant Or Illusive Panaceal 33 S.C.L. Rev. 479, 516 — 18 (1982).

      Section 56:8 — 4 provides: “To accomplish the objectives and to carry out the duties prescribed by this act, the Attorney General, in addition to other powers conferred upon him by this act, may issue subpoenas to any person, administer an oath or affirmation to any person, conduct hearings in aid of any investigation or inquiry, promulgate such rules and regulations, and prescribe such forms as may be necessary, which shall have the force of law.” The New Jersey Consumer Fraud Act was enacted in 1960. 1960 N.J. Laws ch. 39, at 137.

      In National Petroleum, the plaintiffs challenged the FTC’s authority to issue a “Trade Regulation Rule” declaring that failure to post octane rating numbers on gasoline pumps at service stations was an unfair method of competition and an unfair or deceptive act or practice. 482 F.2d 672, 674.

      “Where the empowering provision of a statute states simply that the agency may ‘make *** such rules and regulations as may be necessary to carry out the provisions of this Act,’ we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is ‘reasonably related to the purposes of the enabling legislation.’ Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280-281 (1969).” Mourning v. Family Publications Service, Inc. (1973), 411 U.S. 356, 369, 36 L. Ed. 2d 318. 329-30, 93 S. Ct. 1652. 1660-61.

      The advantages of a mixed system of rulemaking and adjudication over total reliance on case-by-case adjudication are indisputable. 482 F.2d 672, 681, 683, 690-91.

      The Consumer Fraud Act of 1961 (Ill. Rev. Stat. 1961, ch. 121 1/2, par. 261 et seq.), as amended, was renamed and substantially revised by the Consumer Fraud and Deceptive Business Practices Act of 1973 (Ill. Rev. Stat. 1973, ch. 121 1/2, par. 261 et seq.). Section 2 now provides in relevant part that “[i]n construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act. [15 U.S.C. sec. 45(a).]” Ill. Rev. Stat. 1981, ch. 121 1/2, par. 262.

      Unlike the FTC’s trade practices conference rules, however, rules and regulations promulgated by the Attorney General under the Illinois Act are legislative, not interpretative.


author: PRESIDING JUSTICE WILSON

text:
    JOHN BASS et al., Plaintiffs-Appellants, v. WASHINGTON-KINNEY COMPANY, Indiv. and d/b/a Crown Portable Power Lift Company, et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—2226
    Opinion filed November 18, 1983.

      Cooney and Stenn, of Chicago (John J. Henely and Kathryn L. Fleischer, of counsel), for appellants.
    Sandra Young and Edward C. Purcell, both of Purcell & Wardrope, Chartered, of Chicago, for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Plaintiffs, husband and wife, brought this action to recover damages for personal injuries and loss of consortium, respectively, sustained as a result of plaintiff-husband’s (Bass) assistance in the unloading of a forklift delivered by defendant Washington-Kinney Company to Bass’ place of employment. After a trial by jury, judgment was entered for defendant and against plaintiffs, with costs and charges assessed against plaintiffs. On appeal, plaintiffs contend: (1) the trial court applied an erroneously narrow concept of proximate cause which misled the jury; (2) the trial court improperly allowed defense counsel to force Bass to judge the veracity of a witness; (3) the trial court’s comments to the jury regarding plaintiffs’ unexpected completion of their case were prejudicial to plaintiffs; (4) the trial court erred in refusing to admit Bass’ personnel records; (5) the verdict was against the manifest weight of the evidence; (6) the trial court erroneously allowed unconnected testimony regarding prior unrelated injuries suffered by Bass; (7) the trial court erroneously allowed testimony regarding workers’ compensation; (8) defense counsel’s failure to disclose its expert witnesses prejudiced plaintiffs; (9) the trial court erroneously allowed testimony regarding Bass’ unrelated hospitalizations; and (10) the trial court erroneously admitted evidence regarding Bass’ alcoholism. For the following reasons, we affirm the judgment of the trial court.

The record establishes that at the time of the accident, Bass was employed by the Sovereign Hotel, 1040 West Granville, Chicago, as a building engineer. As part of his employment responsibilities, Bass performed electrical and plumbing work as well as miscellaneous maintenance tasks. On April 19, 1976, Bass was requested by his boss, Fred Wertymer, to help unload a forklift from a pickup truck which was parked in the alley next to the hotel. The hotel did not have a loading dock. When Bass arrived in the alley, four other employees plus Wertymer were already there and the forklift was on the truck bed, near the tailgate. The driver indicated that the forklift had been incorrectly loaded onto the truck. Generally, for a ground delivery, the forks on the lift would face the rear of the truck so that it could be driven down the tailgate ramp. In this case, however, it had been loaded with the forks facing the front of the truck.

Bass testified that Wertymer ordered him to hurry up and help unload the forklift because the hotel was paying the driver by the hour. The driver proceeded to lower the tailgate to a position parallel to the truck bed and secured it with a chain. At this time, Bass was standing on the ground, near the left rear side of the truck and the driver was standing on the right rear side. The driver then instructed Bass as to how to operate the control levers on the forklift so that Bass could slowly move the forklift onto the tailgate as the driver lowered the tailgate to the ground by loosening the chain support. Suddenly, the chain slipped and the tailgate dropped. Before Bass could get out of the way, the lift toppled over and fell onto his back. Several of the men raised the lift off of him and Bass managed to pull himself up. Wertymer then drove Bass to Edgewater Hospital where he was admitted with spinal injuries and released after 30 days. In addition to numerous other post-accident problems, Bass has been sexually impotent since the occurrence.

On cross-examination, Bass stated that he had never been on the bed of the truck and had never received instructions from the driver not to stand behind the forklift. The forklift itself was approximately six feet tall, the controls were approximately 2V2 feet from the bed of the truck and the bed was approximately three feet off the ground. Thus, he could easily reach the controls while he was standing on the ground. Bass did not recall whether the forklift was moving when the chain slipped; but he did recall that the lift was partly on the truck bed and partly on the tailgate when the tailgate started to drop. When Bass tried to support the lift, he may have caused it to fall on its side.

Nathaniel Burns, Bass’ co-worker, testified that the driver activated the forklift and rolled it back to the tailgate at which time the chain either slipped or broke, the tailgate dropped, and the forklift fell off the truck, landing on Bass’ back. Bass attempted to run out of the way, but fell. Prior to the accident, both Bass and Burns had been standing on the ground, close to the left rear side of the truck; the driver was on the right side. All three of them were physically touching the machine in an effort to keep it from falling. Although from his vantage point Burns could not see whether Bass had positioned his hands on the lift controls, he was sure that Bass had not activated the lift. Further, Bass never climbed onto the bed of the truck.

On redirect, Burns stated that the lift had fallen directly from the back of the truck, not sideways. Burns, Bass and the driver attempted to hold it when it started to fall, but as soon as they realized they could not steady it, they let go and ran. The driver was supervising the unloading.

Next, Michael Allison, driver of the delivery truck, testified as an adverse witness pursuant to section 2 — 1102 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102.) At the time of the delivery, Allison had been employed by defendant and had been furnished with its truck, forklift and ramp for delivery purposes. It was standard procedure for defendant to issue work service tickets which indicated whether delivery was to be dock or ground, which fact determined the position in which the forklifts would be loaded. Allison recalled previous occasions when forklifts had not been properly loaded for the specific type of delivery; yet, successful deliveries had been accomplished. The work service ticket for the Sovereign Hotel indicated “ground delivery”; however, the lift had been loaded as if for a dock delivery. Generally, in such a situation, the driver would place a two-by-four under the ramp to modify the steep angle of the lowered tailgate. However, the driver had not been provided with a board for the Sovereign Hotel delivery. In readying the forklift for unloading, Allison had activated the controls and moved it to the rear wheel well area of the truck bed.

During examination by defense counsel, Allison testified that on April 19, 1976, he pulled his truck into the alley next to the Sovereign Hotel, unclamped the forklift, and proceeded to lower his tailgate parallel to the bed, securing it with a chain. By twisting the handle controls, he then moved the lift toward the rear wheel well area. At one point, someone from the hotel brought out a two-by-four; however, it was too large to be useful. After Allison moved the lift, he noticed Bass for the first time, standing on the truck bed, on the other side of the lift. Bass had his hands on the controls and asked Allison how to operate it. Allison told him to “hang loose” and that he would explain the controls after they unloaded the lift. Bass then told Allison that they should unload the lift by moving it onto the tailgate and then lowering the tailgate. Allison told him that that was impossible and if he needed any help, he would ask for it. Allison then jumped off the truck and proceeded to lower the tailgate by manipulating the chain. Suddenly, he heard the forklift motor start, and saw Bass and the lift falling down the ramp. The weight of the lift caused the chain to slip and the tailgate dropped to the ground. When Allison reached up to grab the lift, it lurched sideways and hit the ground, falling on top of Bass.

Thereafter, outside the presence of the jury, defendant requested the court’s permission to mention Bass’ chronic alcoholism on the ground that it precipitated certain ailments and injuries for which Bass was claiming damages. In response, counsel for plaintiffs argued that Bass’ alcoholism was unrelated to the issue of liability and testimony regarding his condition would severely prejudice plaintiffs. The trial court agreed that it was unrelated to the issue of liability, but also recognized that there could be problems regarding the issue of damages if such testimony were excluded. After further discussion, the court stated that because there was no evidence that Bass had been drinking or was under the influence of alcohol at the time of the accident, the only grounds for cross-examining Bass as to his drinking would be its relevance to the claim of sexual impotence and the determination of damages. The court then suggested that the parties stipulate to Bass’ alcoholism and also to the fact that there was no evidence that he had been drinking at the time of the accident. Counsel for plaintiffs agreed to the stipulation, but argued that because they would be deleting any costs for the treatment of Bass’ alcoholism from their claim for damages, any evidence regarding treatment for alcoholism or any symptoms during the immediate hospitalization would be irrelevant and highly prejudicial. Thereafter, the trial court read the following stipulation to the jury:

“There will be or I should say that there is a stipulation between the parties that the plaintiff is an alcoholic, and when I say ‘the plaintiff,’ I am talking about John Bass, and he has been an alcoholic for some years. And it is agreed between the parties, it is stipulated between the parties that at the time of this occurrence, there is no evidence that he was under the influence of alcohol, nor that he was drinking alcohol.
Now, that means that both sides agree that there is no evidence of that at the time of the occurrence, at the time he was injured.
If you hear some evidence of alcoholism from witnesses, this evidence is allowed in only for the purpose of damages, if any.”

Next, William Kearney, vice-president of finance of Irmco Properties and Management, management company for the Sovereign Hotel, testified regarding Bass’ pre-application for employment at the Sovereign Hotel. The pre-application was retained by Irmco as a. business record in the ordinary course of business. Notations on the' pre-appli-cation which indicated that Bass’ employment references had been checked also had been made in the ordinary course of business. When counsel for plaintiffs offered the pre-application into evidence, the trial court sustained defendant’s objection. Thereafter, outside the presence of the jury, plaintiff made the following offer of proof: (1) the pre-application qualifies as a business records exception to the hearsay rule under Supreme Court Rule 236 (87 Ill. 2d R. 236); (2) Kearney would testify that it is the practice of Irmco to check employment references; and (3) a previous employer of Bass reported that Bass was “an excellent worker, very good mechanic, and very dependable.” On cross-examination, Kearney stated that Irmco had no specific policy regarding the loading and unloading of trucks.

Subsequently, after extensive testimony by several physicians regarding Bass’ injuries, treatment and hospitalizations, plaintiffs, outside the presence of the jury, objected to defendant’s repeated violations of the order in limine which prohibited raising the subject of workers’ compensation. When asked by the court if they wanted to move for a mistrial, plaintiffs declined and failed to make any other motion. The court then advised both counsels to alert their witnesses before they testified that all references to insurance were to be avoided. In response to plaintiffs’ objection, defendant argued that Bass had introduced the subject of workers’ compensation during direct. Similarly, Idell Bass and Kearney also had used the term during direct.

After plaintiffs rested their case, Bass was called by the defense to testify as an adverse witness pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102), at which time he stated that he had never been treated for loss of sexual function.

Therefore, outside the presence of the jury, plaintiffs’ motion to dismiss the truck driver, Michael Allison, as a defendant was granted. In addition, plaintiffs moved, pursuant to section 2 — 1003(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1003(c)), for disclosure of all defendant’s expert witnesses. In response, defendant argued that: (1) plaintiffs’ counsel had been given all copies of any and all memoranda, reports, and documents prepared or used by expert witnesses who would be called to testify during discovery; and (2) plaintiffs’ own answers to interrogatories contained the names of all attending and consulting physicians. Defense counsel further argued, “The purpose of discovery is to prevent surprise, not to divulge the trial tactics and strategy of the parties ***.” Upon referring to the historical and practical notes following section 2 — 1003(c), the court interpreted the intent of the legislature to be that parties must disclose the names and addresses of all potential expert witnesses who will testify not from personal knowledge of the facts of the case, but who will render opinions as to hypothetical situations based upon assumed facts. Thus, because defendant’s expert witnesses were all treating medical doctors, section 2 — 1003(c) was inapplicable. The court then denied defendant’s motion for a directed finding and plaintiffs’ motion to prohibit defense witness, Fred Wertymer, from testifying that he had on occasions smelled alcohol on Bass’ breath.

Following extensive medical testimony on defendant’s behalf regarding Bass’ injuries and treatments, Fred Wertymer, Bass’ supervisor at the Sovereign Hotel, testified that on April 19, 1976, he had summoned some of the hotel staff to assist in unloading a forklift from defendant’s truck. Wertymer did not recall whether the driver asked for assistance and Wertymer himself never instructed Bass to remove the lift from the truck. In fact, he told Bass that it was not his job to remove the lift and should not get involved. Contrary to everyone else’s opinion, Bass insisted that the lift could be removed by moving it onto the tailgate and then lowering the ramp. Wertymer saw Bass standing on the truck bed, next to the forklift, operating the lift controls and also saw him fall off the back of the truck with the lift. At the time of the accident, the ramp, secured by a horizontal chain, was inclined toward the ground, with one or two boards positioned underneath it. The pressure on the ramp forced the chain to slide up the ramp so that the ramp could no longer support the weight of the lift. Wertymer further stated that several months prior to the accident, he had expressed his concern to Bass about working while under the influence of alcohol. On cross-examination, Wertymer testified that the ramp appeared to be too steep and was improperly positioned for the driver to maneuver the forklift off the truck.

Thereafter, following a discussion in chambers regarding jury instructions, defendant rested its case and closing arguments ensued. Subsequently, the jury returned with its verdict, finding for defendant and against plaintiffs, assessing plaintiffs with defendant’s costs and charges. Following denial of all post-trial relief, plaintiffs filed their appeal.

Opinion

Plaintiffs first contend that the trial court applied an erroneously narrow concept of proximate cause when it refused plaintiffs’ instruction No. 10, which was the long form of Illinois Pattern Jury Instruction (IPI), Civil, No. 15.01 (2d ed. 1971), and accepted defendant’s instruction No. 4, which was the short form of IPI Civil No. 15.01.

The long form of IPI Civil No. 15.01 as submitted by plaintiffs states:

"When I use the expression ‘proximate cause’, I mean any cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]”

The short form as submitted by defendant deletes that portion of the instruction which appears in brackets. Plaintiffs contend that by using the short form, the court “held in effect that only the last act could be a legal cause of the injury,” thus, ignoring the prior alleged negligent acts or omissions of the defendant. For the following reasons, we find that the trial court properly refused plaintiffs’ tendered instruction and accepted that tendered by defendant.

The “Notes on use” and “Comment” which follow IPI Civil No. 15.01 state, respectively:

“This instruction in its entirety should be used only when there is evidence of a concurring or contributing cause to the injury or death (other than acts or omissions of the plaintiff). In cases where there is no evidence of a concurring or contributing cause, the short version without the bracketed material should be used.”
“When the only possible causes of the occurrence are the conduct of plaintiff and defendant, the [long form] would be improper because it would prejudice the defendant’s defense of contributory negligence.”

In Budovic v. Eschbach (1953), 349 Ill. App. 163, 110 N.E.2d 477, the appellate court further clarified the distinctions between the long and short forms of IPI Civil No. 15.01 when it held that absent evidence that a third party is a contributing cause, the short form is the proper instruction. In Dolan v. Crammond (1979), 71 Ill. App. 3d 289, 389 N.E.2d 206, an appeal on the issue of damages only, plaintiffs argued that the trial court erred in refusing the long form of IPI Civil No. 15.01 because it would have assisted the jury in properly analyzing the medical and legal relevance of plaintiffs’ prior and subsequent injuries. Relying on the “Notes on use” to IPI Civil No. 15.01, the Dolan court held that because there was no evidence of a concurring or contributing cause to the automobile collision as defined by the “Notes on use,” the long form was properly refused. Adopting the rationale of both Budovic and Dolan, we conclude that because there is no evidence of a third party’s negligence in the present case, the long form of IPI Civil No. 15.01 is inapplicable. See Reuter v. Kocan (1983), 113 Ill. App. 3d 903, 910, 446 N.E.2d 882, 886.

Plaintiffs further argue that the adoption of the comparative negligence doctrine in Illinois renders the rationale for the use of the short form as articulated in the “Comment” to IPI Civil No. 15.01 obsolete. We disagree. Contrary to plaintiffs’ literal interpretation, Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, did not abolish the concept of contributory negligence. Rather, it altered the effect of a finding of contributory negligence from an absolute bar to plaintiff’s recovery to a proportionate diminution of damages awarded to plaintiff. Thus, consideration of plaintiffs’ contributorily negligent acts or omissions is not an obsolete practice; only the pre-AZms applicability of that consideration is obsolete. Accordingly, the rationale expressed by the IPI committee for the use of the long form of IPI Civil No. 15.01 and subsequently adopted by the courts remains relevant.

In addition, plaintiffs argue that use of the short form misled the jury by limiting causation to the last act. In support of this argument plaintiffs rely on Graves v. Wornson (1978), 56 Ill. App. 3d 873, 371 N.E.2d 692, in which plaintiffs appealed a jury verdict which had found defendant not guilty of negligence when the semi-trailer he had been driving swerved from its lane and collided with plaintiff’s automobile. The reviewing court held, inter alia, that the trial court erred in submitting defendant’s tendered instruction which included language referring to “sole proximate cause” on the ground that the record did not support the theory of the instruction, i.e., there was no evidence of a “sole proximate cause.” We find Graves factually inapposite and of no persuasive value.

Moreover, contrary to plaintiffs’ characterization of the short form of IPI Civil No. 15.01 as “limiting,” we find the language sufficiently broad to include all alleged acts of negligence. Further, the criterion used by Illinois courts in determining the propriety of submitted instructions is whether the jury was fairly, fully and comprehensively informed as to the relevant principles, considering the instructions in their entirety. (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 554, 437 N.E.2d 872.) In the present case, in addition to IPI Civil No. 15.01, we find that the term “proximate cause” was further clarified by jury instructions relating to contributory negligence, burden of proof, allegations of defendant’s negligence, and comparative negligence. Accordingly, considering the instructions as a whole, we conclude that the jury was sufficiently informed and was not misled.

Plaintiffs next contend that the trial court committed reversible error when it erroneously allowed defense counsel to force the plaintiff to judge the veracity of the witness, thereby usurping a function exclusively within the province of the jury.

During cross-examination, after Bass admitted that he had touched the controls on the forklift while it was on the truck bed, the following colloquy ensued:

“DEFENSE: Now, you heard your witness Mr. Burns yesterday testify that at no time did your hands ever touch the controls.
PLAINTIFFS’ COUNSEL: Objection, Your Honor. That kind of question is improper.
COURT: Sustained.
DEFENSE: If a witness came into this courtroom and testified under oath —
PLAINTIFFS’ COUNSEL: Same objection.
COURT: He wasn’t finished with his question.
DEFENSE: If a witness came into this courtroom and testified under oath that at no time did your hands ever touch the controls of that machine, that witness would be mistaken, is that correct?
PLAINTIFFS’ COUNSEL: Objection, Your Honor.
COURT: I’ll take the answer.
PLAINTIFFS’ COUNSEL: If I may, Your Honor, I think that kind of question of characterizing someone else’s testimony, whether it be hypothetical or by name, is held to be improper.
COURT: Well, I have already ruled. I will stay with the ruling. Answer the question. * * *
BASS: Okay. Could it be true that Mr. Burns could have not been looking at the time when I reached up to put my hand on the control?”

In support of their position, plaintiffs rely on Teece v. Bieber (1944), 323 Ill. App. 647, 56 N.E.2d 665 (abstract); Ryan v. Monson (1961), 33 Ill. App. 2d 406, 179 N.E.2d 449; Champion v. Knasiak (1974), 25 Ill. App. 3d 192, 323 N.E.2d 62; and Greig v. Griffel (1977), 49 Ill. App. 3d 829, 364 N.E.2d 660; none of which we find persuasive of their argument. In both Teece and Ryan, error was found in cross-examination which forced the defendant to judge whether testimony of prior witnesses was true or false. The Ryan court specifically noted that such questioning was prejudicially erroneous because it failed to include the possibility of mistake on the part of the witness. In the present case, Bass was asked whether a witness could have been mistaken in his observation, not whether a witness’ testimony was true or false. In Champion, counsel for plaintiffs specifically asked defendant to comment on the alleged inconsistencies between his testimony and out-of-court statements made by a prior witness. The Champion court held that such conduct constituted error on the ground that the out-of-court statements had been used in an attempt to impeach the defendant. By contrast, we find no evidence in the present case that the purpose of defense counsel’s question was to impeach plaintiff. It merely introduced the possibility of mistake for consideration by the jury which does not constitute reversible error.

Finally, although plaintiffs rely on Greig v. Griffel (1977), 49 Ill. App. 3d 829, 364 N.E.2d 660, as support for their position, we find it more accurately supports defendant’s argument. In Greig, counsel for plaintiff was permitted to ask one of the defense witnesses whether defendant’s testimony was “at variance” with that particular witness’ answers. In affirming the trial court’s ruling which allowed the testimony, the reviewing court stated:

“We are inclined to believe that a question involving a variance in the testimony, or whether a previous witness had been wrong or mistaken, does not necessarily force the witness being questioned to judge the truthfulness and veracity of the prior witness.” (49 Ill. App. 3d 829, 842.)

Plaintiffs argue that the Greig court qualified its finding by noting the particular fact situation before it in which: (1) a party to the action was not forced to answer the question; (2) the witness had no trouble answering the question; and (3) it was an isolated question which received no particular emphasis. We acknowledge that these considerations were mentioned in Greig, but do not see them as prerequisites to the conclusion that such questioning does not constitute reversible error. Further, while we agree with the Greig court that such questioning is always improper and recognize that there is a fine line between questions regarding mistake and those asking for a judgment of truthfulness, after considering the record at bar, we do not find that the line to reversible error was crossed.

We next address plaintiffs’ contention that the trial court committed prejudicial error when it commented to the jury that, “The plaintiffs unexpectedly have rested their case.” We disagree for two primary reasons.

First, after reviewing the trial court’s comment in its entirety, we note that immediately prior to its comment regarding plaintiffs, the court stated, “The defendant does not have any witnesses.” It is our opinion that the trial court’s comments attributed delay in trial to both parties equally, thus, prejudicing neither at the expense of the other. Second, in their brief, plaintiffs conveniently overlooked the fact that later that day, in chambers, the trial court expressed its concern that its remarks may have prejudiced plaintiffs and indicated that it would say something to the jury the next day to clear up any misconception. The following day, in chambers, counsel for plaintiffs asked the court to “speak to the jury as to whether or not anybody got the impression that the plaintiff had not put on all of his case or something to that effect.” Thereafter, the court made the following statement to the jury:

“Yesterday, when we adjourned, I made some remarks about the plaintiffs unexpectedly resting. I have since been reminded by the plaintiffs that that was not entirely so. Counsel indicated that as the lawyer for the plaintiffs.
I can tell you, from my personal experience of over 25 years in trying lawsuits before I became a judge, that it is very difficult to corroíate [sic] and program witnesses and to get things lined up. The logistics are quite an effort. I think both attorneys have done well. I would not want any of the remarks I made to reflect in any way on your decisions. I direct you, as a matter of fact, not to have that interfere with any of your judgments in connection with the evidence you hear.”

Accordingly, considering the nonprejudicial effect of the original comments (see Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 408 N.E.2d 1112) and the court’s subsequent admonishment to the jury to disregard those comments (see Felker v. Hobbs (1970), 124 Ill. App. 2d 63, 260 N.E.2d 79), we do not find that such comments constituted reversible error.

Next, we address plaintiffs’ contention that the trial court improperly excluded Bass’ pre-application for employment from evidence and improperly admitted defendant’s forklift invoice. Regarding the preapplication,- plaintiffs maintain that it tended to show that Bass had a good prior work record and it should have been admitted under Supreme Court Rule 236 (the Rule) (87 Ill. 2d R. 236), the business records exception to the hearsay rule, which provides, in pertinent part:

“(a) Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility.”

As the aforementioned indicates, there are two prerequisites to admission of a business record under the Rule: (1) it must have been made in the regular course of business, and (2) it must have been regular business practice to have made such a record. In the present case, William Kearney, a vice-president of Irmco, testified as to both prerequisites. Thus, the pre-application itself was admissible. Defendant maintains, however, that the notations on the application which indicated that Bass’ employment references had been verified were inadmissible as “hearsay within hearsay.” In so arguing, defendant characterized the notations as “statements” and “descriptions of telephone conversations.” However, Kearney’s testimony indicates that there were only a “number of arrows and diagrams to indicate that certain persons had been called and checked.” In either case, we do not find that the information contained on the application constituted hearsay within hearsay. (Myers v. Spohnholtz (1973), 11 Ill. App. 3d 560, 297 N.E.2d 183.) In Myers, the court was confronted with a similar question when defendant sought to admit into evidence personal record cards of the defendant union which contained pertinent notations regarding plaintiff’s union activities. The reviewing court held that the cards with notations were admissible on the ground that they were kept in the usual and ordinary course of business.

In the present case, counsel for plaintiffs made the following offer of proof regarding the pre-application: (1) the document would qualify as a business records exception to the hearsay rule; and (2) if asked, the witness would state, inter alia, that a particular past employer of Bass described Bass as having been an excellent worker. Although we have concluded that the pre-application itself was admissible under the Rule, the language of the first sentence of the Rule makes it apparent that it is only the business record itself which is admissible, and not the testimony of a witness who makes reference to the record. Once the custodian of the records has testified to the manner in which the records were kept, his function is completed. (Smith v. Williams (1975), 34 Ill. App. 3d 677, 680, 339 N.E.2d 10.) Thus, we conclude that the trial court properly excluded Kearney’s testimony as to the contents of the records. Finally, although we find that the pre-application itself was admissible, we do not agree with plaintiffs that they were prejudiced by its exclusion. Accordingly, we find that any error committed by the trial court in this regard was harmless. Nitrin, Inc. v. Bethlehem Steel Corp. (1976), 35 Ill. App. 3d 596, 342 N.E.2d 79.

Regarding admission of defendant’s forklift invoice, we note that plaintiffs’ argument is void of citation to any legal authority as support for their position. Because a reviewing court is entitled to have issues clearly defined, with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research (Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 441 N.E.2d 360), we deem the issue of admissibility of the invoice waived. Stach v. Sears, Roebuck & Co. (1981), 102 Ill. App. 3d 397, 429 N.E.2d 1242.

We next address plaintiffs’ contention that the jury’s verdict was against the manifest weight of the evidence. Plaintiffs maintain that the uncontested fact that the forklift was improperly loaded by defendant created a situation of risk which rendered defendant liable for negligence. Plaintiffs further contend that this risk situation was compounded by defendant’s failure to supply a delivery truck equipped with a properly angled ramp and two-by-four boards with which to alter the angle of the ramp. Defendant counters with the argument that it was Bass’ unauthorized operation of the forklift which caused his injury and not the loading or unloading of the forklift.

While the record reveals extensive conflict in testimony as to exactly where Bass was standing and under whose orders, if any, he operated the forklift controls, we are of the opinion that the record is supportive of defendant’s position that Bass’ unauthorized actions were the proximate cause of his injury. In making this determination, we are cognizant of the well-established rule that resolution of contradictory testimony is not a function of the reviewing court and that even if there is conflicting evidence which is substantially equal on pertinent factual questions (Bentley v. City of Chicago (1979), 79 Ill. App. 3d 1028, 398 N.E.2d 912), the reviewing court cannot reevaluate the evidence and set aside a jury verdict merely because it could have reached a different conclusion. (Ryon v. Javior (1979), 69 Ill. App. 3d 946, 387 N.E.2d 936.) Rather, it is the jury’s function to evaluate the weight of the evidence and to assess the credibility of the witnesses, and its findings will not be disturbed unless the verdict was palpably erroneous, the opposite verdict is clearly compelled, or the findings appear to be unreasonable, arbitrary and not based upon the evidence. (Pietka v. Chelco Corp. (1982), 107 Ill. App. 3d 544, 553, 437 N.E.2d 872.) In light of the overwhelming evidence which supported defendant’s theory, we conclude that the jury’s verdict was neither unreasonable nor palpably erroneous. Accordingly, we hold that the verdict was not contrary to the manifest weight of the evidence.

Although the remaining five evidentiary errors alleged by plaintiffs relate primarily to the issue of damages, which, due to a finding of liability against plaintiffs, was never reached by the jury, in the interests of reviewing all allegations that impact upon the fairness of plaintiffs’ trial, we shall briefly address these alleged errors.

First, plaintiff contends that the trial court erred when it permitted defense counsel to ask Idell Bass about Bass’ hospitalizations and treatments, if any, prior to and after the accident. Plaintiff maintains that such questioning was a ploy to convey improper facts to the jury and that defense counsel never made any attempt to connect these hospitalizations and treatments to the claimed injuries.

Upon reviewing that portion of the record which relates to the two exchanges cited by plaintiffs in their brief, we note that plaintiffs objected only to the relevancy and form of the question regarding the first exchange and raised no objection to the second exchange. Therefore, because plaintiff failed to raise a specific objection at trial alleging insufficient foundation (Papageorgiou v. F.W. Woolworth Co. (1978), 66 Ill. App. 3d 873, 383 N.E.2d 1346), and further failed to move to strike the unconnected testimony at the end of defendant’s case (Greig v. Griffel (1977), 49 Ill. App. 3d 829, 841, 364 N.E.2d 660), we find that plaintiffs have waived this issue for review.

Next, plaintiffs contend that, contrary to the court’s ruling on plaintiffs’ motion in limine prior to trial, defense counsel was permitted to repeatedly introduce the subject of workers’ compensation and social security benefits into the trial to the prejudice of plaintiffs. Preliminarily, we note that our review of the record has failed to reveal the motion in limine referenced by plaintiffs. However, we do recognize the established law in Illinois that evidence regarding claims for workers’ compensation is inadmissible against a plaintiff in a negligence action (Hopwood v. Thomas Hoist Co. (1966), 71 Ill. App. 2d 434, 444, 219 N.E.2d 76), and we shall review plaintiffs’ contention accordingly.

First, plaintiffs’ statement that the subject of workers’ compensation was “first raised” by defendant is patently untrue. Plaintiffs themselves introduced the subject of workers’ compensation when querying Bass during direct examination as to the payment of certain hospital and doctors’ bills. Further, during direct examination of their witness, Dr. Riera, plaintiffs elicited testimony regarding payment of bills not covered by workers’ compensation. In addition, counsel for plaintiffs also emphasized the subject of insurance when, during their cross-examination of defense witness, Dr. Renaud, counsel asked Renaud if he “made a lot of reports to insurance companies.” Having introduced and repeatedly interjected the subject of insurance at trial, plaintiffs cannot now complain that the comments made by witnesses while being examined by defense counsel were improper. (See Hopwood v. Thomas Hoist Co. (1966), 71 Ill. App. 2d 434, 444, 219 N.E.2d 76.) Moreover, because the comments objected to by plaintiffs were inadvertent responses, not intentionally elicited by defense counsel, we hold that the insurance references do not constitute grounds for mistrial or reversal. (Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 266, 362 N.E.2d 446.) Further, although reference to insurance during a trial is generally improper, it is not per se reversible, as prejudice must be shown. (Joynt v. Barnes (1979), 71 Ill. App. 3d 187, 198, 388 N.E.2d 1298.) In the present case, because the issue of damages was never reached by the jury, plaintiffs were clearly not prejudiced in any way. Regarding plaintiffs’ allegation that they were prejudiced by comments regarding social security benefits, we note that the only specific question relating to such benefits was asked by counsel for plaintiffs.

Plaintiffs next contend that the trial court erred in failing to bar the testimony of defendant’s medical experts, Dr. Branovacki, Dr. Renaud, Dr. Tausk and Dr. Dolar, on the ground that they were not disclosed to plaintiffs in violation of section 2 — 1003(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1003(c)). Section 2 — 1003(c) states:

“(c) A party shall not be required to furnish the names or addresses of his or her witnesses, except that upon motion of any party disclosure of the identity of expert witnesses shall be made to all parties and the court in sufficient time in advance of trial so as to insure fair and equitable preparation of the case by all parties.”

Plaintiffs maintain that in addition to filing interrogatories requesting disclosure, they also filed a request to produce names of expert witnesses at the commencement of trial and before jury selection. In response, defendant argues that plaintiffs suffered no prejudice by its failure to disclose because plaintiffs had in their possession copies of any and all memoranda, reports and documents prepared or used by the expert witnesses and, thus, had the names readily available and could not realistically claim surprise. While it appears that defendant failed to abide by the mandates of section 2 — 1003(c), imposition of sanctions against a party for noncompliance with discovery rules is within the discretion of the trial judge (Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 4, 422 N.E.2d 241), who considers: (1) the surprise, if any, to opposing counsel; (2) timely objection; and (3) good faith of the party calling the witness. (Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1018, 388 N.E.2d 770.) In the present case, although plaintiffs raised a timely objection to the testimony of Dr. Branovacki, they did not object to the testimony of Dr. Renaud, Dr. Tausk or Dr. Dolar. Thus, they have waived their objection regarding the testimony of the latter three. Further, in light of the uncontroverted fact that plaintiffs had copies of the reports filed by Dr. Branovacki regarding Bass’ claim for social security benefits, we fail to see how plaintiffs could have been surprised by Dr. Branovacki’s testimony or in any way prejudiced thereby. While we do not condone defendant’s failure to disclose, we do not agree with plaintiffs that the omission constituted prejudicial error. Therefore, we find the trial court did not abuse its discretion in allowing the testimony of defendant’s medical experts.

Next, plaintiffs contend that the trial court erroneously allowed testimony of unrelated hospitalizations into evidence which defendant failed to connect to the injuries claimed by Bass as a result of the forklift accident. It is a well-established rule in Illinois that when counsel has failed to connect up evidence so as to render it admissible, opposing counsel must move to strike the unconnected evidence or else waive the issue. (Greig v. Griffel (1977), 49 Ill. App. 3d 829, 841, 364 N.E.2d 660.) Because plaintiffs failed to move to strike the testimony complained of, we deem the issue waived. Moreover, we note that because this issue relates to the determination of damages only, any error by the trial court would be harmless error inasmuch as the issue of liability was decided adversely to plaintiffs. Kortlander v. Chicago Transit Authority (1965), 56 Ill. App. 2d 48, 53, 205 N.E.2d 516.

Lastly, plaintiffs contend that the trial court erroneously admitted testimony regarding Bass’ alcoholism into evidence. Plaintiffs argue that in response to their motion in limine requesting exclusion of any evidence of Bass’ alcoholism, the trial court had ruled that it would allow such evidence on the “promise” by defense counsel that he would provide evidence that Bass’ alcoholism was related to and a cause of Bass’ claimed sexual impotency. Because no such evidence was introduced, plaintiffs claim the testimony regarding alcoholism was irrelevant and “extraordinarily prejudicial.”

The record, however, does not support plaintiffs’ argument. Outside the presence of the jury, both counsels and the trial judge discussed at length the impact of and necessity for testimony regarding Bass’ alcoholic condition. As a result, the trial court concluded:

“COURT: [T]he only way that any cross examination could be conducted of [Bass] in regards to drinking would be that it relates to the damages ***.
And it was my understanding *** that the sexual impotence, of which the plaintiff’s theory is that it is related to the trauma, that is, the accident, was contested by the defense.
The defense has been — at least as I understand it, the defense was going to offer evidence that the sexual impotence was not the traumatic experience, but was the result of alcoholism.
Did I understand that correctly?
DEFENSE: Correct.”

As the foregoing illustrates, evidence of Bass’ alcoholism was not conditioned solely upon defendant’s “promise” to connect the condition to sexual impotence. Rather, the primary purpose for allowing the testimony was its impact on the issue of damages. This is further evidenced by the stipulation read to the jury which stated, in part: “If you hear some evidence of alcoholism from witnesses, this evidence is allowed in only for the purpose of damages, if any.” Accordingly, because admission of testimony regarding Bass’ alcoholism was not conditioned solely upon defendant’s ability to connect it to the claim of sexual impotence and because the trial court definitively instructed the jury as to the purpose for which such testimony was to be considered, we find that the testimony was properly admitted as relevant to the issue of damages and did not prejudice plaintiffs’ right to a fair trial.

Based on the aforementioned, we affirm the judgment of the circuit court of Cook County.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      Upon plaintiffs’ motion, Michael Allison, driver of the pickup truck, was dismissed as a party defendant.