author: JUSTICE WILSON

text:
    RONALD STANKOWICZ, Plaintiff-Appellant, v. LUIS B. GONZALEZ, Indiv. and d/b/a Apolo Radiator Service and Body Shop, Defendant-Appellee.
    First District (5th Division)
    No. 80-2337
    Opinion filed December 31, 1981.

      Jordan, Kralik & Jordan, of Chicago (Edward R. Jordan, of counsel), for appellant.
    Law Offices of Alan Kawitt, of Chicago, for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

On May 16, 1978, plaintiff filed an action for $4,000 in damages, alleging that defendant had failed to properly repair his “classic automobile,” a 1969 Cadillac Coupe de Ville convertible. Defendant, sole proprietor of Apolo Radiator Service and Body Shop, was never served with summons. On July 28, 1980, after learning of a default judgment entered against him on October 31,1979, defendant specially appeared in court pursuant to section 20 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 20) and moved to quash the return of service on the basis that he had no knowledge of the person or supposed agent whose name was entered on the sheriff’s return of service. Defendant also filed a verified affidavit in support of the motion. Further, he filed a “petition to vacate judgment,” purportedly brought pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). This petition basically repeated that he had not been properly served with summons in plaintiff’s lawsuit. Additionally, the petition recited that he had “a good and meritorious defense” to the complaint.

Plaintiff filed a motion to strike defendant’s pleadings, alleging that by filing the section 72 petition contemporaneously with the special and limited appearance to quash summons, defendant effectively entered a general appearance and thereby waived the jurisdictional defects. Further, plaintiff’s motion alleges that the section 72 petition is deficient in form and content and thus cannot stand.

On July 28,1980, the trial court vacated the October 31,1979 default judgment, allowed defendant’s special appearance to stand as a general appearance, and gave defendant 30 days to file an answer or otherwise plead. On August 8,1980, the court denied plaintiff’s motion to vacate the July 28 order; plaintiff appeals.

Opinion

The two issues we must consider on this appeal are (1) whether the order appealed from is a final and appealable order, and (2) whether defendant effectively waived his jurisdictional objection to the default judgment by filing a section 72 petition along with his special appearances to quash summons.

In considering the appealability of the order we note that, with few exceptions, appeals can be taken only from final orders. (See Ill. Rev. Stat. 1979, ch. 110A, pars. 301 through 308.) An order is final if it terminates the litigation on the merits “or disposes of the rights of the parties, either on the entire controversy or a separate branch thereof” (Prado v. Evanston Hospital (1979), 72 Ill. App. 3d 622, 624, 390 N.E.2d 1270, 1272), so that the only thing left to do is proceed with execution on the judgment. Havlen v. Waggoner (1981), 92 Ill. App. 3d 916, 416 N.E.2d 684.

Defendant argues that because the trial court vacated the default judgment and allowed him 30 days to answer or otherwise plead, the litigation remains pending and the July 28, 1980, order vacating the default judgment is interlocutory in nature. This position is supported by authorities which hold that an order vacating a default judgment pursuant to a special appearance challenging defective service is not a final and appealable order. (Alexander v. Burke (1972), 6 Ill. App. 3d 919, 287 N.E.2d 53; Mabion v. Olds (1967), 84 Ill. App. 2d 291, 228 N.E.2d 188.) In Mabion the plaintiffs-appellants made an argument similar to the one made in the present case, that defendant’s motion to quash service of summons was, in effect, made pursuant to section 72 of the Civil Practice Act and was thus appealable. The court first noted that, the statute explicitly states that it does not affect any existing right to relief from a void order. (See Ill. Rev. Stat. 1979, ch. 110, par. 72(6).) The court then concluded that since “[t]he sole effect of the order entered was to vacate a void default judgment and require defendant to answer,” the order was nonfinal. (Mabion v. Olds (1967), 84 Ill. App. 2d 291, 295, 228 N.E.2d 188, 189.) Accordingly, the appeal was dismissed.

Under the Mabion rationale, the present appeal should be dismissed if the October 31 order is in fact void. We find that it is. Proper service of summons is a prerequisite to obtaining jurisdiction over a party (Home State Savings Association v. Powell (1979), 73 Ill. App. 3d 915, 392 N.E.2d 598), and if defendant has not been properly served, any order the court enters against him is void, whether or not he had actual knowledge of the proceedings. (Washington v. Clayter (1980), 91 Ill. App. 3d 489, 414 N.E.2d 1085.) A void order may be attacked and vacated at any time, either directly or collaterally. (Mabion v. Olds (1967), 84 Ill. App. 2d 291, 228 N.E.2d 188; Home State Savings Association.) Moreover, it has been repeatedly held that the restrictions of section 72 do not apply to or affect the right to relief from a void order. (E.g., Francisco v. Francisco (1980), 83 Ill. App. 3d 594, 404 N.E.2d 537; Washington v. Clayter; but cf. Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, 413 N.E.2d 457 (section 72(6) provides a parallel mode for contesting void judgments, and an order vacating a judgment is appealable if brought pursuant to a legally sufficient section 72 petition).) Accordingly, regardless of the designation of defendant’s petition to vacate the judgment, it is not restricted by the requirements of “due diligence” and “meritorious defense.” See G. Brock Stewart, Inc. v. Valenti (1976), 43 Ill. App. 3d 673, 357 N.E.2d 180.

The record in the pending case contains the original summons, with the notation on the sheriff’s return that defendant was “not found.” Also of record is an alias summons, which indicates that a “Steve Na-, Agent,” was served on August 13,1979. Defendant’s affidavit avers that he does not know the person so served. Pursuant to section 13.2 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 13.2), an individual must be served with summons personally or through a member of his family at his usual place of abode. From the sheriff’s return it is clear that the person served was not defendant. Although plaintiff contends that defendant failed to carry his burden of overcoming the presumption that the sheriff’s return is prima facie proof of service, no such presumption of service arises where an individual defendant is not served in person. (People v. Mickow (1978), 58 Ill. App. 3d 780, 374 N.E.2d 1081.) Moreover, we note that plaintiff did not file a counteraffidavit to rebut defendant’s statement that he was not served and that he did not know the person named in the return of service. The trial court, therefore, properly examined the return of service arid defendant’s affidavit in determining that the October 31, 1979, order was void for lack of jurisdiction over defendant. See Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 366 N.E.2d 1015.

Based on the preceding analysis we could dismiss the appeal without further discussion. We will address plaintiff’s main theory on appeal, however, because he apparently believes defendant waived the right to challenge the defect in service. Plaintiff takes the position that the default judgment is merely voidable and that defendant’s error was to file an extraneous section 72 petition along with his special appearance to quash summons pursuant to section 20 of the Civil Practice Act. Plaintiff relies on the principle that a party who wishes to contest a court’s jurisdiction over him at the commencement of a lawsuit must enter a special appearance, limited to the question of jurisdiction. (Ill. Rev. Stat. 1979, ch. 110, par. 20(1).) A general appearance waives defects in service since the party is voluntarily submitting to the court’s jurisdiction. Moreover, if a party contests jurisdiction pursuant to a special appearance and raises matters which go beyond the jurisdictional issue, he transforms his “special” appearance into a general one. (See Ill. Rev. Stat. 1979, ch. 110, par. 20(1).) In the instant case, however, defendant did not somehow validate the void default judgment by filing the superfluous section 72 petition, as plaintiff contends. Discussing a similar argument in Francisco v. Francisco (1980), 83 Ill. App. 3d 594, 597, 404 N.E.2d 537, 539, we noted that such a theory

“* * o mxSapprehends the nature of the special appearance and the point of section 20. That section does not create, much less make exclusive, a procedure for attacking a void judgment. Indeed, a special appearance is only indirectly a procedure for contesting jurisdiction; fundamentally, it is a device for avoiding jurisdiction. A general appearance submits to the jurisdiction of the court—prospectively. The special appearance enables a party to present his challenge to jurisdiction without thereby creating it and waiving the point. But a general appearance does not submit to the court’s jurisdiction retroactively; it does not validate previous orders entered without jurisdiction. (Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 366 N.E.2d 1015; see Ill. Rev. Stat. 1977, ch. 110, par. 20 (“Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance” (emphasis added).) Contra, Farley v. Blackwood (1978), 56 Ill. App. 3d 1040, 372 N.E.2d 921 (alternative holding).) There is therefore no need to file a special and limited appearance in challenging past jurisdiction, unless, of course, one wishes to contest the court’s prospective jurisdiction as well.” (Emphasis added.)

Defendant, of course, is not contesting the trial court’s prospective jurisdiction over the controversy; his section 20 motion and section 72 petition simply attack the validity of the October 31, 1979, default judgment against him. We conclude that the trial court acted properly in setting aside the default judgment for voidness and permitting defendant to answer the complaint. Because the July 28,1980, vacation order left the litigation pending, we further hold that it was not a final and appealable order. We therefore dismiss this appeal.

Appeal dismissed.

LORENZ and MEJDA, JJ., concur.

        People v. Mickow also disposes of plaintiff’s groundless attack on the technical sufficiency of defendant’s affidavit in support of his motion. 58 Ill. App. 3d 780, 782-83, 374 N.E.2d 1081.1083.


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    EARL A. NINOW et al., Plaintiffs-Appellees, v. JOHN P. LOUGHNANE, JR., et al., Defendants-Appellants.
    First District (5th Division)
    No. 80-2343
    Opinion filed December 31, 1981.

      Robert K. Downs & Associates, Ltd., of Oak Park, for appellants.
    Michael Pekay and Annette M. Takeo, both of Chicago, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Subsequent to the entry of judgment by confession in favor of plaintiffs, defendants filed an amended petition to vacate the judgment (Ill. Rev. Stat. 1979, ch. 110, par. 72), or, alternatively, to open the judgment with leave to file an answer (Ill. Rev. Stat. 1979, ch. 110A, par. 276). The trial court denied the amended petition and confirmed the judgment by confession against the defendants. Defendants appeal.

The issues presented for review are: (1) whether the warrant of attorney upon which the confessed judgment was based was void; (2) whether the trial court erred in denying defendants’ petition to open the judgment pursuant to Supreme Court Rule 276 (Ill. Rev. Stat. 1979, ch. 110A, par. 276); (3) whether the trial court erred in denying defendants’ petition to vacate the judgment pursuant to section 72 (Ill. Rev. Stat. 1979, ch. 110, par. 72); and (4) whether the trial court erred by confirming the judgment by confession without setting the matter for a hearing de novo, pursuant to section 12 of “An Act relating to wage deductions * * *” (Ill. Rev. Stat. 1979, ch. 62, par. 82).

On January 24, 1976, the plaintiffs entered into an agreement with defendant Loughnane, Ltd., to sell it all of the outstanding shares of stock in their solely owned corporation. Defendants John P. Loughnane, Jr., and John P. Loughnane III were guarantors under the agreement. The sale agreement provided for a purchase price of $123,460, payable with an initial payment of $35,000 on February 1, 1976, and defendants’ judgment note for the balance of $88,460 with interest at 6% per annum. Defendants executed a judgment installment note for the $88,460 balance and %% interest per annum on the balance of principal from time to time unpaid, payable $21,000 on February 1, 1977, and $21,000 or more on the first day of each February thereafter until paid in full with final payment of principal and interest on February 1, 1981. Prepayments were subject to the following penalties: 1977—$11,200; 1978—$6,900; 1979—$3,500; and 1980—$1,200. The penalties were payable simultaneously with the payment of the final principal payment.

On March 27, 1978, defendant John Loughnane III informed plaintiffs by letter that two severe problems encountered shortly after defendants purchased the business forced them to sell it on May 15, 1977. Defendant stated that it was now known that plaintiffs had been aware of these problems prior to the sale and had concealed them. The letter further stated that the concealment mandated “a substantial reduction of the purchase price, and if such reduction is not forthcoming we will decline further payments to you.”

On May 9, 1979, plaintiffs filed their complaint to confess judgment on the note alleging that there was due on said note a balance of $88,460, interest $17,692.30, and attorney fees of $4,300 for a total of $110,452.30. Although the complaint indicates no payments on the note, in oral argument in this court counsel for plaintiffs conceded that the first installment due February 1, 1977, was in fact paid. Judgment for the full amount of $110,452.30 was entered on May 25, 1979. On August 1, 1979, summons to confirm judgment by confession directed to all defendants were served upon defendant John P. Loughnane III.

On January 28,1980, defendants filed an amended petition to vacate the judgment by confession or to open the judgment by confession with leave to file answer, supported by the affidavits of the defendants that they had a meritorious defense to plaintiffs’ claim in that the judgment installment note provided for renegotiation upon good cause shown “[i]f makers herein, are not able to make payment in full at any time within the foregoing five year period “ 0 Attached were copies of the March 27, 1978, letter of defendant John Loughnane III, the installment note, and the sale agreement.

On July 15, 1980, a hearing on defendants’ amended petition was held. A stipulation as to report of proceeding agreed to by the parties for purposes of appeal and filed as part of the record stated that both plaintiffs and defendants filed answers in open court. Plaintiffs filed an answer to defendants’ amended petition and defendants filed an answer to plaintiffs’ original complaint to confess judgment. Defendants’ answer denied paragraph 4 of plaintiffs’ complaint which had alleged that $110,452.30 including principal, interest and attorney fees was due and owing plaintiffs from defendants.

After reviewing the amended petition to vacate or open judgment and plaintiffs’ answer, as well as the answer submitted by defendants to the original complaint, the court denied defendants’ petition without hearing evidence and confirmed the judgment of $110,452.30 against defendants.

Opinion

Defendants first assert that the warrant of attorney contained in the installment note is void because its inconsistency with a typed provision calling for renegotiation if the maker is unable to make payments makes the conditions of default and the extent of their liability unascertainable from the face of the note.

The power to confess a judgment must be clearly given and strictly pursued. (Devon Bank v. Schlinder (1979), 72 Ill. App. 3d 147, 390 N.E.2d 447.) A warrant of attorney is to be construed according to the rules which apply to written contracts generally. (Wolf v. Gaines (1961), 33 Ill. App. 2d 428, 179 N.E.2d 466.) A warrant of attorney may be incorporated, as here, into a note and for purposes of construction they are to be regarded as one instrument. Sharp v. Barr (1924), 234 Ill. App. 214.

The installment note signed by defendants contains the standard acceleration and judgment by confession provisions which were part of the preprinted form. By the terms of the acceleration clause, the unpaid principal together with accrued interest becomes due upon default in the payment of any installment of principal due. The warrant of attorney clause authorizes any attorney to appear and confess judgment if this note is not paid when due. Taken together, these two provisions authorize a confession of judgment to be entered upon the failure by defendants to pay any installment of principal. Defendants do not assert that the language of these provisions is ambiguous or uncertain. Nor do we find them to be so. Nevertheless, defendants assert that the presence of an additional typed provision in the same installment note rendered the powers conferred by the warrant of attorney uncertain and thus void. That typed provision provides:

“If Makers herein are not able to make payment in full at any time within the foregoing five year period, for good cause shown, the payment of any balance remaining due at that time is subject to renegotiation between parties, interest on the unpaid balance to be 1%% over the then prime interest rate existing at First Nat’l Bank of Chicago, Ill.”

Defendants argue, based upon this provision, that the parties contemplated renegotiation if and when payment could not be made and that any default sufficient to trigger the invocation of the warrant of attorney clause could not be determined without resort to evidence de hors the installment note. Plaintiffs of course respond that the warrant of attorney to confess judgment was clearly given, properly exercised, and thus not void. They further contend that the renegotiation provision is only applicable to defendants’ inability to make payments in full of the balance of the note, and is not applicable to defendants’ inability to make any individual installment payment. The warrant of attorney clause standing alone clearly grants the power to confess judgment against defendants upon default. The parties differ, however, as to their interpretation of what constitutes a default according to the terms of the installment note. A difference in interpretation of the default terms in an instrument does not necessarily render the warrant of attorney void. (See DeGarmo v. Aldeco, Inc. (1973), 13 Ill. App. 3d 403, 300 N.E.2d 270; accord, Mid-States Finance Co. v. Redman (1969), 111 Ill. App. 2d 107, 248 N.E.2d 789.) Therefore, contrary to defendants’ assertion, the warrant of attorney included in the installment note here was not void for want of definiteness merely because the parties differ as to when the power to confess judgment could be invoked.

Defendant further contends that the warrant of attorney is void because the inconsistency between the warrant of attorney and renegotiation provisions rendered the extent of their liability unascertainable from the face of the instrument. As stated in Weber v. Towers (1904), 213 Ill. 370, 383, 72 N.E. 1070, 1074, “A judgment by confession must be for a fixed and definite sum, and not in confession of a fact, that can only be established by testimony outside of the written documents, required by the statute to be filed in order to enter up a judgment by confession.” Thus, the extent of the liability undertaken must be ascertainable from the face of the instrument in which the warrant of attorney is granted. (Grundy County National Bank v. Westfall (1971), 49 Ill. 2d 498, 275 N.E.2d 374.) Defendants rely on Grundy and State National Bank v. Epsteen (1978), 59 Ill. App. 3d 233, 376 N.E.2d 40, for their assertion that the warrant of attorney appearing in the installment note was legally insufficient. In those cases the courts held the warrants of attorney before them invalid because the instrument containing the warrant of attorney guaranteed payments of “any and all indebtedness” presently due or which might become due in the future to the extent of $50,000 in Grundy and $120,000 in State. Thus, in neither case did the instrument state a liquidated sum for which the signatory was liable at the creation of the instrument. Rather, each set forth a ceiling amount for which the signatory could become liable, and for which judgment could be confessed.

The instrument before us is similar to the retail installment sales contract considered in Sears Bank & Trust Co. v. Scott (1975), 29 Ill. App. 3d 1002, 331 N.E.2d 607. There the contract for the sale of an automobile listed various credits to the buyer and to the seller with a time price balance of $3,888 to be paid in 36 monthly installments of $108. When defendant defaulted, plaintiff repossessed the automobile and sold it to satisfy the amount due on the contract. Plaintiff apparently failed to obtain a price sufficient to liquidate the balance due, because it later caused a judgment by confession to be entered against the defendant for $919.03. The defendant buyer in Sears, like defendants here, argued that the judgment by confession was void because the amount of the debt could not be determined solely from the sales contract. The Sears court, however, held that the instrument as written established a definite sum owed at the time of its creation, and thus the warrant of attorney was not defective and the judgment by confession was not void. Similarly, the judgment note signed by defendants in this case establishes the total amount of defendants’ indebtedness to plaintiffs at the time of signature and further contains a schedule by which such payments are to be made.

Defendants further assert, however, that the extent of liability is not ascertainable from the face of the instrument because the renegotiation provision suggests that upon default the amount due under the note could be renegotiated. However, we find no merit in this contention as the renegotiation clause states that it is the “payment” of the balance and not the “amount” of the balance that is subject to renegotiation. Accordingly, the warrant of attorney here is not legally insufficient for want of definiteness.

We next consider defendants’ assertion that the judgment by confession should have been opened pursuant to Supreme Court Rule 276 (Ill. Rev. Stat. 1979, ch. 110A, par. 276). That rule allows the court to open a judgment by confession if the defendant has raised a defense on the merits to the whole or a part of plaintiff’s demand and has been diligent in presenting his motion. Both plaintiffs and defendants agree that defendants were diligent in presenting their motion. Therefore, only the substance of defendants’ motion to open the judgment need be considered.

Defendants’ motion and the attached affidavits and exhibits allege that the installment note called for renegotiation for good cause shown if payment could not be made; that shortly following the purchase of the business defendants experienced severe problems in its operation, problems which plaintiffs had knowingly concealed from them prior to the sale, necessitating the sale of the business; and that defendants were not in default. Therefore, according to defendants’ interpretation of the installment note’s terms, the power to confess judgment conferred in the warrant of attorney was prematurely invoked, as renegotiation was called for upon the inability to make payment. The premature invocation of the power to confess judgment conferred by a warrant of attorney would of course present a defense to the underlying confessed judgment, as the power to confess a judgment must not only be clearly given, it must also be strictly pursued. (Grundy County National Bank v. Westfall (1971), 49 Ill. 2d 498, 275 N.E.2d 374.) A judgment by confession under a warrant of attorney can be entered only at such time as authorized by the terms of the warrant. (See Webster Grocer Co. v. Gammel (1936), 285 Ill. App. 277, 1 N.E.2d 890.) Where a judgment by confession is authorized to be entered upon the default of a party, such default is a condition precedent to the entry of the judgment and a judgment by confession entered prior to the occurrence of this condition cannot be sustained. See Berlin v. Udell Printing Co. (1933), 271 Ill. App. 464.

Whether or not defendants are in default according to the terms of the installment note so as to justify the invocation of the power to confess judgment conferred by the warrant of attorney depends on the interpretation accorded the language of the note. The interpretation of the language of a contract, that is the determination of the meaning to be given its words, is a question of fact. (United Farm Bureau Mutual Insurance Co. v. Elder (1980), 89 Ill. App. 3d 918, 412 N.E.2d 630; 3 Corbin on Contracts §554, at 219 (1960).) When the language of a contract is ambiguous or unclear so that the intentions of the parties cannot be discerned from the contract itself, extrinsic evidence may be considered to make a proper interpretation of the contract. First National Bank v. Minke (1981), 99 Ill. App. 3d 10, 425 N.E.2d 11.

The renegotiation and acceleration clauses in the installment note, when taken together, are sufficiently unclear to warrant the introduction of extrinsic evidence to determine the intent of the parties. This is particularly true in light of the general rule that a warrant of attorney contained in a promissory note is to be strictly construed against the party for whose benefit the instrument was executed. Long v. Coffman (1923), 230 Ill. App. 527.

Therefore, defendants sufficiently raised a defense to the judgment by confession in their petition to open the judgment and the trial court improperly denied their petition. Because we have concluded that the judgment by confession should have been opened pursuant to Supreme Court Rule 276, we find it unnecessary to address the remaining issues raised.

Accordingly, the order denying defendants’ motion to open or vacate the judgment and confirming the judgment by confession is reversed and the cause remanded for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded.

SULLIVAN, P. J., and LORENZ, J., concur.


author: JUSTICE JOHNSON

text:
    ALFRED NAKIS, Plaintiff-Appellant, v. DANIEL AMABILE, d/b/a Tenement West, et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-2440
    Opinion filed December 31, 1981.

      Arthur S. Gomberg and Sheldon S. Gomberg, both of Chicago (Robert L. Caplan, of counsel), for appellant.
    Robert L. Berkover and Stern, Rotheiser and Dupree, both of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Alfred Nakis, appeals the trial court’s refusal to direct a verdict in his favor as to count I (on liability), pursuant to section 14 of article VI of the Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, par. 135), and the trial court’s granting of the defendants’ motion for a directed verdict as to count II (common law negligence).

On October 31, 1975, plaintiff filed a complaint alleging in count I that defendants were the operators of a dram shop and were engaged in selling intoxicating liquors; that on July 25, 1975, defendants, by their agents, sold to certain customers alcoholic beverages which caused them to become intoxicated; and that as a consequence, plaintiff, while a patron in the tavern, was assaulted and injured by the intoxicated customers in violation of the Dramshop Act; and in count II that, alternatively, plaintiff was a patron in the tavern, and defendants had a duty to exercise due care and caution to see that the patrons conducted themselves properly with reference to the safety of others; that defendants permitted certain patrons to threaten and become dangerous to other patrons, including the plaintiff; and that defendants should have known of the conduct of the violent patrons, and it became the duty of defendants to protect plaintiff from injury by the abusive patrons.

On appeal, plaintiff presents the following issues for review: (1) whether the court erred in directing a verdict in favor of the defendants on count II of the complaint; (2) whether the court erred in refusing to grant his motion for a directed verdict; (3) whether the court erred in not allowing him to testify as to the intoxication of a second and third individual; (4) whether the court erred with regard to absent potential witnesses; (5) whether an affirmative statement in the pleadings denying allegations can be used as evidence that the pleader had knowledge of the facts in issue; and (6) whether improper argument and comment by defense counsel constitutes reversible error.

We affirm.

The testimony at trial was as follows. Plaintiff testified that on July 25, 1975, he went to the Tenement West in Melrose Park with his cousin, Andrew Sofiakis. As they entered, there were men who checked for identification, requested admission charges, and gave them a chip that paid for the first drink. He and his cousin stopped at the bar and ordered a drink. Nakis stated that after going to the restroom he went back to the bar, took his drink, and walked toward the entrance to the dance floor. Sofiakis saw a friend and stopped to talk with her.

Plaintiff began dancing with a girl. Thereafter, because he was perspiring, he went to the bar to get some napkins. He saw a group of people at the bar, loudly laughing. He remembered having seen them there earlier when he had gone to the washroom. Plaintiff tapped one of them on the shoulder and asked for a napkin. That person turned, looked at him, and someone else pushed his face away, saying, “Get out of here.” The person who pushed his face was intoxicated and his manner of speech was slurred. Nakis turned to put his drink down and the same person hit him in the face with his fist. At least five other people became involved, jumping on his back and completely ripping off his shirt. As he struggled to his feet, he was kicked and punched by everyone. Someone hit him again in the face; he fell to the floor again and a group of people kicked and punched him.

Nakis stated that he got up again and finally said, “All I wanted was a napkin.” Then someone swung at him and five, six, or seven people again involved themselves in the fight. He grabbed the person who had hit him three times before and they fell to the floor together. When bouncers grabbed him from behind, he raised his arms to indicate that he had not initiated the fight. The other people wanted to proceed with the fight.

After the fight, the owner of the tavern took him to the restroom to clean himself. Plaintiff stated that his pants were full of blood and his shoes were cut up; and he had cuts on his back, chest, hand and palms of his hands. Plaintiff’s face was numb, swollen and disfigured.

Plaintiff went to a hospital emergency room for medical attention and later he saw a medical doctor. Subsequently, he was admitted to the hospital where he stayed for 8 days.

Plaintiff did not call his cousin to testify and gave an offer of proof as to why his cousin could not come to testify. There were no other occurrence witnesses. The defense called no other witnesses to testify.

Defendants made a motion for a directed verdict with regard to both count I and count II. The trial judge granted the motion for a directed verdict as to count II only. The jury was given two special interrogatories with the verdict forms. They answered the interrogatory that found the person who hit plaintiff three times was not intoxicated. The jury returned a verdict for defendants and against plaintiff on count I.

Plaintiff contends that the court erred in directing a verdict in favor of defendants on count II, the common law count based upon the duty of an innkeeper to use ordinary care for the safety of the patrons. Further, plaintiff asserts there was notice to the innkeepers that plaintiff might suffer injury after he was first hit in the face. Plaintiff concedes this first blow, but complains of the second and third blows in count II.

The rule is established that verdicts should only be directed “in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Plaintiff contends that the evidence he presented was sufficient to avoid a directed verdict under the Pedrick standard. We disagree.

It is axiomatic that “A complaint for negligence must set out: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from the breach.” (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617, 618.) In Gill v. Chicago Park District (1980), 85 Ill. App. 3d 903, 905, 407 N.E.2d 671, 673, the court said:

“Generally, there is no duty to protect one against the criminal attacks of third persons. [Citation.] A duty does not arise unless there are sufficient facts to put defendants on notice that an intervening criminal act is likely to occur. [Citation.] In short, the existence of a legal duty requires that the occurrence be reasonably foreseeable. [Citation.] In determining whether a legal duty exists, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequence of placing that burden on the defendant must also be taken into account. [Citation.]”

In the instant case, there was no indication of any notice to defendants that would have alerted them of the altercation. Plaintiff had ample opportunity to yell out for help or assistance. On the three occasions when he was struck by the same person, he never asked for assistance. According to plaintiff, after he was hit three times, other people became involved in the fight. Furthermore, plaintiff offered no testimony that the bouncers or the bartenders knew of this altercation in sufficient time to prevent it, nor was there testimony that there was a fight or yelling that would show that the owners of the establishment or their employees were called to the scene. Finally, the record is devoid of any evidence that shows the altercation was reasonably foreseeable by defendants or that defendants could have prevented it. Consequently, the trial court did not err by directing a verdict in favor of defendants on count II of the complaint.

Plaintiff contends the trial court erred in refusing to grant his motion for a directed verdict on count I on the issue of liability because his testimony was uncontradicted, unimpeached, and unequivocal, thereby justifying a directed verdict in his favor. Further, plaintiff’s opinion testimony that the person who struck him was intoxicated adds to his position that the court erred.

Plaintiff aptly points out that the controlling standard here is the Pedrick rule. However, the direction of a verdict in plaintiff’s favor was not mandated when plaintiff’s testimony stood unrebutted or uncontroverted. Even where testimony is uncontroverted, inconsistent inferences and conclusions may be drawn, thereby making the question one for the jury. (Ruggiero v. Public Taxi Service, Inc. (1973), 16 Ill. App. 3d 754, 758, 306 N.E.2d 567, 570.) Plaintiff’s argument was considered in Ladd v. Ruck (1969), 108 Ill. App. 2d 379, 382-83, 248 N.E.2d 147, 149, where the court stated:

“[Pjlaintiff insists that only one conclusion is warranted from the evidence * * *. This assertion is based on plaintiff’s view that because defendants offered no evidence as a defense to plaintiff’s claim or in opposition to the evidence of plaintiff, no controverted issue existed or could exist. Plaintiff believes this position to be supported by Pedrick v. Peoria & Eastern R. Co., supra, a position with which we do not agree. Facts may be undisputed or a defendant may have failed to introduce evidence in his behalf but it does not follow that issues are therefore uncontroverted. Undisputed facts may give rise to different reasonable inferences to be drawn therefrom. Genck v. McGeath, 9 Ill App2d 145, 132 NE2d 437. The question also arises as to whether undisputed facts do or do not tend to prove or disprove the issues in controversy. The Pedrick rule does not require that verdicts be directed * * * merely because a defendant has failed to introduce evidence in his own behalf or has failed to dispute facts presented by the plaintiff.”

We find the rationale in Ruck controlling. Further, we disagree with plaintiff’s contention that the jury improperly disregarded his testimony. It is well established that jurors are the sole judges of the credibility of witnesses and the weight to be given their testimony. (Feldman v. Fitzpatrick (1973), 11 Ill. App. 3d 617, 624, 297 N.E.2d 264, 269.) From our review of the record, we cannot say that the jury’s finding was against the manifest weight of the evidence. Consequently, the trial judge did not err by submitting the issue of liability to the jury.

Plaintiff contends the trial court erred in not allowing him to testify as to the intoxication of a second and third individual. Plaintiff reasons that since the jury failed to find the person who assaulted him intoxicated, then he was deprived of two causes of action by the trial court’s failure to admit plaintiff’s opinion testimony that two other persons were intoxicated.

At trial, the judge allowed plaintiff to testify as to the' intoxication of the person who assaulted him. However, the judge did not allow plaintiff to testify as to the intoxication of a second and third individual. The judge indicated that this opinion testimony concerning two other individuals would not be allowed because plaintiff did not sufficiently identify those persons, what they were doing, what they were wearing, and whether they were the same persons who were on top of him as he was fighting.

In order to prove intoxication in a dramshop suit, plaintiff must give evidence that the alleged intoxicated person consumed alcoholic liquor, together with evidence of unusual behavior or opinion evidence that he was drunk, which would entitle a jury, under such circumstances, to conclude that the person was intoxicated. (Weiner v. Trasatti (1974), 19 Ill. App. 3d 240, 244, 311 N.E.2d 313, 317.) From a review of the record, we find that plaintiff did testify as to the alleged unusual behavior of two or three people who were a part of the group that beat him and that they were drinking beer. From this, the jury could conclude whether the persons were intoxicated. Consequently, we hold that the trial judge did not err by refusing further opinion testimony.

Plaintiff contends the trial court erred in permitting defendants to argue the adverse evidence presumption while refusing to allow plaintiff this argument. This presumption should not operate against plaintiff because defendants owners had ample opportunity to secure names of witnesses to the incident. Thus, the jury was entitled to think that since the defense offered no evidence, the evidence would probably have been adverse. Plaintiff also claims that his offer of proof as to the absence of Sofiakis was erroneously rejected by the court as hearsay, but the court allowed defendants to argue the absence of Sofiakis.

Plaintiff further asserts that defendants’ answers denying allegations of the complaint are admissions of knowledge of the matters contained therein; consequently, it was error when the court refused to take judicial notice of these denials in order to show that defendants had this knowledge but did not testify.

An unfavorable evidentiary presumption arises if a party, without reasonable excuse, fails to produce evidence which is under his control. (Berlingers, Inc. v. Beef’s Finest, Inc. (1978), 57 Ill. App. 3d 319, 325, 372 N.E.2d 1043, 1048.) This presumption usually operates in favor of the plaintiff. Once a prima facie case is established, the trier of fact may infer that available evidence not produced by defendant would be unfavorable to defendant. Fuery v. Rego Co. (1979), 71 Ill. App. 3d 739, 744, 390 N.E.2d 97, 101.

In the case at bar, plaintiff argues that the unfavorable evidentiary presumption did not arise because he gave, by an offer of proof, a reasonable excuse for failure to bring Sofiakis to court. Plaintiff admits that this offer of proof was hearsay but insists that it was error for defense counsel to comment on Sofiakis’ absence. We disagree with plaintiff. The failure of a litigant to call a witness within the control of such litigant is a proper subject of comment. (In re Estate of Sandusky (1943), 321 Ill. App. 1, 16, 52 N.E.2d 285, 291.) It may be open to doubt whether this rule of law applies to the failure of plaintiff to call as witnesses Dr. Broder and Dr. Karis, because it might be said that they were not under plaintiff’s control. However, we believe that this rule of law properly applies to the failure of plaintiff to call his cousin, Sofiakis, as a witness. When neither party calls an available witness, whatever presumption will be indulged in from the failure to call such witness will be against the party to whose interest such witness would most likely incline, and failure to produce such witness is, in such case, a proper subject of comment. 321 Ill. App. 1, 17.

Applying the above rule to this case, we hold that defense counsel’s remarks were not improper. Further, the trial court did not err by refusing to allow plaintiff’s offer of proof.

As to plaintiff’s contention concerning judicial notice of defendants’ denials, it is axiomatic that the court may take judicial notice of matters of public record. (American National Bank & Trust Co. v. City of Chicago (1971), 4 Ill. App. 3d 127, 130, 280 N.E.2d 567, 569.) However, our research reveals np dispositive Illinois cases which authorize a judge to take judicial notice of defendants’ denials in order to show that defendants had knowledge of the matters contained in the complaint. Therefore, the trial court did not err by refusing to take judicial notice of defendants’ denials.

Finally, plaintiff contends there was improper conduct by defense counsel. Plaintiff maintains that defense counsel’s statement, “I can’t tell you where my clients are,” sought sympathy from the jury and was so prejudicial as to require a new trial.

An examination of the record reveals that plaintiff objected to this comment and the objection was sustained by the trial court. This corrective action taken by the court, in our opinion, rendered harmless, in the context of the whole trial, any error that might have arisen as a result of this statement. (Funk v. Venture Stores, Inc. (1981), 94 Ill. App. 3d 115, 121, 418 N.E.2d 498, 503.) As the court stated in Mayer Paving & Asphalt Co. v. Carl A. Morse, Inc. (1977), 48 Ill. App. 3d 73, 80, 365 N.E.2d 360, 365-66, “A trial need not be free from error. Our concern is whether there was error which prejudiced the party seeking review or which unduly affected the outcome at trial.” Since the error was cured at trial, we cannot say that defense counsel’s comment by itself so materially prejudiced plaintiff that he was denied a fair trial.

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

Judgment affirmed.

ROMITI, P. J., and JIGANTI, J„ concur.


author: JUSTICE JIGANTI

text:
    SALLY PODGORSKI PORTER, Special Adm’r of the Estate of Arthur M. Podgorski, Deceased, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 80-2608
    Opinion filed December 31, 1981.
    Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Judith E. Fors, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Tobin, and Richard H. Donohue, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

Sally Podgorski Porter, special administrator of the estate of her deceased husband, Arthur M. Podgorski, brought this action against the Ford Motor Company to recover damages for breach of certain implied warranties in the design and manufacture of a 1972 Ford Pinto station wagon. (Ill. Rev. Stat. 1979, ch. 26, pars. 2—314, 2—315.) Arthur Podgorski was fatally injured when the 1972 Ford Pinto station wagon which he was driving was struck by a vehicle driven by Charles Rainwater.

Immediately after the accident, a lawsuit was filed on behalf of Podgorski’s estate by its administrator, the National Bank of Bloomington. The action sought recovery from Charles Rainwater. As a result of this litigation, National Bank of Bloomington on behalf of the estate entered into and executed an “Administrator’s Release” on February 9, 1977. The language of this release will be considered momentarily.

On October 11,1978, the instant cause of action was filed against the Ford Motor Company. Ford moved to dismiss the complaint on the grounds that the release executed on February 9, 1977, operated as a bar to any and all claims arising out of the accident on October 12, 1974. The trial court granted the defendant’s motion to dismiss on these grounds.

The sole issue presented for review is whether the trial court was correct in holding that the “Administrator’s Release” given in settlement of the prior lawsuit operates as a bar to the instant action against the Ford Motor Company. Our task as a reviewing court when confronted with such an issue is to construe the express terms of the “Administrator’s Release” and give these terms their appropriate legal effect. (Florkiewicz v. Gonzalez (1976), 38 Ill. App. 3d 115, 347 N.E.2d 401.) The relevant terms of the release are as follows:

“KNOW ALL MEN BY THESE PRESENTS, that the undersigned, National Bank of Bloomington, as Administrator of the Estate of Arthur M. Podgorski, deceased, in consideration of the payment of the sum of Forty Nine Thousand and no/100 Dollars ($49,000.00) to me in hand paid by Charles W. Rainwater and State Farm Insurance Company, the receipt of which is hereby acknowledged, the undersigned does hereby release, acquit and discharge the said Charles W. Rainwater and State Farm insurance Company and any person, firm or Corporation liable in his stead of any and from all claims of action, causes of action, damages or demand of whatever name or nature in any manner arisen, arising or to grow out of any and all occurrences and especially due to the death of Arthur M. Podgorski, which occurred October 12, 1974 at or near Saybrook, Illinois.”

We believe that the language of the document is clear and unambiguous. (4 Williston, Contracts §609, at 403 (3d ed. 1961).) The document is entitled “Release.” The intent of the parties to the document is to “release, acquit and discharge.” The things released are “all claims of action, causes of action, damages or demand of whatever name or nature in any manner arisen, arising or to grow out of any and all occurrences and especially due to the death of Arthur M. Podgorski * * The beneficiaries of the Release are “Charles W. Rainwater and State Farm Insurance Company and any person, firm or corporation liable in his stead.”

A document, like the above, which has unqualified language of release; which releases all causes of action; and which releases both the direct beneficiary of the release and “any person, firm or corporation liable in his stead” is known as a full release. (Artoe v. Navajo Freight Lines, Inc. (1978), 65 Ill. App. 3d 119, 382 N.E.2d 492.) The legal effect of a full release is twofold. First, a full release of one indivisible injury to any of those concurring in its cause releases both joint and independent concurrent tortfeasors. (Artoe v. Navajo Freight Lines, Inc. (1978), 65 Ill. App. 3d 119, 123, 382 N.E.2d 492, 496.) Second, a full release acts as a complete satisfaction for a single, indivisible injury. (Alberstett v. Country Mutual Insurance Co. (1979), 79 Ill. App. 3d 407, 398 N.E.2d 611.) It serves as a final bar to further legal action on the part of the plaintiff because in the eyes of the law all of the plaintiff’s injury is compensated. Those tortfeasors paying for the satisfaction can be said to have paid as well for the damages, if any, caused by nonpaying negligent parties. Alberstett v. Country Mutual Insurance Co. (1979), 79 Ill. App. 3d 407, 410, 398 N.E.2d 611, 613.

Applying the above law to the facts in this case, we believe that the trial court was correct in holding that the “Administrator’s Release” given in settlement of the prior lawsuit operates as a bar to the instant action against the Ford Motor Company. There is no reservation contained in the release or qualified language which would lead us to conclude otherwise.

The plaintiff makes a cogent argument in an attempt to stave off this rather inevitable conclusion that under Illinois law the immediate case is barred by the full release. The plaintiff has conceded that none of his cited cases involve a full release so are not factually consistent with the instant cause. However, the plaintiff still argues that we should limit our inquiry to the intent of the parties to the release and not consider the words of the integrated writing as controlling. The plaintiff contends that the term “release” and the words used in the release should not have the strict, formalistic legal result of barring all further causes of action. Rather, the plaintiff urges us to conclude that only the immediate parties to the instrument should be released.

We do not agree with the plaintiff that we should retreat from the traditional rule which has long and consistently been applied in Illinois that the release of one joint tortfeasor releases all. (Guth v. Vaughan (1923), 231 Ill. App. 143; Tidwell v. Smith (1960), 27 Ill. App. 2d 63, 169 N.E.2d 157.) However, we note that the result for which the plaintiff argues can now be achieved under Illinois law which post-dates the instant cause of action. Ill. Rev. Stat. 1979, ch. 70, par. 302(c).

For the above reasons we affirm the judgment of the circuit court.

Affirmed.

ROMITI, P. J., and LINN, J., concur.


text:
    BRINK’S, INCORPORATED, et al., Plaintiffs-Appellees, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellant.—(WELLS FARGO ARMORED SERVICE CORPORATION, Intervening Defendant-Appellant.)
    First District (4th Division)
    No. 80-2892
    Opinion filed December 31, 1981.
    Rehearing denied March 4, 1982.

      Tyrone C. Fahner, Attorney General, of Chicago (Hercules F. Bolos, Mary C. Ubatuba, and Thomas J. Russell, Assistant Attorneys General, of counsel), for appellant Illinois Commerce Commission.
    Howard Arvey, Nathan M. Cohen, Charles J. O’Connor, and Donald F. Spak, all of Arvey, Hodes, Costello & Burman, of Chicago, and David E. Wells, of Atlanta, Georgia, for appellant Wells Fargo Armored Service Corporation.
    Thomas G. Lyons, Daniel W.'Coyne, and Patrick L. Moore, all of O’Keefe, Ashenden, Lyons and Ward, of Chicago, for appellee Brink’s, Incorporated.
    Thomas J. Heneghan, of Rock, Fusco, Reynolds and Heneghan, and Michael F. Sheehan, Jr., of Deming and Sheehan, both of Chicago, for appellee Purolator Security, Incorporated.
   JUSTICE JOHNSON

delivered the opinion of the court:

Appellants, Illinois Commerce Commission (Commission) and Wells Fargo Armored Service Corporation (Wells Fargo), appeal the decision of the circuit court of Cook County setting aside a Commission order granting a contract carrier permit to Wells Fargo.

On June 18, 1976, Wells Fargo applied to the Commission for a permit under section 18—302 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 951/2, par. 18—302) to operate as a contract carrier of valuable property in armored vehicles in Cook, Lake, Du Page and Will Counties. Pursuant to Commission rule, six existing carriers were allowed to intervene and those intervening included Brink’s, Incorporated (Brink’s), Purolator Security, Incorporated, and Purolator Courier Corporation.

Hearings were held during 1976,1977 and 1978, generating over 7000 pages of transcript. The record was marked “heard and taken” on February 9, 1978. The full Commission considered oral arguments on September 27, 1978. On May 16, 1979, the Commission granted the application and issued a contract carrier permit to Wells Fargo. Brink’s and Purolator Security appealed to the circuit court of Cook County and requested a stay of the Commission’s order. The stay was allowed, and the stay order was affirmed on appeal. (Brink’s, Inc. v. Illinois Commerce Com. (1979), 79 Ill. App. 3d 275, 398 N.E.2d 296.) On October 17, 1980, the circuit court set aside the order of the Commission for the reasons set forth in its decision on review. Wells Fargo and the Commission appealed.

Appellants present the following issues for review: (1) whether prior to issuing a contract carrier permit, section 18—302 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 951/2, par. 18—302) requires the Commission to make express findings concerning (a) unmet shipper needs for carrier service and (b) the inadequacy of existing service; (2) whether the Commission’s order contains findings concerning shipper needs for armored carrier services; (3) whether the trial court erred in taking judicial notice of matters outside the Commission’s certified record, over objection, without an opportunity for rebuttal, and in disregard of evidence of record; (4) whether the Commission’s order is lawful and reasonable; and (5) whether Brink’s and Purolator have standing to appeal the Commission’s order.

We reverse.

Law of Common and Contract Carriers

Before discussing the issues raised by this appeal, it is appropriate that we discuss the definitions and law of common and contract carriers.

A contract carrier is defined as “any person, who under individual written bilateral contracts, transports property over the highways of this State by motor vehicle for-hire.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 951/2, par. 18—100(10).) This contrasts with the definition of common carrier which is “any person who undertakes to transport property over the highways of this State for the general public by motor vehicle for-hire, whether over regular or irregular routes.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 951/2, par. 18—100(9).

Common carriers serve the needs of the general public. They are prohibited from unjustly discriminating or establishing undue or unreasonable preferences to any person, place, or “description of traffic.” (Ill. Rev. Stat. 1977, ch. 951/2, par. 18—313.) Their rates must be just and reasonable (Ill. Rev. Stat. 1977, ch. 951/2, par. 18—310), and a schedule of those rates must be filed with the Commission (Ill. Rev. Stat. 1977, ch. 951/2, par. 18—501). Finally, common carriers must carry insurance to protect shippers from loss or damage to cargo. (Ill. Rev. Stat. 1977, ch. 951/2, par. 18—701.) In contrast, contract carriers serve particular types of shippers and are not required to serve the general public. They are not bound by the prohibition against discrimination and preferences in rates and are not required to carry insurance on cargo. In short, the individual contract determines the relationship between a contract carrier and its shipper. Allied Delivery System, Inc. v. Illinois Commerce Com. (1981), 93 Ill. App. 3d 656, 659, 417 N.E.2d 777, 779-80.

Different standards govern the issuance of certificates to common carriers and permits to contract carriers. The standard for issuance of certificates to common carriers is public convenience and necessity. Section 18—301 provides in pertinent part that:

“(a) 999 [I]t shall be unlawful for any common carrier of property by motor vehicle to operate 9 9 9 without first having obtained from the Commission a certificate 9 9 9 declaring that public convenience and necessity require such operation. The Commission shall issue a certificate to any qualified applicant therefor after hearing, pursuant to an application filed, authorizing the whole or any part of the operation covered by the application, and may attach to the exercise of the rights and privileges granted by such certificate such terms and conditions as the public convenience and necessity may require, if it is found that the applicant is fit, willing and able properly to perform the service proposed and to conform to provisions of this Chapter and the requirements, rules and regulations of the Commission thereunder, and that the proposed service, to the extent authorized by the certificate, is required by the present and future public convenience and necessity, otherwise such application shall be denied. In determining whether or not a certificate of public convenience and necessity shall be issued, the Commission shall give due consideration among other factors as to whether or not the granting of the authority of the proposed service would recognize and preserve the inherent advantages of, and foster sound economic conditions in, such transportation and among such carriers in the public interest, and whether or not the granting of the authority for the proposed service would tend to promote safe, adequate, economical and efficient service by motor carriers of property for-hire, provided however, that the mere existence of a competing transportation service in the area sought to be served shall not in and of itself be proof sufficient to support a denial of the existence of the present or future public necessity and convenience. The order of the Commission granting or denying a certificate shall set forth the specific findings of fact on which such order is based.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 951/2, par. 18—301.

In McMann v. Illinois Commerce Com. (1967), 38 Ill. 2d 126, 230 N.E.2d 197, our supreme court held that a finding of inadequate existing service was not essential to a Commission order granting a certificate of public convenience and necessity. In McMann, Springfield Van and Storage Co. had filed for a certificate to operate as a common carrier of household goods and used office furniture and equipment. The Commission granted the certificate finding the operation consistent with the public interest and that there was a present and future need for the proposed services. Plaintiffs, who had intervened to oppose the application, argued that such a grant of authority required a specific finding of inadequacy of existing service. In affirming the Commission order, our supreme court stated:

“The requirement of a Commission finding that existing service is inadequate was developed in those cases where existing carriers or utilities have been held to be entitled to territorial protection under the so-called ‘first in the field’ doctrine. [Citations.] This theory is based on a consideration of the time and money expended by the pioneer in developing its business and rendering adequate service to the public. [Citations.]
Cases requiring specific findings of inadequacy involved common carriers over regular routes only or utilities confined to a definite area such as electric, gas, water or sewer service. The authority here sought is to provide service over irregular routes all over the State of Illinois. Plaintiffs have not cited nor have we found any case involving common carriers over irregular routes wherein a failure to make the specific finding of inadequacy of service by existing carriers resulted in a reversal of a Commission order. 999 The Commission did make a specific finding in its original order that the greater weight of the evidence established that other carriers in the same territory were unable to meet the public demand for such services, and in its order on rehearing it made a finding of need for additional service which implies an inadequacy of existing service. We do not think that the failure to make a specific finding of inadequacy was fatal to the Commission’s order.” 38 Ill. 2d 126, 128-29.

The standard for the issuance of permits to contract carriers is that the proposed service will be consistent with the public interest. Section 18—302 of the Act provides in pertinent part that:

“(a) 9 9 9 [I]t shall be unlawful for any contract carrier of property by motor vehicle to operate or furnish service 999 without first having obtained from the Commission- a permit 9 9 9. The Commission shall issue a permit to any qualified applicant therefor after hearing, pursuant to an application filed * * * if it is found that the applicant is fit, willing and able properly to perform the service proposed and to conform to the provisions of this Chapter, and the requirements, rules and regulations of the Commission thereunder and that the proposed service, to the extent authorized by the permit, will in the judgment of the Commission be consistent with the public interest; otherwise such application shall be denied; 9 9 “.In determining whether or not a permit shall be issued, the Commission shall give due consideration among other factors as to whether or not the granting of the authority For the proposed service would recognize and preserve the inherent advantages of, and foster sound economic conditions in such transportation and among such carriers in the public interest, and whether or not the granting of the authority for the proposed service would tend to promote safe, adequate, economical, and efficient service by motor carriers of property for-hire; provided further, that the mere existence of a competing transportation service in the area sought to be served shall not in and of itself be proof sufficient to support a finding of inconsistency with the public interest. The order of the Commission granting or denying a permit shall set forth the specific findings of fact on which such order is based.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 951/2, par. 18—302.

This court has interpreted section 18—302 of the Act in two recent cases. In Allied Delivery System, Inc. v. Illinois Commerce Com. (1981), 93 Ill. App. 3d 656, 417 N.E.2d 777, this court addressed the issue of what standards govern the Commission’s decision to grant or deny a permit for contract carrier authority. This court found guidance in the expression of Illinois public policy in relation to the transportation of property which is embodied in section 18—101. (93 Ill. App. 3d 656, 663.) This section provides in pertinent part as follows:

"It is hereby declared to be the policy of the State of Illinois to supervise and regulate the business of the transportation of property for-hire by motor vehicle upon and over the public highways of this State in such manner as to (1) recognize and preserve the inherent advantage of, and foster sound economic conditions in, such transportation and among such carriers in the public interest: (2) promote adequate, economical, and efficient service by such motor carriers, and reasonable charges therefor, without unjust discriminations, undue preferences or advantages, and unfair or destructive competitive practices: (3) improve the relations between and coordinate transportation by and regulation of, such motor carriers and other carriers: (4) develop and preserve a highway transportation system properly adapted to the needs of commerce and the state: and (5) co-operate with the federal government and the several states, and the duly authorized officials thereof, and with any organization of motor carriers in the administration and enforcement of the regulatory statute; * 9 9.” Ill. Rev. Stat. 1977, ch. 951/2, par. 18—101.

Illinois public policy must be considered in conjunction with the express standards for granting a contract carrier permit as stated in section 18—302(a) (Ill. Rev. Stat. 1977, ch. 951/2, par. 18—302(a); Allied Delivery System, Inc. v. Illinois Commerce Com. (1981), 93 Ill. App. 3d 656, 663).

In Carlson Transport, Inc. v. Illinois Commerce Com. (1981), 93 Ill. App. 3d 793, 416 N.E.2d 1239, this court held that section 18—302 required two findings for the issuance of a permit: (1) that the applicant is fit, willing and able to perform the service proposed, and (2) that the grant will in the judgment of the Commission be consistent with the public interest. (93 Ill. App. 3d 793, 795.) We noted that “While no Illinois Court has had to interpret the term ‘consistent with the public interest’ as utilized in section 18—302, other States accord that term a broad interpretation.” (93 Ill. App. 3d 793, 796.) “Consistent with the public interest” has been held to mean not detrimental to the public and not contrary to public policy as set forth in the Motor Carrier Act. A showing of consistent with public interest is a lesser standard than the showing of public convenience and necessity required under section 18—301. The determination of what constitutes public convenience and necessity and what constitutes consistent with the public interest is within the discretionary powers of the Commission. The Commission’s expertise in deciding what is consistent with public interest in petitions pursuant to section 18—302 must not be set aside unless it is clearly against the manifest weight of the evidence. 93 Ill. App. 3d 793, 796.

The principal issue raised by this appeal is whether the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 951/2, par. 18—100 et seq.) requires the Commission to make express findings concerning unmet shipper needs and the inadequacy of existing service before issuing a contract permit.

In its order of May 16, 1979, the Commission made the following findings:

“(7) four officers and/or employees of Wells Fargo as well as eleven shipper witnesses from banks, savings and loan associations, retail department stores, a drug clinic, a jeweler, and other businesses appeared and testified in support of the instant application for a contract permit, * * *;
(8) nineteen witnesses who were employed in various capacities by the four intervening carriers appeared to oppose the application
(9) Dr. Leon N. Moses and Dr. Alfred A. Kuehn appeared and were allowed to testify as expert witnesses and each expressed his opinions to support the respective position of his client(s), including opinions as to the ultimate issues of the case, * * *;
(10) shippers reasonably seeking contract carriage are entitled to the personalized flexible service normally associated with contract carriage, and the record shows that shippers who seek to use armored carrier service frequently have special needs for unscheduled service to meet unusual business contingencies, as well as particular time schedule requirements including a desire for either early or late pick-ups and deliveries to meet either cash flow or deposit credit requirements;
(11) the entry of Wells Fargo would result in more trucks available to serve the market and that would result in an increased supply of routes generally available throughout the four county area;
(12) with more routes throughout the area forming a tighter network, more potential users would necessarily be along routes and theref ore would be more likely to obtain service to meet their needs;
(13) the testimony of the shipper witnesses, the statistical and econometric data admitted into evidence support the various opinions expressed by Wells Fargo’s expert witness, Dr. Alfred A. Kuehn, and further show that there is a potential market for additional armored carrier service in the four county area and that the public interest will be served by the entry of another carrier which would be willing and able to provide a transportation service of these valuable commodities and which has sufficient experience and knowledge of the necessary security measures to provide such service safely and efficiently;
(14) the evidence discloses that there are other carriers operating within the Illinois Counties of Cook, Du Page, Lake and Will which are transporting the proposed commodities pursuant to individual written bilateral contracts with their shippers, engaging in competitive bidding, and providing a service similar to that proposed by Applicant;
(15) neither the evidence adduced by the intervening carriers nor the opinions expressed by their expert witness, Dr. Leon N. Moses, nor the arguments set forth in their attorneys’ post hearing briefs, persuade the Commission that the entry of an additional carrier in the four county area will result in destructive competition that will cause a deterioration in service quality and consequent harm to these existing carriers and the shipping public;
(16) the evidence shows that a grant of contract carrier authority to Applicant is consistent with a public interest in that it will tend to promote safe, adequate, economical and efficient service by motor carriers; *

The circuit court set aside the Commission order, stating:

“However, nowhere are there any findings by defendant Commission that there is a distinct need for the proposed contract carrier service in the four county area, that the present contract carriers are unable or unwilling to meet that need or that a particular class or classes of shippers are in need of the specialized service proposed by Wells Fargo which the other carriers are unable or unwilling to perform. ft ft ft
° * * [I]f the Commission does not make findings of fact upon the principal issues, the Court cannot independently search the record to determine whether it discloses facts which if they had been found by the Commission, would sustain its decision. [Citation.] ft ft ft
Although the Court could possibly remand the matter back to the Commission if it failed to consider evidence that the law required it to consider, the Court cannot remand where the Commission has failed to make essential findings. The only alternative permitted to a Court by law, is to reverse the order of the Commission.”

We find no support for the proposition that Illinois law requires express findings of unmet shipper needs and inadequate existing service before a contract carrier permit may be issued where the proposed service would compete only with services provided by other contract carriers. We have examined cases from other jurisdictions in which the grant or denial of a permit to operate as a contract carrier has been challenged.

Indiana

Indiana courts have decided that findings of distinct needs and inadequate existing service must be shown to justify the granting of a contract carrier permit. However, two points must be noted: (1) the applicable Indiana law requires such findings.

“In determining whether requested contract authority should be granted, the commission shall * * * consider the following factors: ft ft ft
(b) The effect of granting the requested authority on existing transportation, and particularly whether the granting of such authority will seriously impair such existing service and will unreasonably impair the efficient public service of any certificated common carrier by motor vehicle, or by railroad, then adequately serving the same territory;
(c) Whether or not any certificated common carrier by motor vehicle, or by railroad, then serving the same territory, will furnish transportation services designed to meet the distinct need of the supporting contract shipper or shippers; * * *.” (Ind. Code Ann. §8—2—7—20 (Burns 1981 Supp.).)

In contrast, Illinois law requires that the Commission consider

“* * * whether or not the granting of the authority for the proposed service would recognize and preserve the inherent advantages of, and foster sound economic conditions in such transportation and among such carriers in the public interest, and whether or not the granting of the authority for the proposed service would tend to promote safe, adequate, economical and efficient service by motor carriers of property for-hire * * *.”(Ill. Rev. Stat. 1977, ch. 951/2, par. 18—302(a).)

And (2) the Indiana statute is concerned with the effect that a grant of contract carrier authority will have on existing common carriers not on other contract carriers. In the instant case, the Commission found:

“(14) the evidence disclosed that there are other carriers operating within the Illinois counties of Cook, Du Page, Lake and Will which are transporting the proposed commodities pursuant to individual written bilateral contracts with their shippers * * *.”

Thus, other contract carriers but not common carriers would be affected by a grant of contract carrier authority to Wells Fargo.

The Indiana court first interpreted the minimal burden of proof necessary for a contract carrier permit in Graves Trucking, Inc. v. B. G. Trucking Co. (1972), 151 Ind. App. 563, 280 N.E.2d 834. The court noted that the statutory language governing contract carrier permits was the same or similar in Federal and Indiana statutes. Quoting Interstate Commerce Com. v. J-T Transport Co., Inc. (1961), 368 U.S. 81, 7 L. Ed. 2d 147, 82 S. Ct. 204, the Indiana court held that:

“The proper, procedure, we conclude, is for the applicant first to demonstrate that the undertaking it proposes is specialized and tailored to a shipper’s distinct need. The protestants then may present evidence to show they have the ability as well as the willingness to meet that specialized need. If that is done, then the burden shifts to the applicant to demonstrate that it is better equipped to meet the distinct needs of the shipper than the protestants.” (151 Ind. App. 563, 568-69, 280 N.E.2d 834, 837.)

The Indiana court further stated that:

“* * * [SJome minimum standards of proof should be established to prevent the development of a practice whereby the supporting shippers may designate and select at will the carriers that they prefer to handle their commodities. This not only would work a great disadvantage upon the common carriers authorized to handle such commodities but would usurp the statutory duty of the Public Service Commission of Indiana and circumvent the clear intent of the Legislature. Selection of a favorite contract carrier by shippers without some standards of proof to protect the public could eventually precipitate an erosion of common carrier service to the public which the statute prohibits.” (151 Ind. App. 563, 572, 280 N.E.2d 834, 839.)

Again, we note that in requiring findings of need and inadequacy, the Indiana court was concerned with the effect on common carrier service not on other contract carriers. See also Fred J. Stewart Trucking, Inc. v. Bunn Trucking Co. (1972), 151 Ind. App. 157, 278 N.E.2d 310.

North Carolina

North Carolina requires a showing of need and inadequacy by rule of the Utilities Commission. Rule R2-15(b) provides:

“If the application is for a permit to operate as a contract carrier, proof of a public demand and need for the service is not required; however, proof is required that one or more shippers or passengers have a need for a specific type of service not otherwise available by existing means of transportation * ° 0 (State ex rel. Utilities Com. v. American Courier Corp. (1970), 8 N.C. App. 367, 374, 174 S.E.2d 808, 812-13.)

North Carolina law requires that the Utilities Commission consider among other factors:

“(2) Whether the proposed operations will unreasonably impair the efficient public service of carriers operating under certificates, or rail carriers, « # «
(5) Whether the proposed operations will be consistent with the public interest * 0 N.C. Gen. Stat, §62—262(i) (1975).

In State ex rel. Utilities Com. v. American Courier Corp. (1970), 8 N.C. App. 367, 174 S.E.2d 808, American Courier, a contract carrier, challenged the grant of contract carrier authority to First Courier Corporation as not consistent with public interest. First Courier proposed to transport commercial papers, cash letters, audit and accounting media and other business records, documents and supplies used in processing. In upholding the grant of authority, the court stated:

“The protestant, American Courier Corporation, bases much of its opposition to the granting of the permit to the applicant on the ground that if the permit were granted it would then have competition in the area of transportation. Protestant contends that such competition should not be allowed since the granting of the proposed application would adversely affect the business of American Courier. We do not feel that this is a sufficiently compelling reason to prohibit the entrance of other contract carriers in the field of transporting bank documents and other commodities. In Utilities Commission v. Coach Co., 261 N.C. 384, 134 S.E.2d 689 (1964), our Supreme Court, speaking through Moore, J., said: ‘There is no public policy condemning competition as such in the field of public utilities; the public policy only condemns unfair or destructive competition.’ This Court, in the recent case of Utilities Comm. v. Petroleum Carriers, 7 N.C. App. 408, 173 S.E.2d 25 (1970), citing the above passage from the Coach Co. case, stated: ‘The possibility that a transfer of authority to a more competitive carrier will adversely affect existing carriers does not make such a transfer contrary to “the public interest” as a matter of law.’ So, too, in the present case, the Utilities Commission’s action in authorizing the granting of the permit to the applicant does not denominate the competition generated by that action unfair or against the ‘public interest.’ ” 8 N.C. App. 367, 375-76, 174 S.E.2d 808, 820.

Other North Carolina cases are State ex rel. Utilities Com. v. Petroleum Transportation, Inc. (1968), 2 N.C. App. 566, 163 S.E.2d 526; State ex rel. Utilities Com. v. American Courier Corp. (1970), 8 N.C. App. 358, 174 S.E.2d 814; State ex rel. Utilities Com. v. Kenan Transport Co. (1971), 10 N.C. App. 626, 179 S.E.2d 799.

Alabama

The Alabama Supreme Court has decided several cases in which a grant or denial of contract carrier authority has been challenged. (Ross Neely Express, Inc. v. Hornady Truck Lines, Inc. (Ala. 1980), 387 So. 2d 782; Redwing Carriers, Inc. v. Alabama Public Service Com. (Ala. 1978), 356 So. 2d 129; Jefferson Trucking Co. v. Alabama Public Service Com. (Ala. 1977), 347 So. 2d 372; Alabama Public Service Com. v. Consolidated Transport Co. (1970), 286 Ala. 323, 239 So. 2d 753; Osborne Truck Lines, Inc. v. Alabama Public Service Com. (1969), 284 Ala. 166, 223 So. 2d 284.) Alabama law requires the Public Service Commission to determine whether the proposed operation will be consistent with the public interest. (Ross Neely Express, Inc., at 785.) This determination is made by applying a two-pronged test:

“[A] contract carrier permit should be issued when 1) a common carrier cannot extend the preferential service or other advantages of a contract carrier; and 2) the granting of such a permit will not tend to materially depreciate the ability of the protesting common carriers to serve the public.” Ross Neely Express, Inc., at 785.

As in the Indiana and North Carolina cases, Alabama law is concerned with protecting common carriers from competition, not with protecting contract carriers from competition with other contract carriers. In Osborne Truck Lines, Inc., the court commented that:

“* * ° [A]ny erosion or impairment of the financial ability of the common carriers to perform by taking away from them lucrative business and giving it to a contract carrier, particularly to enable the customer to meet competition, or possibly to gain some advantage, is not consistent with public interest. Such public interest as related to the business world is dependent on an adequate and efficient motorized common carrier system which should not be potentially weakened or impaired by the issuance of contract carrier permits that have a tendency to decrease the volume and remuneration of such carriers that is needed to sustain efficient common carrier service.” (284 Ala. 166, 170, 223 So.2d 284, 288.)

Nebraska

In Samardick of Grand Island-Hastings, Inc. v. B.D.C. Corp. (1968), 183 Neb. 229, 159 N.W.2d 310, Samardick petitioned to engage in operations as a contract carrier of cash, letters, checks, and other commercial papers, data processing material and related documents and records. Its application was opposed by B.D.C., a common carrier. The applicable Nebraska law is similar to Illinois law. Nebraska law provides that a permit will be granted

«o * * if the applicant is found to be fit, willing, and able to perform the service in accordance with statutory requirements and the rules and regulations of the commission, and that the operation authorized will be consistent with the public interest. In determining the question of public interest, the commission is required to consider the number of competing operators, and not the number of motor vehicle units being operated by competing operators.” 183 Neb. 229, 236, 159 N.W.2d 310, 316.

The Nebraska court distinguished “consistent with public interest” from “public convenience and necessity”:

“The former means only that the proposed contract carrier service does not conflict with the legislative policy of the state in dealing with transportation by motor carriers, while the latter requires a consideration of the present service being rendered in the territory, the need of additional service, and the facilities which the applicant can provide. Consistent with the public interest simply means that it is not contrary to the public policy of the state as expressed in the Motor Carrier Act. [Citation.]
It is the general rule that an applicant for a contract carrier permit must show that the proposed service is specialized and fits the need of the contract shippers. If the service can be performed as well by common carriers a need for a contract carrier is not established. * * * The evidence as to where the public interest lies in the present case is in conflict. The determination of the public interest in such a case is one that is peculiarly for the determination of the commission.” (183 Neb. 229, 237, 159 N.W.2d 310, 316.)

Pennsylvania

In Brink’s, Inc. v. Pennsylvania Public Utility Com. (1981), 56 Pa. Commw. 371, 424 A.2d 1010, Brink’s and Purolator appealed an order granting contract carrier authority to Pagerly Detective and Security Agency, Inc. on a theory that there was not substantial evidence of need. Pennsylvania lav/ provides that:

“A permit shall be issued by the commission to any qualified applicant therefor authorizing in whole or in part the service covered by the application, if it appears * * * that the applicant is fit, willing and able properly to perform the service of a contract carrier by motor vehicle, and to conform to the provisions of this chapter and the lawful orders or regulations of the commission thereunder, and that the proposed service to the extent authorized by the permit will be consistent with the public interest and the policy declared in section 2501 * * otherwise such application shall be denied.” 66 Pa. Cons. Stat. Ann. §2503 (Purdon 1979).

Section 2501 is a declaration of policy similar to that of Illinois. Section 2501 provides that the policy and intent of the Pennsylvania General Assembly is to regulate the service of common carriers in order to preserve their inherent advantages. The section additionally provides that:

“It is hereby found as a fact * * * that the service of common carriers * * * forwarders, contract carriers * * * are so closely interwoven and interdependent, and so directly affect each other, that in order effectively to regulate such common carriers by motor vehicle and forwarders and to provide a proper and safe highway transportation system in the public interest, it is necessary to regulate the service of such contract carriers * * 66 Pa. Cons. Stat. Ann. §2501 (Purdon 1979).

The Pennsylvania court interpreted the intent of the General Assembly:

“Clearly, the General Assembly intended to provide for the regulation of contract carriers only to the extent that such regulation is necessary to protect common carriers from harmful competition by contract carriers. It did not intend to protect contract carriers from competition among themselves, except to the extent necessary to insure that one is not given an unfair advantage over another. « # <*
In short, Chapter 25 of the Code authorizes limited regulation of contract carriers for the purpose of protecting common carriers from harmful competition by contract carriers. Chapter 25 of the Code also authorizes regulation of contract carrier rates, record keeping, and safety provision to prevent any one contract carrier from unfairly competing with common carriers or other contract carriers. When the PUC considers an application for contract carrier authority, it may consider only whether the applicant is fit, willing and able to perform the service and whether any common carrier will be harmed by the grant of authority.” (56 Pa. Commw. 371,_, 424 A.2d 1010, 1013.)

Federal law

Under Federal law, a contract carrier is a person

“* * * providing motor vehicle transportation for compensation under continuing agreements with a person or a limited number of persons—(A) by assigning motor vehicles for a continuing period of time for the exclusive use of each such person; or (B) designed to meet the distinct needs of each such person.” 49 U.S.C.A. §10102(12) (West 1979).

In deciding whether to grant a contract carrier permit, the Interstate Commerce Commission must find that a person is “fit, willing, and able” to undertake shipping responsibilities and that the service will be consistent with “the public interest and the transportation policy of Section 10101 of this title.” (49 U.S.C.A. §10923(a) (West 1979).) In evaluating the applicant, the Commission must consider the number of shippers to be served, the nature of transportation to be provided, the effect that granting the permit would have on protesting carriers, the effect that denying the permit would have on the applicant, its shippers, or both, and the changing character of the requirements of those shippers. 49 U.S.C.A. §10923(b)(2) (West 1979).

National Transportation Policy is contained in section 10101 and states that the policy of the United States Government is

“(1) to recognize and preserve the inherent advantage of each mode of transportation;
(2) to promote safe, adequate, economical and efficient transportation;
(3) to encourage sound economic conditions in transportation, including sound economic conditions among carriers;
(4) to encourage the establishment and maintenance of reasonable rates for transportation without unreasonable discrimination or unfair or destructive competitive practices;
(5) to cooperate with each State and the officials of each State on transportation matters; and
(6) to encourage fair wages and working conditions in the transportation industry.” 49 U.S.C.A. §10101 (West 1979).

In International Detective Service, Inc. v. Interstate Commerce Com. (D.C. Cir. 1979), 613 F.2d 1067, the court of appeals extensively discussed statutory criteria for issuance of a contract carrier permit by the Interstate Commerce Commission. In International Detective Service, three related motor carrier cases were consolidated. Existing carriers had challenged grants of contract carrier permits to applicants. The court rejected the contentions of the protesting carriers. The court stated that armored carriers satisfied the Federal definition of contract carriers because they offered unique and specialized service “which, if expressly or impliedly limited to a class of persons, satisfies both the ‘limited number of persons’ and ‘distinct need’ requirements of [the law].” 613 F.2d 1067, 1074.

Although section 10923(b)(2) required consideration of certain factors,

“neither it nor the Administrative Procedure Act requires a detailed analysis of each and an explicit weighing of each against the other. The Commission’s determination is adequate if logical processes in reaching that decision are reasonably discernible and the essential basic findings are revealed. * * * [the court] should uphold agency findings of ‘less than ideal clarity’ if satisfied from the determination that the administrators gave a ‘hard look’ at the relevant issues and if ‘the agency’s path may reasonably be discerned.’ ” 613 F.2d 1067, 1077.

The court held that Federal legislation of contract and common carriers reflected a careful balancing between common carrier rights and expansion of contract carriers. Congress did not intend to insulate existing common carriers from potential contract carrier competition. It was not sufficient to inquire into the adequacy and ability of an existing carrier to serve normal needs. “The ‘distinct need’ of the shipper may nonetheless not be served by existing services, if the new service is better tailored to fit the special requirements of a shipper’s business, the length of its purse, or the select nature of the delivery service that is desired.” International Detective Service, Inc. v. Interstate Commerce Com. (1st Cir. 1979), 613 F.2d 1067, 1076.

The court further held that “shippers’ need for greater and more effective competition is the most significant element in determining the public interest and adherence to the National Transportation Policy * • 613 F.2d 1067, 1078.

In summary, in the cases examined where the applicant for contract carrier status has had to show that there was a need for the proposed service and that existing service was inadequate, these showings were mandated to protect common carriers from competition and not for the protection of other contract carriers. In International Detective Service, Inc., Federal law was liberally construed to permit competition between common and contract carriers as in the public interest. In none of the cases examined did the court hold that an order granting contract carrier authority is fatally defective where the order fails to explicitly state that there were unmet needs and inadequate existing service.

There is only one Illinois case which is directly on point.

In Carlson Transport, Inc. v. Illinois Commerce Com. (1981), 93 Ill. App. 3d 793, 416 N.E.2d 1239, Carlson Transport, a common carrier, challenged a grant of contract carrier authority to Edwin Meiers, doing business as Graphic Arts Express. Among the issues raised by Carlson Transport was whether a finding of inadequate or deficient service was required. The court rejected Carlson Transport’s contention, stating:

“Carlson’s reliance on Interstate Commerce Commission decisions and certain Illinois cases holding that a finding of inadequate or deficient service must be found by the Commission are inapposite. First, they involve common carrier certificates of public convenience and necessity,’ which standard is more rigid than ‘consistent with the public interest.’ (Be-Mac Transport Co. v. Illinois Commerce Com.) Second, even as to a common carrier certificate of ‘public convenience and necessity,’ a finding of inadequate or deficient service is not required for granting of specialized authority over irregular routes. McMann v. Illinois Commerce Com. (1967), 38 Ill. 2d 126, 230 N.E.2d 197.” 93 Ill. App. 3d 793, 796-97.

We hold that section 18—302 of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 951/2, par. 18—302) does not require express findings of unmet shipper need for carrier service and the inadequacy of existing service prior to issuing a contract carrier permit. Even if we were to hold otherwise, that would not change the result of this appeal, since Wells Fargo proved unmet needs and inadequate service.

In its brief, Brink’s argues that section 18—302 must be read in the light of Illinois public policy as stated in section 18—101. According to Brink’s, an applicant for contract carrier authority must demonstrate a need for the proposed service. The essential plan of regulation, in Brink’s view, is that

“only necessary services be permitted and unnecessary activities be prohibited. * * * [I]f the existing carrier is providing adequate service to meet the needs of the shipping public, the application must be denied since to do otherwise would convert the statutory scheme from one of regulation to free entry and deregulation.”

Brink’s cites no authority, nor do we find any authority for this proposition. Furthermore, its argument ignores the distinctions between contract carriers and common carriers discussed above. We note that section 18—101 declares that Illinois policy is against “unfair or destructive competitive practices” not against competition itself.

In its order, the Commission summarized testimony received during the hearings. Testimony demonstrating inadequate service includes the following:

The treasurer of Barrett Jewelry testified that he would like to use an armored carrier to transport cash sale receipts but that his company could not arrive at mutually satisfactory terms with Brink’s or Purolator.

The cashier and payroll manager of Carson, Pirie, Scott & Co. stated that Brink’s and Purolator could not provide later pickup times.

The treasurer and chief financial officer of Bels.cot Retailers, Inc., testified that the company was dissatisfied with Purolator’s pickup schedules.

The vice-president and cashier of Melrose Park National Bank said that the bank frequently needs unscheduled service for special shipments on short notice and its own employees have hand carried such shipments when armored service was not available.

The clinic director of the Center for Addictive Problems, Inc., stated that Brink’s and Purolator informed her they could not provide for weekly pickup service after 6 p.m. Friday or by 1 p.m. Saturday.

This and other testimony clearly established that the service provided by appellees was inadequate and that shippers had needs which were not met by appellees. In its findings, the Commission stated that “shippers who seek to use armored carrier service frequently have special needs for unscheduled service to meet unusual business contingencies,” that the entry of Wells Fargo would result in “an increased supply of routes generally available,” and that with more routes “more potential users would necessarily be along routes and therefore would be more likely to obtain service to meet their needs.” The Commission also found that there was a potential market for additional armored carrier service and that the public interest will be served by the entry of another carrier into the market.

The standard for review of Commission orders is found in section 68 of the Public Utility Act and provides that an order of the Commission “shall not be set aside unless it clearly appears that the finding of the Commission was against the manifest weight of the evidence.” (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 72.) The burden of proof is upon the person or corporation appealing the order. (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 72.) The scope of review is limited to a determination of whether the Commission acted within the scope of its authority, whether it made findings in support of its decision, whether the findings have substantial support in the record, and whether a constitutional right has been infringed by such findings. Carlson Transport, Inc. v. Illinois Commerce Com. (1981), 93 Ill. App. 3d 793, 795, 416 N.E.2d 1239, 1241.

We find that there is sufficient evidence to support the Commission order granting contract carrier authority to Wells Fargo, and that the Commission’s findings were not against the manifest weight of the evidence. Since we hold that the Commission properly applied the public interest test, we need not address the other issues raised by appellant Wells Fargo.

We reverse the judgment of the circuit court, and order that the Commission’s order of May 16,1979, be reinstated in full.

Reversed; Commission order affirmed.

ROMITI, P. J., and LINN, J., concur.