Maki v. Frelk

• Decision Date: 26 July 1967
• Docket Number: Gen. No. 66--16
• Citation: 85 Ill.App.2d 439,229 N.E.2d 284
• Parties: Minnie MAKI, Administrator of the Estate of Charles Raymond Maki, Deceased, Appellant, v. Calvin FRELK, Appellee.
• Court: United States Appellate Court of Illinois

Page 284

229 N.E.2d 284 85 Ill.App.2d 439 Minnie MAKI, Administrator of the Estate of Charles Raymond
Maki, Deceased, Appellant,
v.
Calvin FRELK, Appellee. Gen. No. 66--16. Appellate Court of Illinois, Second District. July 26, 1967.
Rehearing Denied Sept. 18, 1967.

Page 285

Steinberg, Polacek & Steinberg, Chicago, for appellant.

O'Brien, Burnell, Puckett & Barnett, Aurora, for appellee.

THOMAS J. MORAN, Presiding Justice.

On October 16, 1964, plaintiff's decedent was killed in an intersection collision at Rte. 47 and Plato Road in Kane County. Plaintiff, as Administrator of the Estate[85 Ill.App.2d 440] of Charles Raymond Maki, Deceased, filed a three count complaint, basing her cause of action upon the Wrongful Death Act. (Ill.Rev.Stat.1965, chap. 70, Sec. 1 and 2). Count three of her complaint did not allege that the plaintiff's decedent was in the exercise of ordinary care for his own safety at the time of the collision in question, but did allege 'that at times relevant hereto if there was any negligence on the part of the plaintiff or the plaintiff's decedent it was less than the negligence of the defendant, Calvin Frelk, when compared.'

The defendant moved to dismiss count three for failure to state a cause of action because the plaintiff failed to allege due care on behalf of plaintiff's decedent. This motion was allowed and the plaintiff appealed directly to the Supreme Court on the theory that the Illinois rule of contributory negligence was against the Fourteenth Amendment of the United States Constitution and Article II, Sections 2 and 19 of the Illinois Constitution, S.H.A. Our Supreme Court entered, in part, the following order:

'In our opinion such a claim (which referred to plaintiff's theory and reasoning) does not give rise to a constitutional question of such a nature as to give this Court jurisdiction on direct appeal. There remains for consideration the question of whether, as a matter of justice and public policy, the rule should be changed. On the Court's own motion the cause is transferred to the Appellate Court for the Second District.' (Emphasis added)

The doctrine of contributory negligence as a complete bar to recovery has had a long and varied history. It has been stated in detail by Dean Leon Green in 'Illinois Negligence Law' 39 Ill.L.Rev. 36, 116, 197 and 40 Ill.L.Rev. 1. Another review was prepared by Ernest A. Turk, 28 Chicago-Kent Law Review 189 and 304.

The doctrine originated in England in 1809 in the case of Butterfield v. Forrester, 11 East. 60, 103 Eng.Rep. 926, [85 Ill.App.2d 441] wherein the defendant, who was repairing his house, had left a pole projecting across part of the highway and the plaintiff, while riding home at dusk, did not see the pole, rode into it and was thrown from his horse and thereby injured. The Court, speaking through Lord Ellenborough, held that:

'A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary

Page 286

caution to be in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorise another purposely to ride up against them. One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.'

There has been much speculation as to why the rule found such ready acceptance in later decisions both in England and in the United States. The fact of the matter is that it was during the rise of the Industrial Revolution that the doctrine of contributory negligence developed. There is reason to believe that the courts found in this defense, along with the concepts of duty and proximate cause, a convenient instrument of control by which the liabilities of the rapidly growing industries were curbed and kept within bounds. However, today the great majority of these cases are now heard by an Industrial Commission and negligence of the plaintiff is not an issue. Ill.Rev.Stat.1965, Chap. 48, Sec. 138.1--138.28, Decatur Ry. & Light Co. v. Industrial Board, 276 Ill. 472, 477, 114 N.E. 915 (1917); Imperial Brass Mfg. Co. v. Industrial Com., 306 Ill. 11, 14, 137 N.E. 411, 26 A.L.R. 161 (1922).

[85 Ill.App.2d 442] The history of contributory negligence in Illinois is found through a review of Illinois case law. The Illinois Supreme Court, in Aurora Branch R.R. Co. v. Grimes, 13 Ill. 585, 587 (1852) followed the Butterfield case and added the requirement that the burden of proof is upon the plaintiff to show not only negligence on the part of the defendant, but also that he exercised proper care and circumspection; or, in other words, that he was not guilty of negligence. In the next few years the decisions involving last clear chance, Moore v. Moss, 14 Ill. 106, 110 (1852), degrees of negligence, Chicago and Mississippi R.R. Co. v. Patchin, 16 Ill. 198, 203 (1854), and proximate cause, Joliet and Northern Indiana R.R. Company v. Jones, 20 Ill. 221, 227 (1858), created a confusing background. In Galena & Chicago Union Railroad Company v. Jacobs, 20 Ill. 478 (1858), Justice Breese reviewed these decisions in a case involving a four and one-half year old boy who was run over by a railroad locomotive. The Court disagreed with the Butterfield case, and adopted a comparative negligence theory in its place. At page 490--491 the Court began with the following fundamental premise:

'This, and all the cases subsequent, to which we have referred, have one common basis, and that is found in the old law maxim that 'no man shall take advantage of his own wrong or negligence' in his prosecution or defense against another.'

The...