Mieher v. Brown

Decision Date01 February 1972
Docket NumberGen. No. 69--162
Citation278 N.E.2d 869,3 Ill.App.3d 802
PartiesEsther MIEHER, As Administrator of the Estate of Kathryn Mieher, Deceased, Plaintiff-Appellant, v. Kenneth L. BROWN and International Harvester Company, a Delaware Corporation, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Phelps, Russell & Kasten, Carlinville, for plaintiff-appellant; Carl E. Kasten, Carlinville, of counsel.

Hoagland, Maucker, Bernard & Almeter, Alton, for defendant-appellee; Robert B. Maucker, Alton, of counsel.

SIMKINS, Justice.

Plaintiff-Appellant Esther Mieher, Administrator of the Estate of Kathryn Mieher Deceased, appeals from a judgment order of the Circuit Court of Montgomery County, dismissing Counts III and IV of her Complaint against Defendant-Appellee International Harvester Company, a Delaware Corporation.

Count III is a wrongful death action; Count IV is for funeral and hospital expenses, and the allegations of the two counts are identical except as to the damages claimed. Hereinafter, reference to the 'Complaint' is to Counts III and IV aforesaid.

The Complaint alleges that on February 4, 1967, plaintiff's intestate was driving a 1964 Oldsmobile on a two-lane paved highway known as Illinois Route 140 near Old Ripley, Illinois; that the decedent was in the exercise of due care and caution for her own safety. Further allegations of the Complaint are as follows:

5.

That while plaintiff's decedent was driving said automobile, the driver of a milk truck--Kenneth L. Brown--drove his truck in such a manner that plaintiff's motor vehicle collided with the motor vehicle owned and operated by said Brown.

6.

That the collision occurred during the course of an attempted right turn by said Brown, and that the vehicle of the plaintiff's decedent ultimately contacted the right rear portion of the truck and that the truck bed or frame penetrated the windshield of the vehicle of plaintiff's deceased.

8.

That the defendant was and is a designer and manufacturer of 'IHC' trucks of various sizes and models, including the 1967 International Loadstar Series.

9.

That the defendant manufactured a 1967 International Loadstar (Model 1600) truck, serial number 416060H658250 and through its dealer, who is not known by the plaintiff at this time, sold said truck to said Brown in November, 1966, when they knew or should have known that said truck would be used in the stream of commerce upon the public highways.

10.

That the defendant, International Harvester Company, prior to such sale had negligently designed said truck in such a manner that it was dangerously defective in that the aforesaid truck did not have thereto attached a reasonably safe rear bumper, fender or other similar shield.

11.

That the defendant, International Harvester Company, by its agents, employees and dealers, then and there knew or in the exercise of ordinary care should have known that said truck, in the absence of such bumper, fender or shield was defective, faulty and unsafe and that the vehicle of the plaintiff's deceased or any other person using the public highways might collide with the right rear portion of said truck and that the vehicle would, in the absence of such a bumper, fender or shield be allowed to proceed unimpeded under that portion of said truck and that the plaintiff's deceased or any other person driving off the public highways might or would be seriously injured or killed by the truck bed's penetration of their windshields.

12.

That as a direct and proximate result of the forementioned collision between the vehicle of the plaintiff's deceased and the aforesaid negligently designed truck, the plaintiff's deceased sustained injuries both internally and externally of which she died on February 4, 1967.

Plaintiff brief's states that the issue is whether the Complaint 'properly states a cause of action on negligent design products liability theory . . .', and defendant's brief says that 'the action against International Harvester is based on strict liability in tort for alleged defective design of a truck . . .'. During oral arguments both plaintiff and defendant stated that the cause had been considered by them as one predicated upon the theory of strict liability in tort.

This admixture of language and theory is a difficult premise from which to work. It would unduly prolong this opinion to review the elements of a cause of action in strict liability in tort, as laid down in the case law in Illinois commencing with Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965), and proceeding through Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305 (1970). To put the matter bluntly, there is no cause of action in this state for strict liability in tort for negligent design. There are several theories upon which an injured plaintiff may proceed when the condition of a product is the alleged factor of proximate cause. One of these involves the traditional concept of negligence, another sounds in strict liability in tort, another sounds in breach of warranty, express or implied. These are separate and distinct causes of action and the pleading and proof requirements for each are different.

The complaint in question is, despite the language in the briefs and statements of counsel made during oral argument, an effort to state a cause of action for negligent design. It does not state a cause of action for strict liability in tort. There is, for example, no allegation that the truck in question was in the same condition when it left the possession of the defendant manufacturer as it was at the time of the accident which caused decedent's death. There is an allegation that the vehicle was a 'negligently designed truck', and that defendant 'knew or in the exercise of ordinary care should have known that said truck . . . was defective . . .'. As the Court said in Suvada, 'to require proof that Bendix was actively Negligent would be the antithesis of strict liability.' 32 Ill.2d 612, 624, 210 N.E.2d 182, 189 (1965). (Emphasis added.) We therefore treat the complaint for what is plainly is, a cause of action for negligent design of the truck.

Plaintiff urges that the manufacturer of a motor vehicle owes a duty to a nonuser to exercise ordinary care in design, and is liable for injuries proximately caused by the failure to use such care, even though the design defect is not the proximate cause of the initial collision. It should also be noted that plaintiff does not allege that Brown was negligent in his operation of the truck.

Defendant's position is that there can be no recovery when the design is not the proximate cause of the collision which ultimately resulted in decedent's injuries (i.e., the so-called 'second collision theory'), since this would be tantamount to requiring it to produce a 'crash proof car.' Defendant further contends that a manufacturer is not liable to a nonuser of its product under these circumstances.

In support of the position that a manufacturer owes a duty to the nonuser, or innocent bystander, whose injury results from a condition of the product, plaintiff cites Suvada v. White Motor Co., supra.

It will be recalled that Suvada and his partner, owned the truck involved in that case and that they had purchased the truck from White Motor Company who had installed a brake system purchased from Bendix. The brake system failed and the truck struck a bus causing damage to the bus and personal injuries to passengers in the bus. Suvada settled the claims of the passengers who were certainly nonusers of the brake system manufactured by Bendix. The Suvada Court said, 'Plaintiffs allege that they were compelled to make the settlements. This negatives any question that they acted as volunteers.' 32 Ill.2d 612, 624, 210 N.E.2d 182, 188 (1965). A reading of Suvada impels the conclusion that the passengers would have had a direct action against Bendix, and to this extent, Suvada does support plaintiff's position. Plaintiff also cites Wright v. Massey-Harris, Inc., 68 Ill.App.2d 70, 215 N.E.2d 465 (1966). This case does not support the proposition for which it is cited by plaintiff, because in Wright the plaintiff sued the manufacturer for personal injuries sustained while he was operating a self-propelled corn picker. In other words, the plaintiff in Wright was a user of the product in question.

Plaintiff also cites in support of the nonuser theory Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84 (1969), which case is also cited by defendant.

In Elmore, a 1962 Rambler manufactured by defendant allegedly was delivered with foreign matter in its gear box and a faulty drive shaft. While the car was being driven it went out of control and injured the plaintiff Elmore, the driver, and also struck the car of another plaintiff, Anna May Waters. Obviously Anna May Waters was a nonuser of the product. The Elmore Court cited Piercefield v. Remington Arms Co., 375 Mich. 85, 133 N.W.2d 129 (1965), in holding that a bystander or 'nonuser' of a product should not be denied recovery simply because of that status. The Court said that the 'liability has been based upon the existence of a defective product which caused injury to a human being, . . .' and observed that in prior cases it had used language 'applicable to human beings generally.' Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 657, 451 P.2d 84, 88--89, (1969).

In 2 Harper & James, The Law of Torts, p. 1572 n.6 (1956), the authors note that 'injury to a bystander is often a perfectly foreseeable risk of the makers enterprise and that the consideration for imposing liability on the maker without regard to fault does not stop with those who undertake to use the chattel. A restriction on recovery by bystanders is only the distorted shadow of a vanishing privity which is itself a reflection of the habit of viewing the problem as a commercial one between traders, rather than as a part...

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