Mount v. McClellan

• Citation: 234 N.E.2d 329,91 Ill.App.2d 1
• Decision Date: 08 March 1968
• Docket Number: Gen. No. 67--39
• Parties: Emmett M. MOUNT, Helen Mount, his wife, Donna Mount, a minor by Helen Mount, her mother and next friend, and Pamela Mount, a minor by Helen Mount, her mother and next friend, Plaintiff-Appellees, v. Donald W. McCLELLAN, Wayne Hoffman and Betty Hoffman, his wife, Defendants- Appellants.
• Court: United States Appellate Court of Illinois

Page 329

234 N.E.2d 329

91 Ill.App.2d 1

Emmett M. MOUNT, Helen Mount, his wife, Donna Mount, a minor by Helen Mount, her mother and next friend, and Pamela Mount, a minor by Helen Mount her mother and next friend Plaintiff-Appellees, v. Donald W. McCLELLAN, Wayne Hoffman and Betty Hoffman, his wife, Defendants- Appellants.

Gen. No. 67--39.

Appellate Court of Illinois, Second District.

March 8, 1968.

Treacy & Clifford, Jack F. Clifford, Joseph M. O'Callaghan, Chicago, of counsel, for appellants.

Churchill & Baumgartner, Grayslake, Fuqua, Fuqua & Winter, Waukegan, for appellees.

THOMAS J. MORAN, Justice.

On Christmas Day in 1964, the plaintiff was allegedly injured when his car was struck by the car of the defendant at Route 83 in Lake County. Plaintiff was taken to a near-by hospital, treated as an outpatient and returned home the same day. The plaintiff suffered bruises and headaches as a result of the accident. Prior to the accident he had difficulty with headaches and dizziness and, on one prior occasion, went to the hospital on this account. All medical findings were normal and his family doctor testified that no concussion was apparent. During the course of the trial, the plaintiff was asked, on cross-examination, whether or not his car was equipped with seat belts. An objection to this question was overruled and the plaintiff answered that his car was not equipped with seat belts.

The jury rendered a finding in favor of the plaintiff in the amount of $1,000.00. Plaintiff thereupon made a motion for a new trial, alleging inadequacy of damage and that the trial court had erred in permitting the plaintiff to be interrogated regarding the seat belts. The trial court granted the motion for a new trial on both grounds and the defendant filed his petition in this Court for leave to appeal from the order of the trial court granting the new trial, which was allowed.

Considering first the question of the seat belts, while today there is a statutory requirement that automobiles be so equipped, at the time of this accident there was no such requirement. The plaintiff argues that in order for there to be negligence there must be a duty. He continues, that if there is no duty then there can be no breach and consequently, no negligence. On the other hand, the defendant argues that, even though there was no statutory duty to have seat belts at the time of the accident, there was the common law duty to use due care for one's own safety and whether or not seat belts were installed in the car is an evidentiary factor which the jury could properly consider in determining the question of the plaintiff's due care for himself.

There appears to be no Illinois case on this subject. We have examined other jurisdictions and find that in the States of Wisconsin, South Carolina and Indiana such evidence is admissible as a factor in determining the common law duty of care. See, Bentzler v. Braun (1967), 34 Wis.2d 362, 149 N.W.2d 626, 639 et seq., Sams v. Sams (1966), 247 S.C. 467, 148 S.E.2d 154, 155, 15 A.L.R.2d 1423 and Kavanagh v. Butorac (Ind.1966), 221 N.E.2d 824. On the other hand it appears that in Delaware and Florida such evidence is held to be inadmissible. See, Lipscomb v. Diamiani (Del.1967), 226 A.2d 914, 918 and Brown v. Kendrick (Fla.App.1966), 192 So.2d 49, 51.

It seems to us that the better reasoning favors the admissibility of the evidence. As was said in the Bentzler case at page 639 of 149 N.W.2d:

'* * * (T)here is a duty, based on the common law standard of ordinary care, to use available seat belts independent of any statutory mandate.'

and at page 640, Court went on to say:

'* * * (I)t is obvious that, on the average, persons using seat belts are less likely to sustain injury and, if injured, the injuries are likely to be less serious. On the basis of this experience, and as a matter of common knowledge, an occupant of an automobile either knows or should know of the additional safety factor produced by the use of seat belts. A person riding in a vehicle driven by another is under the duty of exercising such care as an ordinarily prudent person would exercise under similar circumstances to avoid injury to himself.'

The use, or non-use of seat belts, and expert testimony, if any, in relation thereto, is a circumstance which the...