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Maki v. Frelk





APPEAL from the Circuit Court of Kane County; the Hon. CHARLES SEIDEL, Judge, presiding.


On this appeal we are presented with a question arising solely on the pleadings. In 1965 Minnie Maki, as administrator of the estate of her deceased husband, filed a complaint under the Wrongful Death Act against Calvin Frelk in the circuit court of Kane County. The complaint is in three counts. Defendant answered as to the allegations of counts I and II, and moved to strike count III. The court granted the motion, striking count III for failing to state a cause of action. In its order the court recited that there was no just reason for delaying enforcement or appeal.

The plaintiff thereupon sought review by this court but the cause was transferred to the appellate court for lack of any basis for direct appeal. The appellate court reversed and remanded (Maki v. Frelk, 85 Ill. App.2d 439), and we granted petitions by both the plaintiff and the defendant for leave to appeal from the appellate court judgment. The National Association of Independent Insurers and a group of trial lawyers called "Illinois Defense Counsel" have appeared as amici curiae.

The complaint alleges that on October 16, 1964, at about 9 P.M. the plaintiff's decedent was driving his car in a westerly direction on Plato Road near the intersection with Illinois Route 47, in Kane County, and the defendant was driving a car in a northerly direction along Illinois Route 47 near the intersection, that defendant was guilty of driving too fast, failing to yield the right of way, failing to keep a proper lookout for other cars, failing to keep his own car under control, failing to stop so as to avoid a collision, otherwise improperly operating the vehicle, and operating it without sufficient brakes, and that as a direct and proximate result of one or more of such acts his car collided with the car operated by plaintiff's decedent, causing the latter's death. The third count, stricken for failure to state a cause of action, did not allege due care on the part of the plaintiff and the decedent. Instead it alleged that "if there was any negligence on the part of plaintiff or plaintiff's decedent it was less than the negligence of the defendant, Calvin Frelk, when compared."

There is no dispute that under the rule as it now exists a plaintiff must be free from contributory fault in order to recover, and that contributory negligence of the deceased is a bar to recovery under the Wrongful Death Act. (Howlett v. Doglio, 402 Ill. 311.) In contending the third count nevertheless states a cause of action, plaintiff urges that the rule ought now be changed in favor of a form of comparative negligence. The appellate court agreed. It reviewed the history of contributory negligence, considered arguments generally advanced for and against the adoption of a comparative negligence rule, and concluded that contributory negligence shall no longer bar recovery if it is not as great as the negligence of the person against whom recovery is sought but that any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person recovering. The court reversed and remanded, holding that count III was sufficient to state a cause of action.

After full consideration we think, however, that such a far-reaching change, if desirable, should be made by the legislature rather than by the court. The General Assembly is the department of government to which the constitution has entrusted the power of changing the laws. In re Bradwell, 55 Ill. 535, 540.

Where it is clear that the court has made a mistake it will not decline to correct it, even though the rule may have been re-asserted and acquiesced in for a long number of years. (Neff v. George, 364 Ill. 306.) No person has a vested right in any rule of law entitling him to insist that it shall remain unchanged for his benefit. (Grasse v. Dealer's Transport Co., 412 Ill. 179, 190.) But when a rule of law has once been settled, contravening no statute or constitutional principle, such rule ought to be followed unless it can be shown that serious detriment is thereby likely to arise prejudicial to public interests. (Molitor v. Kaneland Community Unit Dist., 18 Ill.2d 11; Heidenreich v. Bremner, 260 Ill. 439, 451.) The rule of stare decisis is founded upon sound principles in the administration of justice, and rules long recognized as the law should not be departed from merely because the court is of the opinion that it might decide otherwise were the question a new one. See Prall v. Burckhartt, 299 Ill. 19, 41.

Counsel on both sides have argued this case at length, supplying the court with a comprehensive review of many authorities. But we believe that on the whole the considerations advanced in support of a change in the rule might better be addressed to the legislature. As amici have pointed out, the General Assembly has incorporated the present doctrine of contributory negligence as an integral part of statutes dealing with a number of particular subjects (see, e.g., provisions imposing liability for injuries caused by the negligence of firemen "without the contributory negligence of the injured person * * *" Ill. Rev. Stat. 1967, chap. 24, par. 1-4-4, provisions indemnifying policemen from liability for injuries caused to others "without the contributory negligence of the injured person * * *" Ill. Rev. Stat. 1967, chap. 24, par. 1-4-6, and provisions concerning the liability of county superintendents of highways for injuries resulting from their negligence "where it is found that there was no contributory negligence attributable to the plaintiff * * *" Ill. Rev. Stat. 1967, chap. 121, par. 385), and the legislative branch is manifestly in a better position than is this court to consider the numerous problems involved. We recently observed, with regard to a contention that exculpatory clauses in residential leases ought to be declared void, that "In our opinion the subject is one that is appropriate for legislative rather than judicial action." (O'Callaghan v. Waller & Beckwith Realty Co., 15 Ill.2d 436, 441.) We think the same must be said with respect to the change urged in the case at bar.

The circuit court was correct in striking count III of the complaint in the case at bar, and the appellate court erred in reversing its order. The judgment of the appellate court will therefore be reversed, the order of the circuit court affirmed, and the cause remanded to the circuit court for further proceedings not inconsistent with the views herein expressed.

Appellate Court reversed; circuit court affirmed and cause remanded.

Mr. JUSTICE WARD, dissenting:

The opinion of the majority is plausible but, in my view, nothing more. A holding that an abandonment of our rule of contributory negligence and the adoption of an alternative, such as a rule of comparative negligence, if found to be desirable, should be effected only by legislation is not, I believe, an adequate response to the important questions presented through this appeal. It is appropriate to outline the background of our rule in presenting the considerations which require my disagreement.

It is commonly said that the doctrine that contributory negligence of a plaintiff operates as a complete bar to recovery had its origin in the English case of Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926, which was decided in 1809. The defendant had left a pole projecting across part of the highway, and thereafter the plaintiff "riding violently" did not see the pole and rode against it. The plaintiff was thrown from his horse and injured. Lord Ellenborough speaking for the court declared: "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 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 authorize 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."

The rule of Butterfield found ready acceptance in the United States. The historical explanation offered for the generally uncritical adoption of the rule is that courts were desirous of protecting young industries, which were beginning to develop, from what could have been the over-whelming burden of successfully pressed negligence claims. See, Maloney, From Contributory to Comparative Negligence; A Needed Law Reform, 11 U. ...

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