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Mieher v. Brown

FEBRUARY 1, 1972.

ESTHER MIEHER, AS ADMR. OF THE ESTATE OF KATHRYN MIEHER, DECEASED, PLAINTIFF-APPELLANT,

v.

KENNETH L. BROWN ET AL., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Montgomery County; the Hon. WILLIAM A. GINOS, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Plaintiff-Appellant Esther Mieher, Administrator of the Estate 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 ...


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