*1 (No. 51150. al., A. PETERSON et v. LOU BACH Appellees,
JAMES COMPANY, RODT CHEVROLET Appellant.
Opinion 1979. June filed *3 GOLDENHERSH, MORAN, C.J., J., concurring part in dissenting part. in
Reno, Zahm, Powell, Skolrood, Fóigate, Lindberg 8c Skolrood, of Rockford K. Robert A. Fredrickson (Robert Ward, 8c D. of for counsel), appellant. Jack Brassfield, Howard, of Rockford E. Cowan & (Eugene Howard, of for Brassfield and William counsel), appel- J. lees.
MR. KLUCZYNSKI delivered JUSTICE of court: case, the in this court ruled
In our decision previous defendant, recover could not damages dealer, automobile on a strict liability an theory. (Peterson 61 Ill. v. Lou Bachrodt Chevrolet Co. 2d (1975), 17.) was killed and his son seriously Plaintiff’s was daughter an caused a defective by accident injured allegedly to a third in a used car sold defendant system braking to the circuit court of Plaintiff returned party. Winnebago he an wherein filed amended County complaint, alleging of defendant. The action proceeded negligence a returned a verdict to trial on a theory, jury negligence and the court favor defendant plaintiff, against to the thereon. On by plaintiff entered appeal judgment court, the circuit court’s was reversed appellate judgment trial errors. and a new was ordered because evidentiary We have defendant’s Ill. allowed App. 898.) (61 leave to for appeal. petition sold a used 1965 defendant
On June three to Cornelius Spradlin. Approximately Chevrolet later, Elder, a friend on months September John son, the vehicle north 20th of Spradlin’s driving he encountered crest in near Rockford when Street slight the terrain as he Samuelson Road. Spradlin’s approached seat, son, as was Kristina was in the Bobby, passenger crest, As he cleared future wife. Ramsey, Bobby’s truck had in front Elder noticed that a stopped pickup to execute at and Samuelson him the intersection 20th *4 brakes, the car crossed the left turn. Elder applied line, van. The car then an the center oncoming striking left the the eventually pavement, veered to right
357 of collision. The the 75 feet beyond point approximately comer of the southeast electrical on car struck an pole to rest in middle and came and Samuelson 20th brother, Peterson, and her intersection. Maradean Mark, 8, and were struck by near the were pole standing killed, suffered serious and Mark the vehicle. Maradean was The father of the left was later His amputated. injuries. leg our children, their behalf. filed suit on James, Following cause, in this decision in previous appeal defendant on a to establish liability negligence sought theory. the main issues for were whether jury
Although and, defective brakes defendant sold automobile with so, so if whether defendant was doing, negligent from evidence was also received both parties would of the vehicle. This evidence speed question whether a causal connection assist the jury determining and the existed between defendant’s if any, negligence, of Maradean and the of Mark. death injuries vehicle, Elder, an evidence driver of the stated in John the record as which was read into deposition evidence he at plaintiff’s approximately driving to 45 hour the brakes. The miles before per applying Kristina, automobile, in the Bobby two passengers were to relate their also called opinion upon by plaintiff that it was at vehicle. said speed Bobby moving hour, 45 to miles and Kristina approximately per gave an estimate of 40 to 50 miles hour. per to the stand was Charles K.
Also called by plaintiff Brackett, removed the vehicle a tow-truck who operator that, the scene of He testified in his the accident. the vehicle was at miles approximately 25 opinion, moving hour it struck the electrical on the southeast when pole per Brackett, .corner of and Samuelson. with years 20th as a his tow-truck based experience operator, an to the vehicle. Unlike the examination of damage *5 vehicle, of the Brackett did not
occupants personally witness the occurrence. Defendant’s to attorney objected the of issue Brackett on the of but the speed, questioning overruled, was the court “I to would like objection saying, hear the answer.”
Defendant also testified to witnesses who as produced vehicle, the some of whom speed personally whom, witnessed the occurrence and some of like Brackett, not. an did Marvin Beard was automobile driving Elder, in the same direction as and he testified that the feet the Elder vehicle him about 500 from passed at intersection of and Samuelson 65 miles hour or per 20th that he not see the more. Beard also stated did brake lights the in the on the Elder vehicle on. Because of crest go terrain, Beard did not see the accident. introduced defendant testimony by
Noneyewitness was Officer Maitland and Kenneth Gary provided, Packer. arrived at the scene after the Maitland shortly accident of marks and various and made skid diagram trial, he that the vehicle was reference At estimated points. hour, his on at 75 to 80 miles per moving basing vehicle, marks, of its skid and of path length of the accident scene sustained. His damage diagram for the was admitted into evidence purpose illustrating it not to into and but was be taken testimony argument, withdrawn, later and an room. was jury diagram more admitted drawn substitute was carefully enlarged, its use. its stead with similar restrictions on This substitute was an of Packer and was based on prepared by employee his examination of exhibits as well as Officer photographic Maitland’s Packer holds academic de- multiple diagram. a doctorate in industrial grees, including engineering, he had on various worked extensively types braking In his he estimated that the vehicle systems. testimony, was in excess of 73 miles hour while moving per scene, the accident in excess of 38 miles per approaching left pavement, at it which at the hour point hit the it pole. hour when miles per excess evidence recitation our isAs apparent a substantial portion the issue admitted on speed, of a Because testimony. reconstruction noneyewitness, have testimony, prior holdings for eyewitness preference of reconstruction admissibility restrictions placed 46 Ill. Plank v. Holman In (1970), testimony. used be testimony “may that reconstruction
the court held if it is determined testimony” in addition eyewitness application that “it is rely knowledge necessary *6 ken of the the average of science beyond principles v. later, in McGrath Rohde (1972), Two years juror.” it is not held that the court proper Ill. again 2d reconstruction with testimony eyewitness supplement “not resolved do if the factual matters be testimony that of scientific beyond a typical require knowledge jurors.” the of an automobile is believe that
Because we speed the ken of not matter beyond juror (Delaney average hold that the v. 49 Ill. we Badame 178), 2d (1971), circuit erred in reconstruction testimony. court admitting conclusions on the basis The their own could draw jurors of eyewitness testimony. that
We do not as defendant argues, agree, harmless of the reconstruction was testimony admission out, the estimates of error. As defendant speed points consistent with reconstruction witnesses were by given reconstruc These some of the those by eyewitnesses. given however, estimates, testimony contradicted tion that the we cannot safely say other jury eyewitnesses, reconstruction the inadmissible not influenced by In this the case differs materially testimony. respect, 95, 104-05, Ill. cited v. Walters by Diederich 2d (1976), defendant, held that the erroneous the court wherein was harmless. The of reconstruction testimony admission factual matters to contested, be resolved here were closely and the determination of these would questions depend on the of the view largely jurors’ witnesses credibility and the to be to their weight assigned testimony. inadmissible evidence determinative, well have been may and a new trial is therefore We note our necessary. of the reconstruction admitted in disapproval testimony this case also witness, extends to that of plaintiff’s Brackett.
Also raised is the issue of by whether parties Maitland’s and the diagram enlargement prepared by Packer’s are admissible. Because these employee diagrams be offered for some other than might again purpose issue, reconstruction we address this testimony, illustrating and we with the court that the agree appellate diagram Maitland “is by difficult to prepared understand confusing, and would not be to the any way helpful jury this case” Ill. We deciding (61 App. 904). therefore find no abuse discretion circuit court in We also find that diagram. withdrawing is and inadmissible for this further diagram misleading reason. A with comparison diagram photographic exhibits reveals that Maitland failed to four diagram skid marks that were caused another parallel apparently vehicle, a semitrailer or other truck with four probably *7 fact, tires. In it that Maitland have parallel appears may attributed at vehicle, least one of these marks to the Elder thereby marks left improperly lengthening allegedly that vehicle. Defendant cites v. Smith Ohio Oil Co. (1956), 67, 10 Ill. for the that App. 2d proposition only limitation on the of demonstrative evidence admissibility such as the of is that it Maitland be relevant and diagram note, however, We that the exhibit involved explanatory. “relevant, in Smith was found to be legitimate 67, Ill. helpful” 2d (emphasis App. added) (10 77) that court there indicated that appellate misleading Ill. exhibits should not be admitted 2d App. (10 76). We therefore hold that the should not have been diagram because it Because Packer’s admitted was misleading. in on Maitland’s it too is was based diagram, diagram inadmissible. Packer
In addition to his testimony, reconstruction also on the his whether system gave braking Elder vehicle was defective. Plaintiff Packer’s challenges to as an on this but testify subject, qualifications expert we court that with Packer was so agree appellate his academic Packer held a qualified. Among degrees, in He doctorate industrial also had approxi- engineering. with mately years experience working braking those of automobiles. systems, including his brief is not clear on this it entirely Although point, that, to be if contention Packer is appears plaintiff’s to allowed as an on the testify expert subject braking he must do so in systems, response hypothetical rather than his examination of the ex questions upon hibits. With this we do a not In hypothetical agree. a witness is asked to assume certain facts to be question true. Co. v. Industrial Com. (Clifford-Jacobs Forging 19 Ill. Such are not 2d (1960), questions 243.) if the witness observe the necessary expert may personally of his v. Von subject testimony Solbrig (Borowski (1973), 14 Ill. 3d Ill. App. (1975), 418), aff'd we believe that the exhibits sufficiently represent condition of the Packer’s system support braking without the use of testimony hypothetical questions. exhibits in are one two brake shoes from the question left front on the Elder automobile and two system braking that, Packer testified in his system. photographs as opinion, system, markings braking photographed, indicated that all were when the vehicle was parts place last He also stated that the brake shoe showed operated. no circumstances, unusual wear. Under these sign
362 If, remand, not necessary.
hypothetical question upon his Packer is called opinion upon express again that on of the he may system, subject give braking the of the basis his examination exhibits.
The final issue raised the is whether by parties recover the value of free services medical plaintiff may for Children in rendered the Shriners’ by Hospital Crippled Mark Peterson’s Contrary surgery leg. performing the we believe that plaintiff’s argument, holding Jones Ill. is still & Adams Co. v. 227 good George (1907), case, law and is In the the court held George controlling. that a could not recover for the personal injury plaintiff value the services rendered by family. plaintiff’s nursing believe, and, the decision is sound we reasoning here. is An individual not entitled to fully applicable recover for the that he has value of services obtained without or v. expense, liability. Coyne (Accord, obligation, 891, 11 N.Y.2d N.E.2d Campbell (1962), We see no need to abandon as we precedent, 1.) N.Y.S.2d which the no erosion of the perceive principle upon based; the collateral- case is the behind George policy rule if the source is not has simply applicable plaintiff incurred no or in liability expense, obligation, obtaining is the services for which he seeks This compensation. further made upon comparison present apparent the collateral-source rule is case with a situation in which that of the defendant who seeks a frequently applied, because the has received reduction damages rule of insurance benefits. “It is a well-settled damages is not amount recoverable for tortious personal injuries has decreased the fact that been injured party from or indemnified for the loss wholly by proceeds partly where the tortfeasor did not contribute accident insurance of such insurance. This to the payment premiums is on the basis that rule usually justified wrongdoer made by expenditures not benefit should ” insurance injured coverage. party procuring (Em- sec. at Am. phasis (22 Damages added.) Jur. *9 in In a situation which party 293-94 injured (1965).) or incurs no see no we liability, expense, obligation, We the rule. refuse to those justification join for applying which, courts without of the of each consideration facts case, rule, adhere to “the collateral source blindly permit- to in the exceed limits plaintiff compensatory ting of an interest defendant.” insuring impact upon (Note, Unreason in the Law The Collateral Source Damages: Rule, 741, L. 77 Harv. Rev. 742 (1964) (hereafter\ The tort is purpose compensatory Unreason).) damages to 903, sec. Torts compensate (Restatement (Second) comment a it is not the of such purpose (1979)); damages to a defendants or windfall punish bestow plaintiffs. upon windfall, The view that a if is to be should any enjoyed, go to the v. Williams plaintiff Cir. (Grayson (10th 1958), 256 F.2d borders too of unwar- closely 65) approval ranted is a and it punitive view not damages, espoused by our cases.
The has one also been made that who argument renders services a intends bestow gratuitously gift, that a defendant in this allowing mitigate damages situation shifts the to the effectively benefit defendant. We believe, do however, not intentions should presumed so a role play in our We are important analysis. concerned more with the actual effect discerning upon parties, and we believe that is better served in this justice way. does not permit deprive mitigation “[T]o benefit, all he since did have the services he when needed them and without cost. him the value monetary Awarding of the services in rendered several probably judgment Unreason, later an seems years windfall.” unanticipated Harv. L. Rev. 752. affirmed,
The of the court is appellate judgment the cause remanded is to the circuit court of Winnebago for
County further not inconsistent with proceedings views expressed herein. and remanded.
Affirmed MR. CHIEF GOLDENHERSH, concurring JUSTICE dissenting part: I dissent from that of the which holds portion that evidence of value reasonable of the services rendered the Shriners’ for plaintiff by Children is Hospital Crippled I inadmissible. with the well-reasoned agree holding court that the evidence was appellate admissible and the reasonable value of the services recoverable. is demon- infirmity majority’s position
strated the fact that of its rationale to an application action a claim for the destruction of an auto- involving mobile which the owner had received as a would result gift *10 in the had that because it cost him there holding nothing could be no for its destruction. I am certain that recovery who for contributors made it the Shriners’ possible without to render the Hospital, compensation, type received, medical services which intended that the tortfeasor, and not plaintiff, be beneficiary their largess.
MR. MORAN in this concur- joins partial JUSTICE rence and dissent. partial