Contois v. State Mut. Life Assur. Co., 44C1202.
| Decision Date | 14 March 1945 |
| Docket Number | No. 44C1202.,44C1202. |
| Citation | 66 F. Supp. 76 |
| Parties | CONTOIS v. STATE MUT. LIFE ASSUR. CO. OF WORCHESTER, MASS. |
| Court | U.S. District Court — Northern District of Illinois |
Schnackenberg, Hansen & Towle, of Chicago, Ill., for plaintiff.
Defrees, Liske, O'Brien & Thomson, of Chicago, Ill., for defendant.
LA BUY, District Judge.
Defendant's motion to strike Count II of plaintiff's complaint.
Reference is made by plaintiff that under Federal Rules of Civil Procedure, rule 12(b), 28 U.S.C.A. following section 723c, defendant's motion to dismiss Count II of the complaint should have been made before defendant filed its answer. Plaintiff states "However, we shall not press the point that the motion to dismiss has been waived." Nevertheless the court feels that this matter should be disposed of. In the instant case the motion to dismiss was filed the same time as the answer and both were filed as one brief. The motion to dismiss precedes the answer. In Young v. Aetna Life Ins. Co., D.C., 1940, 32 F.Supp. 389, 391, the same question was raised on the waiver of the right to file a motion to dismiss. The court said: * * *"
The sole question presented by defendant's motion is whether the death of the insured was caused by an accident within the time limited by the terms and language of the policy. The facts as disclosed by the complaint show that on September 29, 1943, insured-deceased was riding in a railway passenger car which was derailed and insured was "greatly injured, bruised and maimed in and about his body, arms and legs, evidenced by visible contusions and wounds on the exterior of the body and an injury, to wit: a perforation of a certain gastric ulcer in the stomach of the insured was effected, sustained and contracted on or about to wit February 4, 1944, by the sole means of and due directly to said accident, which perforation, directly and independently of all other causes, resulted in the death of the insured from general peritonitis at Chicago, Illinois, on February 10, 1944."
Considerable discussion has been directed by the plaintiff to the meaning of the words "accident" and "injury" and the court agrees that the terms are not synonymous. Plaintiff has cited cases dealing with the distinction and all of them arise under the Workmen's Compensation Laws. A contract of...
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Kuhlmeier v. Hazelwood School Dist., 83-2039C(1).
...in a timely fashion." 5 Wright & Miller, Federal Practice and Procedure: Civil § 1361 at 634 (1969). See Contois v. State Mut. Life Asur. Co., 66 F.Supp. 76 (D.C.Ill.1945), aff'd, 156 F.2d 44 (7th Cir.1946); Duval v. Bathrick, 31 F.Supp. 510 (D.C.Minn.1940). Therefore, defendants' Rule 12(b......
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In re Palomino
...While some courts allow a motion to dismiss to be filed simultaneous with an answer, see, e.g., Contois v. State Mut. Life Assur. Co. of Worchester, Mass., 66 F.Supp. 76 (N.D.Ill.1945), a motion to dismiss filed weeks after the answer was filed is certainly untimely. See Skrtich v. Thornton......
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Texas Taco Cabana, L.P. v. Taco Cabana of New Mexico, CIV. A. SA-02-CV-120.
...discretion to view the motion as having preceded the answer, and thus, as having been timely presented. See Contois v. State Mut. Life Assurance Co., 66 F.Supp. 76, 77 (N.D.Ill.1945), aff'd, 156 F.2d 44 (7th Notably, Counter-Defendants included failure to state a claim upon which relief may......
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Green v. Henry Cnty. Comm'n
...filing puts the plaintiff on notice that the defendant is not waiving its right to assert the motion[ ]"); Contois v. State Mut. Life Assur. Co., 66 F. Supp. 76, 77 (N.D. Ill. 1945). Second, Rule 12(i) states that "[i]f a party so moves, any defense listed in Rule 12(b)(1)-(7)—whether made ......