Fortson v. Iden

Decision Date03 March 1966
Docket NumberNo. 1,No. 20342,20342,1
Citation138 Ind.App. 432,214 N.E.2d 399
PartiesEugene W. FORTSON, Appellant, v. Alfred D. IDEN, Appellee
CourtIndiana Appellate Court

[138 INDAPP 432] James E. Keating, Robert K. Rodibaugh, South Bend, for appellant.

Alfred D. Iden, pro se.


This action was commenced by a father to recover from a husband for the cost of the burial of the daughter of plaintiff and wife of defendant.

[138 INDAPP 433] After a trial before the judge, a judgment for the defendant was entered. Appellee-defendant-husband has filed no brief and did not participate in the argument before this court.

Since this is not a matter of great public interest the failure to file a brief by appellee may be taken as a confession of error. Public Utilities Co. v. McDonald (1919), 69 Ind.App. 403, 404, 122 N.E. 11; Ralston v. Ryan (1940), 217 Ind. 482, 483, 29 N.E.2d 202.

If a prima facie case is made by appellant's brief the judgment may be reversed. Muscatatuck State School v. Derringer (1963), 244 Ind. 318, 320, 192 N.E.2d 735.

In the absence of an appellee's brief the statements as to the facts contained in appellant's brief will be treated as accurate and sufficient for a full understanding of the questions presented for decision. McElwaine-Richards Co. v. Wall (1902), 159 Ind. 557, 559, 65 N.E. 753.

The deceased had been ill a long time prior to her death. She and her husband, appellee, had been separated and a divorce complaint by the husband was on file. She had been residing with her parents but died in the hospital. The husband was advised of her death within a half hour afterwards. He did not come to the hospital and made no arrangements for the burial. Some three and a half hours after death the father made the funeral arrangements and agreed to pay therefor. Subsequently the father paid the bills relating to the funeral, and took an assignment, on which this action to recover was predicated.

These circumstances do not make the father an intermeddler or volunteer. This court has held that where a neighbor orders the burial expense the one furnishing same may recover from a husband. Scott v. Carothers et al. (1897), 17 Ind.App. 673, 676, 47 N.E. 389.

It is well established that a husband is liable to provide [138 INDAPP 434] burial for his wife in keeping with the station in life of the husband as a common law obligation. Kirkman, Administrator etc. v. Gallentine (1960), 131 Ind.App. 150, 158, 169 N.E.2d 1; Rocap, Exr., v. Blackwell (1923), 79 Ind.App. 232, 235, 237, 153 N.E. 515.

All of the elements of a prima facie case are here. The couple was shown to be married, though separated. The husband was employed and earning in...

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2 cases
  • Adoption of Sheeks, Matter of
    • United States
    • Indiana Appellate Court
    • March 30, 1976 treated as accurate and sufficient for a full deterstanding of the questions presented for decision. . . .' Fortson v. Iden (1966), 138 Ind.App. 432, 433, 214 N.E.2d 399, 400. Appellants rely on the case of In Re Adoption of Jeralds (1972), 152 Ind.App. 538, 284 N.E.2d 99 for their autho......
  • G. H. Busch & Son, Inc. v. Margaret Zempke, 82-LW-0001
    • United States
    • Ohio Court of Appeals
    • January 7, 1982
    ... ... defendant's knowledge. See Eveland & Motsinger v ... Sherman, supra; accord Fortson v. Iden (Ind. App. 1966), ... 214 N.E.2d 399; Mondock v. Gennrich (N.J. D. Ct ... 1941), 21 A.2d 611; Samuels v. Hirz (Pa. Sup. Ct ... ...

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