Heuer v. Loop

• Decision Date: 31 October 1961
• Docket Number: No. IP 61-C-222,61-C-223.,IP 61-C-222
• Citation: 198 F. Supp. 546
• Parties: George J. HEUER, as Administrator of the Estate of Helen Heuer, Deceased v. Willard K. LOOP. George J. HEUER; Dennis Heuer, a minor, b/n/f George J. Heuer; Merrily Heuer, a minor, b/n/f George J. Heuer v. Willard K. LOOP.
• Court: U.S. District Court — Southern District of Indiana

198 F. Supp. 546

George J. HEUER, as Administrator of the Estate of Helen Heuer, Deceased v. Willard K. LOOP.

George J. HEUER; Dennis Heuer, a minor, b/n/f George J. Heuer; Merrily Heuer, a minor, b/n/f George J. Heuer v. Willard K. LOOP.

Nos. IP 61-C-222, 61-C-223.

United States District Court S. D. Indiana, Indianapolis Division.

October 31, 1961.

Spangler, Jennings, Spangler & Dougherty, Gary, Ind., for plaintiffs.

Steers, Klee, Jay & Sullivan, Indianapolis, Ind., for defendant.

STECKLER, Chief Judge.

The first of these two actions came before the court on defendant's motion to dismiss. The claim is one for wrongful death predicated upon Ind.Ann.Stat. § 2-404 (Burns' Supp.1961). Under that section the action is brought by the personal representative and inures to the benefit of the widow, widower or dependent next of kin, or certain other specified beneficiaries, as the case may be. The defendant contends that since the complaint does not conclusively and clearly show that the action is for the benefit of a member of the categories specified in the statute, no cause of action is stated. Defendant cites no cases and plaintiff has not responded.

In a wrongful death action under Indiana practice, failure to allege the existence of one or more beneficiaries mentioned in the Wrongful Death Act makes the complaint subject to demurrer for failure to state a cause of action. Stewart v. Terre Haute & I. R. Co., 1885, 103 Ind. 44, 2 N.E. 208; State ex rel. Meriwether v. Walford, 1894, 11 Ind.App. 392, 39 N.E. 162. However, a mere general allegation that "decedent leaves heirs and next of kin who are entitled to damages, and who have been damaged," is sufficient to withstand a demurrer, and to permit introduction of evidence showing who are the proper beneficiaries. Commercial Club of Indianapolis v. Hilliker, 1898, 20 Ind.App. 239, 242-243, 50 N.E. 578, 580. A "cause of action" is not required to be stated under the Federal Rules of Civil Procedure, and thus, Indiana cases are not controlling. All that is required is that a "claim" be stated, "even absent the statement of facts sufficient to constitute a cause of action * * *." Joseph v. Farnsworth Radio & Television Corp., D.C.S.D.N.Y.1951, 99 F.Supp. 701, 704; 5 Cyc.Fed.Proc. § 15.165, pp. 149-150 (1951).

Though much is to be desired in the wrongful death complaint, it is sufficient to withstand a motion to dismiss under the Federal Rules. A motion to dismiss should not be granted unless it appears certain that no facts to support a claim could be proved. Carroll v. Morrison Hotel Corp., 7 Cir., 1945, 149 F.2d 404; 2 Moore ¶ 12.08, p. 2245 (1960). Cf. 6 Moore ¶ 56.10, p. 2056 (1953). No such showing has been made. Accordingly, the motion to dismiss in Cause No. IP 61-C-222 is overruled.

The second action is by the widower, as an individual, for personal injuries to himself; property damage; medical expenses for, and loss of services of, his children; loss of consortium, companionship and services of his wife, both before and after her death; and as next friend, for the personal injuries suffered by his children, Dennis and Merrily.

In this action, defendant moves to strike rhetorical paragraph seven of legal paragraph V of the complaint,¹ the claim for medical expense and loss of consortium and services of the deceased wife. In support of the motion defendant cites and relies on Burk v. Anderson, 1952, 232 Ind. 77, 109 N.E.2d 407. Defendant asserts that since it is alleged that the wife died as a result of the accident and injuries sustained, plaintiff is not entitled to recover damages for loss of services and consortium that he may sustain in the future as a result of his wife's death; that the right to recover such damages terminated upon the death of the wife.

With respect to this claim, we are concerned with whether plaintiff is entitled to recover for loss of services and consortium after his wife's death.

In Indianapolis & M. Rapid Transit Co. v. Reeder, 1908, 42 Ind.App. 520, 522-523, 85 N.E. 1042, 1043, it was held that neither the death of the wife nor the Wrongful Death Act abate the common-law right of action in a...