Johnson v. Hi-Way Dispatch, Inc.

• Decision Date: 29 November 1972
• Docket Number: Civ. No. 72-52.
• Citation: 352 F. Supp. 929
• Parties: Betty JOHNSON, Plaintiff, v. HI-WAY DISPATCH, INC., a corporation, Defendant.
• Court: U.S. District Court — Eastern District of Illinois

352 F. Supp. 929

Betty JOHNSON, Plaintiff, v. HI-WAY DISPATCH, INC., a corporation, Defendant.

Civ. No. 72-52.

United States District Court, E. D. Illinois.

November 29, 1972.

John Glidden, Hartzell, Glidden & Tucker, Carthage, Ill., F. D. Conner, Belleville, Ill., for plaintiff.

Jack E. Horsley, Richard F. Record, Jr., Craig & Craig, Mattoon, Ill., for defendant.

MEMORANDUM AND ORDER

FOREMAN, Judge:

This is a diversity suit for loss of consortium brought by a wife whose husband was injured in an automobile accident. From the pleadings it appears that Plaintiff's husband earlier brought a negligence action against the present Defendant for his personal injuries arising out of the same accident, and recovered damages upon the trial of that action.

The accident occurred on April 13, 1967, near Effingham, Illinois. The present action was commenced on April 12, 1972, one day short of five years from the date of the automobile accident. Defendant has moved to dismiss the complaint under Rule 12, alleging that the action is barred by the Illinois two-year statute of limitations covering "actions for damages for an injury to the person," Ill.Rev.Stat. Ch. 83 § 15. Plaintiff has not responded to the motion.

It is clear that in a diversity action this Court is bound by the Illinois statute of limitations. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). In addition to the above-mentioned statute, Ill.Rev.Stat. Ch. 83 § 16 provides that "all civil actions not otherwise provided for" must be brought within five years of the accrual of the cause of action. Thus the issue is whether Plaintiff's suit for loss of consortium is an "action for damages for an injury to the person," subject to the two-year statute of limitations or is subject to the general five-year statute.

Defendant in its brief claims that no Illinois case law is applicable on the point, and thus cites authority from other states. The Court believes, however, that the courts of Illinois have indicated the nature and applicable statute of limitations for an action for loss of consortium.

It was long the law in Illinois that a husband could maintain an action for loss of consortium due to injuries to his wife. Price v. H. B. Green Transportation Line, 287 F.2d 363 (7th Cir., 1961). In Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881 (1960), the Illinois Supreme Court held that a wife could likewise maintain such an action due to injuries to her husband. The Court explained the nature of the cause of action:

"consortium, however, includes, in addition to material services, elements of companionship, felicity and sexual intercourse, all welded into a conceptualistic unity."

The gist of the action is the wife's loss resulting from personal injuries of the husband. The Court noted that the cause of action exists to serve the same basic reason that alienation of affection suits do—namely, the protection of the family. See also Tjaden v. Moses, 94 Ill.App.2d 361, 237 N.E.2d 562 (1968).

In similar actions for loss of the services of a family member, the courts of Illinois have applied the general five-year statute of limitations. Waller v. City of Chicago, 11 Ill.App. 209 (1882), involved a parent's suit for loss of services of his child due to negligently inflicted personal injuries. The Court rejected the applicability of the two-year personal injury statute, holding that, ". . . the gist of the action is not the injury, but the consequence of such injury whereby the parent lost the services of the child."

In Desiron v. Peloza, 308 Ill.App. 582, 32 N.E.2d 316 (1941), a minor child sued for loss of her mother's services, and her mother sued for her own personal injuries. The Court found the mother's claim to be barred by the...