Millen v. Dorrah, 1--474A59

• Decision Date: 11 September 1974
• Docket Number: No. 1--474A59,1--474A59
• Citation: 316 N.E.2d 403,161 Ind.App. 430
• Parties: Stephen R. MILLEN and Walter D. Millen, Appellants (Plaintiffs Below), v. Melvin E. DORRAH and Employees Commercial Union Insurance Company, Appellees(Defendants Below).
• Court: Indiana Appellate Court

Page 403

316 N.E.2d 403

161 Ind.App. 430

Stephen R. MILLEN and Walter D. Millen, Appellants (Plaintiffs Below), v. Melvin E. DORRAH and Employees Commercial Union Insurance Company, Appellees(Defendants Below).

No. 1--474A59.

Court of Appeals of Indiana, First District.

Sept. 11, 1974.

Vernon J. Petri, Spencer, for appellant.

Don M. Robertson, Bloomington, for appellee.

LOWDERMILK, Judge.

This appeal comes to us presenting one issue for review, i.e., whether or not the court's dismissal of the plaintiff's amended third party beneficiary complaint for damages was contrary to law.

The action is the result of an automobile collision which occurred in Monroe County, Indiana, between an automobile operated by appellant, Stephen R. Millen, and an automobile operated by one Gary Hash. The automobile operated by Mr. Hash had been purchased and paid for by Shirley Staley, nee Casey, and titled in the name of her father, Melvin E. Dorrah, in the State of Louisiana. The car was insured in Mr. Dorrah's name through either the Employees Commercial Union Insurance Company or Employers Fire Insurance Company of Boston, Massachusetts, and the premium was paid by Mrs. Staley, nee Casey.

Mr. Millen's father, Walter D. Millen, also brought an action against the same defendants. The suits were consolidated and Gary Hash was defaulted, after which evidence was heard and a judgment awarded Stephen R. Miller in the amount of $20,000 and to Walter D. Millen in the amount of $10,000 and expenses incurred and to be incurred on his minor son, Stephen.

After recovering the judgment it was determined that Mr. Hash was, in fact, a pauper and the instant suit was instituted against the insurer of the vehicle Hash had been driving at the time of the collision.

There were many legal ramifications that were finally resolved to the point where appellants proceeded on the amended fourth paragraph of reinstated third party beneficiary complaint for damages wherein appellants set out there were money judgments against Hash and alleged 'but that said judgments remain and will remain unpaid and unsatisfied.'

Defendant-appellee insurance company contends the said complaint should be dismissed for the reason it is defective as it failed to explicitly allege that Mr. Hash was 'judgment proof.'

The court, after hearing argument on this issue, ordered the dimissal of the reinstated amended third party beneficiary complaint for damages of Walter D. Millen, with prejudice.

Appellants timely filed their motion to correct errors and in addition thereto motion for relief from judgment, together with memorandum, which motions were both denied by the court.

It is only the case of Walter D. Millen that is presently before this court on appeal.

Appellant relates that appellee's motion to dismiss is based solely on the fact that plaintiff-appellant failed 'to state a cause of action upon which relief may be granted under TR. 12(B)(6) for the sole reason that plaintiff-appellant failed to allege the words 'judgment proof."

Appellant urges that appellee's contention is under the assumption that Indiana law requires that Mr. Hash (driver of appellee's automobile at the time of collision) must have been alleged to have been 'judgment proof' in the complaint. This, appellant vigorously denies, and relies on IC 1971, 27--1--13--7, Ind.Ann.Stat. § 39--4309 (Burns' 1965 Repl.)

Appellee insurance company urges with equal vigor that the above st...