Perkins v. State

• Decision Date: 24 February 1969
• Docket Number: No. 1,No. 768A115,768A115,1
• Citation: Perkins v. State, 244 N.E.2d 667, 144 Ind.App. 146 (Ind. App. 1969)
• Parties: Robert PERKINS, Dorothy Perkins, Appellants, v. STATE of Indiana, Appellee
• Court: Indiana Appellate Court

Page 667

244 N.E.2d 667

144 Ind.App. 146

Robert PERKINS, Dorothy Perkins, Appellants, v.STATE of Indiana, Appellee.

No. 768A115.

Appellate Court of Indiana, Division No. 1.

Feb. 24, 1969.

Rehearing Denied March 24, 1969. Opinion Superseded 251

N.E.2d 30.

Buck & Bradford, Indianapolis, John D. Clouse, Evansville, for appellants.

John J. Dillon, Atty. Gen., State of Indiana, Ronald S. Timmons, Deputy Atty. Gen., Indianapolis, for appellee.

COOPER, Judge.

This is a consolidated appeal of two causes from the Superior Court of Marion County, wherein each of the appellants initiated an action by filing in that court what was denominated as a 'Claim Against the State of Indiana Arising out of Implied Contract.'

Each of these 'claims' alleged, in substance, that on or about July 9, 1966, the appellants rented a cottage from the State of Indiana in Lincoln State Park and paid one week's rent therefor; that the defendant knew the plaintiffs had rented the cottage to use the recreational facilities of the park; that the defendant impliedly warranted to the plaintiffs that the park and its facilities were safe to be used; that the plaintiffs used the park facilities; that the beach and lake of said park were contaminated by raw sewage, as a result of which the plaintiffs and their children became ill.The plaintiffs alleged damages including loss of income and medical expense incurred, and the appellantRobert Perkins, in a second paragraph of his 'claim' alleged loss of services of his wife and his children.The appellantRobert Perkins prayed for judgment in the amount of $15,000.00 in each paragraph of his 'claim', and the appellantDorothy Perkins prayed for judgment in the amount of $15,000.00 in her 'claim'.

The defendantState of Indiana filed in each of the causes of action, a Motion to Dismiss which alleged, in substance, that the 'claims' were not actions on contract, that the State had not consented to be sued for damages, and that the court did not have jurisdiction of the causes of action.Thereafter the court sustained the motions to dismiss and these appeals followed.The appeals were originally filed in the Supreme Court and that Court consolidated the two causes.Thereafter the Supreme Court ordered the case transferred to this Court.

It appears from the record that the plaintiffs-appellants based their 'claims' on the provisions of Burns' Indiana Statutes, Sec. 3-3401, which reads in part as follows:

'* * * Any person or persons having or claiming to have a money demand against the state of Indiana, arising, at law or in equity, out of contract, express or implied, * * * may bring suit against the state therefor in the superior court of Marion County, Indiana * * *.'

The appellants' assigned error on appeal is that the court erred in sustaining the appellee's motions to dismiss the appellants' claims and in dismissing the appellants' claims.

Our Supreme Court in considering the propriety of motions to dismiss, stated in the case of State ex rel. Calumet Nat'l Bank of Hammond v. McCord(1962)243 Ind. 626, at page 628, 189 N.E.2d 583, at page 584:

'At the outset, we observe that a motion to dismiss is not normally the proper procedural method of testing the sufficiency of a complaint, nor for considering whether or not the plaintiff has stated a good cause of action.A demurrer is the method by which such legal questions are raised.A motion to dismiss should not be perverted for that purpose.The sustaining of a demurrer gives the plaintiff an opportunity to amend, while the sustaining of a motion to dismiss cuts off such rights which the statute would normally give a plaintiff.(Authorities omitted.)

'It is stated in all the cases above that a court may not enter an order of involuntary non-suit or dismissal against a plaintiff except where there be a statutory ground or a total lack of jurisdiction.(Our emphasis). * * *

'However, even though the motion to dismiss is improper procedurally, this court has held that such a motion will be treated in unusual instances as a demurrer if the complaint or petition could not possibly be amended to state a good cause of action in connection with the controversy.In other words, if the facts pleaded are so palpably defective or irrelevant that they show the plaintiff has no cause of action whatever under any theory, this court will not do the useless or futile act of sending the case back merely for procedural consistency when it can be expeditiously disposed of here.Lambert v. Smith, State Fire Marshal(1939), 216 Ind. 226, 23 N.E.2d 430;Yelton v. Plantz(1948), 226 Ind. 155, 77 N.E.2d 895.

'Such a rule treating a motion to dismiss as a demurrer can be supported only as one of sensible expediency.It must be applied with the greatest of caution and only when it is clear that no amendment or alteration of the complaint could give the plaintiff a good cause of action.Those instances are rare, but we believe such is the situation at this time before us.'

We are of the opinion that the facts alleged in the plaintiffs' 'claims' in this case sound in tort; therefore the 'claims' could never be amended to state a cause...