Wallace v. Woods, 1070A171

• Decision Date: 20 July 1971
• Docket Number: No. 1070A171,No. 1,1070A171,1
• Citation: 271 N.E.2d 487,149 Ind.App. 257
• Court: Indiana Appellate Court
• Parties: James E. WALLACE, Appellant, v. Warren WOODS, Appellee

Page 487

271 N.E.2d 487

149 Ind.App. 257

James E. WALLACE, Appellant, v. Warren WOODS, Appellee.

No. 1070A171.

Appellate Court of Indiana, In Bank, Division No. 1.

July 20, 1971.

Rehearing Denied Aug. 19, 1971.

John L. Carroll, Charles C. Griffith, Evansville, for appellant; Johnson & Carroll, Evansville, of counsel.

Joe S. Hatfield, Donald R. Wright, Fine, Hatfield, Sparrenberger & Fine, James M. Schwentker, Jr., Norton & Schwentker, Evansville, for appellee.

LOWDERMILK, Judge.

This is an action brought by plaintiff-appellant to recover damages for the death of his minor son, Keith Quinn Wallace, who died June 26, 1969, from injuries received in a motorcycle accident on June 19, 1969. The appellant's son was 19 years of age and at the time of the accident was home on leave of duty from Vietnam and had been living at home with his parents for a period of 29 days during his leave of duty.

On the morning of June 19, 1969, appellant's son was operating a motorcycle in an easterly direction on Bellemeade Avenue in Evansville, Indiana. As he approached Evans Avenue the appellee entered the intersection travelling south on Evans Avenue. The collision that caused the death of appellant's son resulted.

The appellant brought suit in two paragraphs of complaint. The first pleading paragraph alleges damages for the services of doctors, surgeons, nurses, and hospital care resulting from the collision between the date of the accident and the time of the minor son's death, together with a pecuniary loss to the appellant for the lost acts of kindness of the minor son, along with the funeral expenses for the minor son.

The second pleading paragraph alleges damages not only for those items set forth in pleading paragraph one, but also for medical and hospital expenses incurred in the birth of the son, the cost of food, clothing and shelter paid to raise the son from birth until the date of his death. The appellant further prays for the cost of schooling and education from birth to 19 years, the cost of medical and dental care and for the fair value of care, attention and instruction given to the minor son by the appellant and his wife from the birth of the son until the age of 19 years. The total amount that the appellant claims he was damaged is the sum of $85,000.

The defendant-appellee then filed a composite motion, consisting of a motion to strike parts of pleading Paragraph I of plaintiff's complaint and a motion to make pleading Paragraph I of plaintiff's complaint more specific. The defendant also filed a motion to strike pleading Paragraph II, a motion to strike parts of pleading Paragraph II, and a motion to make parts of pleading Paragraph II more specific.

The trial court sustained the motion to strike pleading Paragraph II of plaintiff's complaint and allowed the plaintiff reasonable time to plead further, which the plaintiff chose not to do.

The appellee then filed his answer to pleading Paragraph I of plaintiff's complaint for wrongful death, and after answering all interrogatories, filed a motion for summary judgment, which is here set out:

'Motion for Summary Judgment

'The defendant, by his attorneys, Fine, Hatfield, Sparrenberger & Fine, hereby moves the Court to enter a summary judgment for the defendant in this action on the grounds that the pleadings in this case together with plaintiff's answers to defendant's interrogatories and admissions show that the plaintiff is not entitled to a judgment in this action as a matter of law.'

Subsequent to this motion the appellant's wife filed an affidavit in opposition to appellee's motion for summary judgment, which affidavit reads as follows (omitting formal parts):

'Anita R. Wallace, being first duly sworn upon her oath, deposes and says:

'1. That she is the natural mother of one Keith Quinn Wallace, now deceased.

'2. That the said Keith Quinn Wallace entered military service on December 5, 1967 and might have been discharged anytime prior to December 1, 1970 for any of the following reasons:

'a. That the said Keith Quinn Wallace had experienced a kidney infection prior to entering the military service and further while he was in military service, suffered extreme nervousness, mononucleosis and nervous stomach and was hospitalized for nervousness and mononucleosis during the time he was in military service in June of 1968

'b. That the conflict in Vietnam could have ended anytime prior to December 1, 1970 and by reason thereof the said Keith Quinn Wallace could have been discharged

'c. That instead of having been accorded his normal two (2) weeks tour of rest and recreation while in the military service and while having served in the Vietnam conflict, the said Keith Quinn Wallace has only been granted three (3) days of rest and recreation and by reason thereof the additional time due him for rest and recreation could have shortened his time for discharge

'3. That prior to entering military service and at all times that this affiant conversed with the said Keith Quinn Wallace, Keith Quinn Wallace indicated his intention to come back home and live with his parents, James E. Wallace and this affiant following his discharge from military service for the reason that Keith Quinn Wallace had not finished high school and intended to live at home and complete his schooling, following military service.

'4. That at the time of the accident in question the said Keith Quinn Wallace had been living at home with his parents, James E. Wallace and this affiant for a period of twenty-nine (29) days, while on leave from the military service and was subject to parental control during his leave.'

On June 30, 1970, the court heard the defendant's motion for summary judgment and rendered its judgment, which judgment is as follows:

'Come now the parties by counsel and the plaintiff having refused to plead further as to pleading paragraph II of his complaint, the Court now enters judgment against the plaintiff and for the defendant as to pleading paragraph II of plaintiff's complaint.

'And now the Court after hearing oral argument and being duly advised in the premises now sustains the motion of the defendant to strike parts of the affidavit of Anita R. Wallace filed in opposition to the defendant's motion for summary judgment and numerical paragraphs 2 and 3 of the affidavit of Anita R. Wallace are now stricken from said affidavit.

'And now the Court after a hearing and oral argument on the defendant's motion for summary judgment and being duly advised in the premises now finds that at the time of the death of Keith Wallace, plaintiff's decedent, that the said Keith Wallace was emancipated by reason of being a member of the armed forces of the United States and that pleading paragraph I of plaintiff's complaint is brought pursuant to Section 2--217, Ind.Ann.Stat., Burns' for the alleged loss of services of said Keith Wallace and that by reason of the emancipation of the decedent, Keith Wallace, the plaintiff is not entitled to the services of the said Keith Wallace and there being no genuine issue on said material facts that the defendant's motion for summary judgment should be sustained.

'IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that plaintiff take nothing by paragraph II of his complaint herein.

'IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that the defendant's motion for summary judgment be and is hereby sustained.

'IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that the plaintiff take nothing by paragraph I of his complaint herein against the defendant and that the costs of this action are assessed against the plaintiff.'

The plaintiff-appellant timely filed his motion to correct errors, which was overruled by the trial court on July 30th, 1970. The errors that were alleged was that there was uncorrected error of law occurring and properly raised in the proceedings prior to the trial, in that the trial court struck Paragraph II of plaintiff's complaint, and secondly, that the decision of the trial court is contrary to law.

The appellant presents an in-depth argument as to why the trial court should not have struck Paragraph II of his complaint. This particular pleading paragraph prays for monetary damages on a 'lost investment' theory. This theory would allow the appellant to recover for his expenditures in maintaining and caring for his deceased minor son from the time of the decedent's birth; including the cost of food, clothing, shelter, dental care, schooling and a fair value for attention and instructions given to the decedent for the nineteen years of his life on behalf of the appellant and his wife.

When the trial court struck Paragraph II of the complaint the question of emancipation had not been brought to issue. The reason for this is because neither of the two Paragraphs of the complaint indicated that the decedent may have been emancipated at the time of the accident. Thus, we must answer the question considering only what was before the trial court at the time of the striking and defer the question of emancipation in our treatment of the summary judgment.

It is undisputed that this case was brought to trial under Ind.Ann.Stat. § 2--217 (Burns' 1967 Replacement), I.C.1971, 34--1--1--8, which allows a parent to bring an action for injury or death of his child. The governing statute is set out as follows:

'Action for injury or death of child.--A father, or in case of his death, or desertion of his family, or imprisonment, the mother, or in case of divorce the person to whom custody of the child was awarded, may maintain an action for the injury or death of a child; and a guardian may maintain such action for the injury or death of his ward; in case of death of the person to whom custody of the child was awarded, a guardian shall be appointed to maintain an action for the injury or death of his ward. But when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward. (Acts 1881 (S...