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 dеfendant 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 cаses and plaintiff has not responded.
In a wrongful death action under Indiana practice, failure to allege the existenсe of one or more beneficiaries mentioned in the Wrongful Death Act makes the complaint subject to demurrer for failurе to state a cause of action. Stewart v. Terre Haute & I. R. Co., 1885,
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,
The second action is by the widower, as an individual, for personal injuries to himself; property damage; medical expеnses for, and loss of services of, his children; loss of consortium, companionship and services of his wife, both before and aftеr her death; and as next friend, for the personal injuries suffered by his children, Dennis and Merrily.
In this action, defendant moves to strike rhetoricаl paragraph seven of legal paragraph V of the complaint,
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,
In the Burk case, supra, the action was brought by a wife for loss of support, society and maintenance, the Wrongful Death Act being expressly waived. That ease merely held that even if a wife could maintain an action for loss of consortium, which a majority of the court agreed she could not, since the death of her husband occurred within a few hours after the commission of the alleged tort, no loss of support, maintenance and society could havе resulted to her during that period. Citing a number of cases, 109 N.E.2d at pages 408-409, and by way of dictum, the court stated that so far as it could find, wherе a right of action is given to collect for the loss of services, support, maintenance, society, companionshiр, association, etc., usually considered as contained in the word consortium, the period during which recovery may be had fоr such loss is limited to the time between the date of the commission of the injury and the date of the death of the injured spouse. The сourt observed that the recovery for such continuing losses cannot extend beyond the life of the injured spouse.
By reason оf the foregoing, this court concludes that the cause of action for loss of services, etc., prior to the wife’s death, did nоt abate at the death of the wife, nor does the Wrongful Death Act supplant that action; that the loss recoverable is limited to the period between the date of the alleged injury and the death of the plaintiff’s wife; that the portions of rhetoricаl paragraph seven of legal paragraph V of the complaint which relate to damages accruing after the date of death are subject to a motion to strike and should be stricken. To that extent the motion to strike is sustained.
Counsel for plaintiffs are directed to redraft legal paragraph V of the complaint so as to have it conform with this ruling and to file and serve the same within ten days hereof.
Notes
. Here it is alleged “That the plaintiff, George Heuer, has incurred and for many months and years will continue to incur great hospital, surgical, medical, drug and allied expenses in an effort to mend and cure the many and diverse injuries sustained by plaintiff’s wife, Helen Heuer; that the plaintiff’s wife has for many months been prevented from pursuing her duties as a wife and will be prevеnted from pursuing her duties as a wife in the future; that it has been necessary for the plaintiff, George Heuer, to employ various persons to do the housework for his wife, Helen Heuer, and will in the future have to employ persons to do and perform domestic duties in his home; and the plaintiff, George J. Heuer, has further been for many months and will continue for many months and years to be denied and deprived of the consort, companionship, society, affection and service of his said wife, Helen Heuer.”