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LEICK v. PHELAN

December 11, 1973

HERMAN E. LEICK, ADMINISTRATOR OF THE ESTATE OF JAMES A. MAXWELL, DECEASED, PLAINTIFF,
v.
FRANCIS J. PHELAN AND PATRICIA ANDERSON, SPECIAL ADMINISTRATORS OF THE ESTATE OF FRANK A. ANDERSON, DECEASED, DEFENDANTS.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the defendants' motion to dismiss.

This is an action seeking to redress the wrongful death of James A. Maxwell pursuant to the Illinois Wrongful Death Statute, Chapter 70, § 1 et seq. of the Illinois Revised Statutes. Jurisdiction in this Court is based on diversity of citizenship. The amount in controversy allegedly exceeds ten thousand dollars exclusive of interest and costs.

The plaintiff, Herman E. Leick, is a resident of the City of Corbin, Kentucky, and was the duly appointed Administrator of the Estate of James A. Maxwell, deceased, by the Knox County Court on September 21, 1973. The defendants are Francis J. Phelan and Patricia Anderson, both residents of the state of Illinois. The plaintiff seeks to have this Court name them Special Administrators of the Estate of Frank A. Anderson, deceased, pursuant to the Illinois Civil Practice Act, Chapter 110, Section 54. No petition for Letters of Administration has been filed in the matter of the Estate of Frank A. Anderson. The plaintiff seeks to have Frank A. Anderson's spouse, Patricia Anderson, named as a party-defendant, pursuant to Chapter 110, Section 54 of the Illinois Revised Statutes, so that she might be properly advised of the pending action against said decedent's estate.

The plaintiff in the complaint alleges the following facts, inter alia:

  1. On or about July 20, 1972 Frank A. Anderson was
    operating a motor vehicle on an Illinois highway,
    Route 25, moving in a northwesterly direction
    toward a Chicago and Northwestern Railroad bridge
    in the vicinity of Gilbert Street in St. Charles,
    Illinois.
  2. James A. Maxwell was a passenger in the automobile
    driver by Frank A. Anderson. At all times pertinent
    to this action James A. Maxwell was exercising due
    care and caution for his own safety and the safety
    of others, and Frank A. Anderson had the duty to
    operate the motor vehicle so as not to injure James
    A. Maxwell.
  3. In violation of this duty Frank A. Anderson did
    commit one or more of the following acts:
    a. did operate the vehicle at an excessive speed in
    light of the conditions prevailing;
    b. did operate the vehicle into the wrong lane of
    traffic;
    c. did operate the vehicle without proper lookout
    for traffic or obstructions.
  4. As a direct and proximate result of one or more of
    the above negligent acts the motor vehicle in which
    they were riding was caused to collide with a
    railroad bridge's foundation running over Route 25,
    causing the deaths of James A. Maxwell and Frank A.
    Anderson.

The defendants, in support of their instant motion to dismiss, contend that the instant complaint attempts to join Patricia Anderson and Francis J. Phelan as representative parties-defendant for Frank A. Anderson while, in fact, Francis J. Phelan and Patricia Anderson are not representatives of the Estate of Frank A. Anderson and are not subject to jurisdiction in a ...


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