Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
LEICK v. PHELAN
December 11, 1973
HERMAN E. LEICK, ADMINISTRATOR OF THE ESTATE OF JAMES A. MAXWELL, DECEASED, PLAINTIFF,
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,
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,
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
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
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.
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 ...
Buy This Entire Record For