1 F.R.D. 504 | S.D. Ohio | 1940
On May 24, 1940, plaintiff filed his bill of complaint herein. The action is premised on certain alleged acts of negligence.
On August 10, 1940, defendant, The Springfield Yellow Cab Company, filed a motion.“to strike certain words and phrases from complaint.” The cause is now before the court on this motion.
The motion contains five subparagraphs, numbered from 1 to 5, inclusive. In each subparagraph, respectively, the “words and phrases” which the defendant seeks to have stricken are set forth. Briefs in support of and contra the motion have been filed. The court has considered the arguments of counsel as set forth in their briefs, together with the authorities cited.
Plaintiff submits that motions such as here under consideration are not now favored by the courts, citing Kraus v. General Motors Corporation, D.C., 27 F.Supp. 537. However, since the adoption of the Rules of Civil Procedure the necessary allegations in a complaint for negligence have been very greatly simplified, as indicated by Form 9, Appendix of Forms, 28 U.S.C.A. following section 723c — one of the forms referred to in Rule 84, 28 U.S.C.A. following section 723c.
Upon a consideration of the motion and the applicable law, the court finds:
1. That so much of the motion as is contained in Subparagraph 1 thereof is well taken, and that it should be, and it is, sustained.
2. That so much of the motion as is contained in Subparagraph 2 thereof, to this extent, to-wit: “to stop said taxicab within the assured clear distance ahead, or”, is well taken, and that to that extent the motion as contained in Subparagraph 2 thereof should be, and it is, sustained, but that as to the remainder of Subparagraph 2 the motion is not well taken, and that it should be, and it is, overruled.
3. That so much of the motion as is contained in Subparagraph 3 thereof is not well taken, and that it should be, and it is, overruled.
4. That so much of the motion as is contained in Subparagraph 4 thereof is not well taken, and that it should be, and it is, overruled.
5. That so much of the motion as is contained in subparagraph 5 thereof is not well taken, and that it should be, and it is, overruled.
While some of the allegations above referred to might have been eliminated under the present Rules of Civil Procedure, nevertheless, the court has permitted them to remain in on the theory that their presence can in no way harm the defendant. Kraus v. General Motors Corporation, supra.
Counsel may prepare and submit an order in accordance with the ruling of the court and granting plaintiff 30 days from the date of the filing of such order within which to file an amended bill of complaint, if plaintiff desires so to do.