Hardin v. Interstate Motor Freight System, 26 F. Supp. 97 (S.D. Ohio 1939)

Jacobson & Durst, of Dayton, Ohio, for plaintiff.

O. M. Southard, of Dayton, Ohio, for defendant.

NEVIN, District Judge.

This cause is now before the court on a motion filed November 30, 1938, wherein defendant seeks to have certain allegations stricken from the petition, all as in the motion set forth. The motion contains seven separate paragraphs containing requests to strike.

Upon a consideration of the motion and the briefs of counsel, the court finds and concludes as follows:

1. So much of the motion as is contained in paragraphs 1, 2, 4, 5, 6 and 7, the court finds not well taken, and the motion as to each of said paragraphs is overruled.

2. The court will consider so much of the motion as is contained in paragraph 3 thereof as a motion to strike out the entire third paragraph of the petition beginning with the words "said collision" and ending with the words "said highway", and as such the court finds it to be well taken and sustains the same, and said third paragraph is ordered stricken in its entirety from the petition.

Counsel for plaintiff, in their briefs, refer to the New Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and particularly to Form 9 attached thereto. As they state, the New Rules and this form indicate that a mere general charge of negligence is sufficient, without specification. For this reason, based on their own contention, if form 9 is to be followed, the allegations contained in the third paragraph of the petition have now no place therein.

An order may be drawn in keeping with this decision. Plaintiff may have 20 days after the order is filed in which to file her amended petition.