Kirby v. Turner-Day & Woolworth Handle Co.
| Decision Date | 29 June 1943 |
| Docket Number | No. 521.,521. |
| Citation | 50 F. Supp. 469 |
| Parties | KIRBY v. TURNER-DAY & WOOLWORTH HANDLE CO. |
| Court | U.S. District Court — Eastern District of Tennessee |
Whitaker, Hall, Haynes, & Allison, of Chattanooga, Tenn., for plaintiff.
John S. Carriger, of Chattanooga, Tenn., for defendant.
By motion the plaintiff prays for an order requiring the defendant to make its answer more specific, or to file a bill of particulars, in two respects.
(1) The third paragraph of the complaint charges that the plaintiff's intestate was struck and killed by an automobile operated on behalf of the defendant by its employe, Skeen Thorne, in the course of his employment.
In response to this averment the answer admits that the car belonged to the defendant and was being operated by Skeen Thorne but neither admits or denies that Thorne was an agent of the defendant and that he was acting in the course of his employment, unless such denial is construed to be within a general denial placed at the close of the answer. The plaintiff contends that this does not meet the requirements of Rule 8(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
While a number of courts in construing Rule 12(e) Federal Rules of Civil Procedure seem to make no distinction between a motion "for a more definite statement" and a motion "for a bill of particulars", I think the Rules contemplate a distinction. It seems to me that the right for a more definite statement comes where the pleading might be vague and uncertain and there is a request to clarify, while a bill of particulars would be a request for details not included in the pleadings.
My idea is that the part of the defendant's motion under consideration is asking for a more definite statement or a clarification of whether the driver of the defendant's automobile was at the time the defendant's agent and about the defendant's business.
In a study of Rule 8(b) I have concluded that a general denial is intended to cover whole averments or paragraphs and that if it is intended to admit a part of an averment or a qualification of an averment, the pleader is then required to specify so much as he admits and specifically deny the remainder. I think any other construction would tend to create confusion and misunderstandings.
By the wording of the rule there is permitted a general denial of all averments except such designated averments or paragraphs as are expressly admitted. It is not contemplated that a pleader may admit a portion...
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...* TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.1 See Kirby v. Turner-Day & Woolworth Handle Co., 50 F.Supp. 469, 470 (E.D.Tenn.1943); 2A Moore's Federal Practice P 8.23, at 1828 (2d ed. 1975) (hereafter "Moore's "); 5 C. Wright & A. Miller, Feder......
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