Summary
In Blake v. De Vilbiss, the plaintiff's suit was dismissed by the trial judge for failure of plaintiff to comply with an order of court to file more specific averments of negligence.
Summary of this case from Adcox v. Southern Ry. Co.Opinion
No. 8423.
January 7, 1941.
Appeal from the District Court of the United States for the Northern District of Ohio; Frank LeBlond Kloeb, Judge.
Action by Lois Blake, administratrix, against the De Vilbiss Company, for injuries caused by diseases resulting from employer's negligence. From a judgment dismissing the action, plaintiff appeals.
Affirmed.
Paul D. Smith, and Thomas H. Sutherland, both of Marion, Ohio, for appellant.
Doyle Lewis, Milo J. Warner, and William C. Moore, all of Toledo, Ohio, for appellee.
Before HICKS, SIMONS and HAMILTON, Circuit Judges.
It appearing that the appellant's decedent filed an action in the court below in which he charged that while in the employ of the defendant, from September 3, 1928, to September 1, 1931, in the states of New York and Massachusetts, the defendant inflicted upon the plaintiff some 17 respiratory diseases and 7 or 8 organic diseases because of its negligence in failing to furnish the plaintiff with pure air to breathe, and because of other negligent omissions; and
It appearing that the District Court, concluding the petition not sufficiently definite or certain to apprise the defendant of the basis for the relief claimed, or to permit a recovery, required the plaintiff to file an amended petition avoiding prolixity and surplusage and stating precisely his claims and the grounds of negligence upon which he relied; and
It appearing further that the first and second amended petitions filed by the appellant, as administratrix of the decedent's estate and as successor to the original plaintiff, were equally prolix and indefinite not only in respect to specific diseases suffered and the acts of negligence complained of, but also to the time or place of their commission, and their proximate relations to the injury, and were also dismissed; and,
It further appearing that the third amended petition was subject to the same infirmities as the original and earlier amended petitions, and does not conform to rule 8(e)(1) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and that neither the original plaintiff nor his successor conformed to the orders of the court requiring the petition to be made definite and certain, and that the defendant moved for dismissal of the action under rule 41(b), and that the court granted the motion; and
It being our view that there was no abuse of discretion in the judgment of dismissal,
It is ordered that the judgment be and it is hereby affirmed.