Nelson H. Weade v. Trailways of New England, Inc.

325 F.2d 1000, 117 U.S. App. D.C. 73, 7 Fed. R. Serv. 2d 101, 1963 U.S. App. LEXIS 3743

Opinions

PER CURIAM.

This is an appeal from a summary judgment for the defendant-appellee in a negligence case, given on findings that the driver of the bus which collided with the plaintiff-appellant’s automobile was an employee of Safeway Trails, Inc., and at the time of the collision was driving the bus over its franchise; and that the defendant-appellee Trailways of New England, Inc., was not the owner or operator of the bus, that the driver was not its employee or agent, and that the bus was not being operated in its business.

The plaintiff-appellant urges that the defendant-appellee Trailways of New England, Inc., and the firm of counsel representing it conspired with Safeway Trails, Inc., to deceive by withholding from the District Court and from the plaintiff-appellant until well after the statute of limitations had run against Safeway Trails, Inc., the fact that the defendant-appellee was not a proper party defendant; that the defendant-appellee is estopped by its actions to assert that it is not a proper party defendant; and that Safeway Trails, Inc., is estopped to plead the statute of limitations and should be added as a party defendant. The District Court, however, made no findings and conclusions on these points, which appear on the record before us to raise substantial issues of fact and law.¹

In our view, the present record does not support the suggestion that the general denial in defendant-appellee’s answer “was the plainest kind of notice to Weade that he had sued the wrong corporation.” The relevant paragraph of the complaint includes allegations of date, place, injury, identity of bus driver, identity of bus owner and operator, collision, negligence of driver, negligence of company, and driver’s status as agent, servant, or employee. Defendant-appellee’s denial of “each and every allegation” of this paragraph, rather than a specific admission of certain allegations, positive denial of others, and denial of others only on the basis of lack of knowledge or information sufficient to form a belief, was, especially in the light of the failure to move immediately for summary dismissal, hardly calculated to give “plain notice.” And defendant-appellee’s later answers to plaintiff-appellant’s interrogatories tend to suggest that defendantappellee knew plaintiff-appellant did not have such notice.

The case is therefore remanded to the District Court with directions to vacate the judgment entered, to make findings of fact and conclusions of law as to the points mentioned, and to enter judgment as it may then be advised. The District Court may in its discretion take further pertinent evidence.

In deciding whether or not plaintiff-appellant is entitled to any relief, the District Court should consider, inter alia, the possible applicability of such authorities as the following: Rules 8 (b), 8(c), 8(d), 11, 12(h), 15(c) and 33 of the Federal Rules of Civil Procedure; 18 U.S.C. § 401; 28 U.S.C. § 1927; Zielinski v. Philadelphia Piers, Inc., 139 F.Supp. 408 (E.D.Pa.1956); Denver v. Forbes, 26 F.R.D. 614 (E.D.Pa.1960); Meltzer v. Hotel Corporation of America, 25 F.R.D. 62, 64 (N.D.Ohio 1960) (on motion for leave to amend complaint) ; Caulfield v. Bethlehem Steel Corp., 195 F.Supp. 360 (E.D.Pa.1961); Alexander v. Alexander, 140 F.Supp. 925, 929-930 (W.D.S.C.1956); Fifth & Walnut, Inc. v. Loew’s Inc., 76 F.Supp. 64, 67 (S.D.N.Y.1948); American Automobile Ass’n v. Rothman, 104 F.Supp. 655 (E.D.N.Y.1952); Crosley Radio Carp, v. Hieb, 40 F.Supp. 261 (S.D.Ia.1941); Prosser on Torts 529-30 (2d ed. 1955).

So ordered.

Footnotes

1

. We do not moan, of course, to intimate any opinion as to whether the allegations made by plaintiff-appellant, as presented to the District Court and to us, are true or false. Further proceedings in the District Court, as directed herein, may show that they are unfounded and unjustified.