Opinion
Paul Tucker and Kathleen Tucker brought actions against the A & P Food Stores based on defendant's alleged negligence in selling meat which was allegedly contaminated with trichinae parasites. Defendant filed motions to strike out portions of both complaints.
The District Court, Jones, C. J., held that certain allegations complained of were not unduly redundant or prejudicial to defendant, but that other allegations which did not constitute admissible evidence at trial had no place in the complaint.
Motions overruled in part and sustained in part.
J. Frank Azzarello, A. Alan Meltzer, Cleveland, Ohio, for plaintiff.
Kent H. Meyers, Cleveland, Ohio, for defendant.
JONES, Chief Judge.
These are actions based on defendant's negligence in selling meat which was contaminated with trichinae parasites. In one action plaintiff is the wife who became infected with trichinosis and who sues for injuries caused thereby, and in the other action the plaintiff is the husband who sues for damages for the loss of his wife's services. Both complaints are essentially the same.
Defendant has filed motions to strike paragraphs 1, 3, 4, 5, 6 and 7 of page 2 of both complaints on the grounds that the paragraphs are redundant, immaterial, impertinent and scandalous. Since the pleadings and the motions are the same, they will be treated herein as one.
A motion under Federal Rules of Civil Procedure, Rule 12(f), 28 U.S.C.A. will not ordinarily be granted unless the allegations of the complaint have no possible relationship to the controversy or are clearly prejudicial. Any doubts are to be resolved in favor of the pleading. Friend v. French Paper Co., D.C., 1 F.R.D. 531; Moore v. C. A. Olsen Manufacturing Co., D.C., 7 F.R.D. 269; Steckel v. Beeghly, D.C., 8 F.R.D. 116.
In a negligence action plaintiff is required to show that he has a legal right which has been violated by defendant's negligence and which violation has caused plaintiff's injury. Paragraph 3, 4 and 5 on page 2 of the complaint are allegations relating to causation and negligence. They are, therefore, relevant to the issues and are properly pleaded. They seem not unduly redundant. Paragraph 6 is an allegation of due care on plaintiff's part. While it is not necessary to plead due care, it would not seem that such an allegation is prejudicial to defendant in any way. There is no paragraph 7 on page 2 so it is impossible to consider defendant's objection to it.
Paragraph 1 of page 2 would seem to be unnecessary. There is one essential fact alleged in it, but that fact is alleged elsewhere also. The remainder of the allegations would not constitute admissible evidence at trial, and therefore have no place in the complaint. This paragraph will be stricken from the pleadings.
The motions will be overruled as to paragraphs 3, 4, 5 and 6 and sustained as to paragraph 1.