Opinion
Action by Hazel Wilson against Gas Service Company, a corporation, wherein plaintiff filed a request for admissions as to facts. On defendant's motion to quash or dismiss the request.
Motion sustained.
Henry A. Riederer and Fred J. Freel, Kansas City, Mo., for plaintiff.
Chas. M. Miller, Kansas City, Mo., for defendant.
REEVES, Chief Judge.
Under the provisions of Rule 36, Federal Rules of Civil Procedure, 28 U.S.C.A., the plaintiff has filed 23 requests for admissions as to facts in the case. The first request is typical and illustrative of all the others: ‘ That on June 10, 1948, a gas explosion and subsequent fire occurred in and to the premises at 1235-37 West 75th Street, Kansas City, Missouri.’
The Rule provides that a request for admissions as to ‘ the truth of any relevant matters of fact set forth’ may be served ‘ upon any other party.’ This Rule was properly construed in the case of Hopsdal v. Loewenstein, D.C., 7 F.R.D. 263, where District Judge La Buy of the N.D. of Illinois E. D. said in citing another case, Booth Fisheries Corp. v. General Foods Corp. D.C., 1939, 27 F.Supp. 268, 271. " In submitting to plaintiff for admission the truth of statements of fact provable by the testimony of third parties, defendants are seeking to cast upon the plaintiff the burden and expense of proving their case." This is precisely the situation here except that plaintiff is seeking to cast the burden upon defendant. Whether a gas explosion occurred and the causes thereof are provable by third parties and ordinarily would not be within the knowledge of the defendant except upon information and belief. Under such circumstances, the motion to quash or to dismiss the request for admissions should be sustained, and it will be so ordered.