The opinion of the court was delivered by: AVIS
This is a motion made in behalf of defendant Tide Water Associated Oil Company to strike the complaint, the notice stating the reasons to be "that the same fails to state a claim upon which relief can be granted; for the reason that the same fails to set forth a cause of action against this defendant, by reason of the fact that it affirmatively appears from the complaint that the plaintiff was a tenant of this defendant, and as such this defendant owed the plaintiff no duty in regard to the matters and things contained in the complaint, and said complaint fails to allege any duty that this defendant owed the plaintiff under the circumstances disclosed in the complaint."
I think I should first correct erroneous ideas that both counsel apparently have of the practice in this court.
Rule 12(b) provides that all defenses, in law or in fact, shall be asserted in the responsive pleading, except that certain defenses may be made by motion, among which is "(6) failure to state a claim upon which relief can be granted."
Rule 12(c) provides "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings."
In all of the above instances the motion is directed to the pleadings, which may include the facts set forth in bills of particulars hereinafter referred to, but no affidavits or other evidence of any character may be used to sustain the motion.
Of course, if a litigant by offering proofs desires to attack the right of the other litigant to recover, the provisions of Rule 56 are controlling. In pursuance of that rule, under the conditions stated therein, either plaintiff or defendant may move for a "summary judgment" and may then offer proof of facts not contained in the pleadings.
It is apparent also that counsel have followed the New Jersey State practice with relation to the demand for, and furnishing of, a bill of particulars.
Rule 12(e) requires the application be made to the court for a bill of particulars or for a more definite statement of the pleadings, and such added information, if any is allowed by the court, becomes "a part of the pleading which it supplements."
If information is desired to prepare for trial, it may be obtained by using the interrogatory (Rule 33) or deposition (Rule 26) provisions of the Federal Rules.
I shall have to consider the present motion upon the complaint alone. The bill of particulars was not obtained in accordance with the rules, and the copy of lease presented to the Court cannot be considered thereunder.
The complaint generally alleges that prior to October 30, 1938, defendant Tide Water Associated Oil Company (hereinafter called Company) was in possession of a tract of land in Bridgeton, New Jersey, and erected thereon a gasoline sales and service station, and installed therein a certain heating system, including boiler, radiators, etc.; that said Company entered into a contract with Herbert H. Conway, Inc., to perform the work and furnish material; that one Horner, as a subcontractor, was employed to actually install the heating apparatus, all being done under the supervision and control of Company. It is claimed that the duty of defendants was to use reasonable care that there should be no hidden danger or defect in materials or installation; that the work was negligently done, specifying negligence in installation and manner of placing automatic aquastat and thermostat, circulator, controls and valves, creating a hidden danger, causing, when operated, a great and excessive amount of steam, creating a great pressure and making an explosion likely.
It is further alleged that on or about September 15, 1938, Company entered into a lease agreement with plaintiff, and plaintiff entered into possession of said land and premises so ...