United States Veterans Administration for the reason that the defendant's disability was rated at less than ten per cent. from that date."

It is further averred that the moneys, the return of which is sought, "was paid by the plaintiff to the defendant under a mistake of fact". *

Just what the mistake of fact was does not appear, unless it may be said to have been that the payments were continued under the mistaken notion that there had been no change in the disability rating. The plain truth seems to be that the change in disability rating was not followed up with a finding by the "Adjudicator" that the payments should be reduced or discontinued. The Statement of Claim does

not disclose a cause of action.

***

The motion to dismiss is granted, and, if necessary, a formal order may be submitted.

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Martin Sierocinski v. E. I. DuPont De Nemours & Co.

Editorial Headnote

1. In action against the manufacturer of dynamite caps to recover for personal injuries resulting from the explosion of one of the caps during the process of crimping it, plaintiff alleged the negligent manufacture and distribution of the cap in such fashion as to make it explode when crimped. The Circuit Court of Appeals in reversing order dismissing complaint for failure to set forth any specific act of negligence, held that plaintiff need not plead evidence, that "a short and plain statement of the claim showing that the pleader is entitled to relief" is sufficient as a pleading and that further information if needed to prepare a defense, can be obtained by interrogatories. (Rules 8 (e) and 33)

On appeal from the District Court of the United States for

the Eastern District of Pennsylvania.

Before Maris, Biddle and Buffington, Circuit Judges.

BIDDLE, C. J.

The plaintiff's "statement of claim" (complaint), amended under an order of court granting defendant's motion for a more definite statement under Rule 12 (e), alleged that he was injured by the premature explosion of a dynamite cap. Specifically the plaintiff claimed as negligent acts the manufacturing and distributing of the cap "in such a fashion that it was unable to withstand the crimping which defendant knew it would be subjected to"; and distributing a cap so constructed that it would explode upon being crimped, without warning, the defendant knowing it would be crimped. Judge Kalodner granted the defendant's motion to strike this

amended statement, as failing to set forth any specific act of negligence, and dismissed the action. From his order the plaintiff appealed to this court.

The plaintiff, as alleged, was injured while "crimping" a dynamite cap manufactured by the defendant and supplied to him by his employer. "Crimping" is a necessary and anticipated process in using the cap.

Appellant, admitting that a manufacturer is liable for injuries to a person from the use of a defectively manufactured article, argues that it is not put on notice by the complaint as to whether it must meet a claim of warranty, of misrepresentation, of the use of improper ingredients, or of faulty inspection.

But there is a specific averment of negligent manufacture and distribution of the cap in such a fashion as to make it explode when crimped. A plaintiff need not plead evidence. He "sets forth a claim for relief" when he makes "a short and plain statement of the claim showing that the pleader is entitled to relief (Rule 8 (a) (2))." The same rule ((e) (1)) requires that "each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required"; and (f) "all pleadings shall be so construed as to do substantial justice". Form 9 in the Appendix of Forms attached to the Rules, "intended to indicate • the simplicity and brevity of statement which the Rules contemplate (Rule 84)", contains this concise allegation of negligence: "defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway". If defendant needs further information to prepare its defense it can obtain it by interrogatories (Rule 33).

The judgment is reversed, and the cause remanded for further

proceedings.

Editorial Note

See opinion in this case in 7 Bull. 9 on motion for a more definite statement of claim. (25 F. Supp. 706)

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