'16. With reference to your answer to Interrogatory #1, state the name and address of the person employed by you who first received notice of this accident on or about February 9, 1953. A. Joseph Nolan, Office Manager.
'17. With reference to your answer to Interrogatory #2, give the name and address of the person who conducted the investigation on February 9, 1953. A. Joseph Nolan, Office Manager.
'18. With reference to your answer to Interrogatory #2, state the name and address of the person who turned the matter over to (your insurance company) and state whether the matter was turned over by telephone or by letter. If by letter, attach copy of same hereto. A. Joseph Nolan gave the information to James L. Maher, Office Manager, of Carload Contractors, Inc., as a result of which the attached accident report signed by Jonathan Wainwright, Treasurer of Carload Contractors, Inc. was forwarded to (the insurance company) on February 10, 1953.
'19. State whether or not any person on your behalf submitted a written report of the accident to (your insurance company). If so, give the name and address of such person, the date of said written report and attach copy of same hereto. A. Yes, the attached report
dated April 29, 1953, was submitted to the insurance company after suit was started.'
11. Defendant now admits that on February 9, 1953, it owned the fork lift in the custody of Sandy Johnson and that this fork lift was leased to Carload Contractors, Inc. It is also admitted that the pier on which the accident occurred was leased by defendant.
12. There is no indication of action by either party in bad faith and there is no proof of inaccurate statements being made with intent to deceive. Because defendant made a prompt investigation of the accident (see answers to Interrogatories 1, 2, 16 and 17), its insurance company has been representing the defendant since suit was brought, and this company insures Carload Contractors, Inc. also, requiring defendant to defend this suit, will not prejudice it.
Under these circumstances, and for the purposes of this action, it is ordered that the following shall be stated to the jury at the trial:
'It is admitted that, on February 9, 1953, the towmotor or fork lift bearing the initials 'P.P.I.' was owned by defendant and that Sandy Johnson was a servant in the employ of defendant and doing its work on that date.'
This ruling is based on the following principles:
1. Under the circumstances of this case, the answer contains an ineffective denial of that part of paragraph 5 of the complaint which alleges that 'a motor driven vehicle known as a fork lift or chisel (was) owned, operated and controlled by the defendant, its agents, servants and employees.'
F.R.Civ.P. 8(b), 28 U.S.C. provides:
'A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. * * * Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder.'
For example, it is quite clear that defendant does not deny the averment in paragraph 5 that the fork lift came into contact with plaintiff, since it admits, in the answers to interrogatories,
that an investigation of an occurrence of the accident had been made and that a report dated February 10, 1953, was sent to its insurance company stating 'While Frank Zielinski was riding on bumper of chisel and holding rope to secure cargo, the chisel truck collided with another chisel truck operated by Sandy Johnson causing injuries to Frank Zielinski's legs and hurt head of Sandy Johnson.' Compliance with the above-mentioned rule required that defendant file a more specific answer than a general denial. A specific denial of parts of this paragraph and specific admission of other parts would have warned plaintiff that he had sued the wrong defendant.
Paragraph 8.23 of Moore's Federal Practice (2nd Edition) Vol. II, p. 1680, says: 'In such a case, the defendant should make clear just what he is denying and what he is admitting.' See, Kirby v. Turner-Day & Woolworth Handle Co., D.C.E.D.Tenn.1943, 50 F.Supp. 469.
This answer to paragraph 5 does not make clear to plaintiff the defenses he must be prepared to meet. See Winslow v. National Elec. Products Corp., D.C.W.D.Pa.1946, 5 F.R.D. 126, 130-131.
Under circumstances where an improper and ineffective answer has been filed, the Pennsylvania courts have consistently held that an allegation of agency in the complaint requires a statement to the jury that agency is admitted where an attempt to amend the answer is made after the expiration of the period of limitation. See Burns v. Joseph Flaherty Co., 1924, 278 Pa. 579, 582-583, 123 A. 496; Boles v. Federal Electric Co., 1926, 89 Pa.Super. 160, 163-164. Although the undersigned has been able to find no federal court decisions on this point, he believes the principle of these Pennsylvania appellate court decisions may be considered in view of all the facts of this case, where jurisdiction is based on diversity of citizenship, the accident occurred in Pennsylvania, and the federal district court is sitting in Pennsylvania. In the Boles case, the court adopted the opinion of Judge Finletter, of the lower court, which contained this language, 89 Pa.Super. at pages 163-164:
'A general denial controverts the paragraph as a whole, and would be quite truthful, if but a fraction of the allegations answered were incorrect. (Citing cases.)
'The denial that any employe of the defendant directly or indirectly caused the injury might mean, either that the actor was not an employe of the defendant, or that, being the employe, he did not cause the injury.
'The agency, for the defendant, of the persons by whom the act was committed, that is, their employment by it was, in our opinion, properly taken by the trial Judge as an admitted fact. Of course, this carried with it no proof that these agents committed the act complained of, or that they were negligent, and the trial Judge so limited the admission, saying only that, 'The defendant, the Federal Electric Company, has admitted that it was its men who were doing this work.'
'Counsel for the defendant asked leave to amend 'to the effect that we were not in the premises at the time.' Passing the point that such an amendment would not have made the affidavit effective, we are of opinion that an amendment could not, with justice, have been permitted at this late date. Four years had elapsed since the accident, when the motion was made; and two years since the case was put at issue. In the meanwhile, the statute of limitations had run, and a suit against any other person was barred. In other words, the plaintiff through the careless pleading, if it was careless pleading, of the defendant was deprived of all chance to recover for the serious injuries he had suffered. There is reason for requiring from a defendant, in such a case as this, a prompt and certain statement of his relation to the individual whose negligence causes injury to a plaintiff. The employment of such a person, his, and his immediate employer's, relation to the work in question, are matters nearly always unknown to the injured person. Whether the immediate actor is working on his own account, or is agent for a third person, and who that third person is, and also the latter's relations to the work, depend so often upon private contracts that the injured party is at a loss to know who, in fact, is at fault.'
2. Under the circumstances of this case, principles of equity
require that defendant be estopped from denying agency because, otherwise, its inaccurate statements and statements in the record, which it knew (or had the means of knowing within its control) were inaccurate, will have deprived plaintiff of his right of action.
If Interrogatory 2 had been answered accurately
by saying that employees of Carload Contractors, Inc. had turned the matter over to the insurance company,
it seems clear that plaintiff would have realized his mistake. The fact that if Sandy Johnson had testified accurately, the plaintiff could have brought its action against the proper party defendant within the statutory period of limitations is also a factor to be considered, since defendant was represented at the deposition and received knowledge of the inaccurate testimony.
At least one appellate court has stated that the doctrine of equitable estoppel will be applied to prevent a party from taking advantage of the statute of limitations where the plaintiff has been misled by conduct of such party. See, Peters v. Public Service Corporation, 132 N.J.Eq. 500, 29 A.2d 189, 195 (1942).
In that case, the court said, 29 A.2d at page 196:
'Of course, defendants were under no duty to advise complainants' attorney of his error, other than by appropriate pleadings, but neither did defendants have a right, knowing of the mistake, to foster it by its acts of omission.'
This doctrine has been held to estop a party from taking advantage of a document of record where the misleading conduct occurred after the recording, so that application of this doctrine would not necessarily be precluded in a case such as this where the misleading answers to interrogatories and depositions were subsequent to the filing of the answer, even if the denial in the answer had been sufficient. See, J. H. Gerlach Co., Inc. v. Noyes, 1925, 251 Mass. 558, 147 N.E. 24, 26-27, 45 A.L.R. 961; East Central Fruit Growers, etc., v. Zuritsky, 1943, 346 Pa. 335, 338, 30 A.2d 133.
Closely related to this doctrine is the principle that a party may be estopped to deny agency or ratification. See Section 103 of Restatement of Agency and Hannon v. Siegel-Cooper Co., 1901, 167 N.Y. 244, 60 N.E. 597, 52 L.R.A. 429.
Since this is a pre-trial order, it may be modified at the trial if the trial judge determines from the facts which then appear that justice so requires. See, Smith Contracting Corp. v. Trojan Const. Co., Inc., 10 Cir., 1951, 192 F.2d 234, 236, and cases there cited; cf. Fernandez v. United Fruit Co., 2 Cir., 1952, 200 F.2d 414.