EVA COOPER VS. RJR 1954-56
COOPER VS. RJR
1. On June 7, 1954 attorneys or Eve Cooper filed a wrongful death suit against R. J. Reynolds Tobacco Co. It was one of the earliest, if not the earliest, suit filed by smokers or their families seeking compensation from cigarette manufacturers.
2. Mrs. Cooper's complaint alleged her husband, Joseph, who had died of lung cancer, "to his detriment relied on advertisements doctors considered its cigarettes healthful and that its cigarettes were harmless to the respiratory system." She sought to recover damages for pain and suffering and death of her husband.
3. The document which follows, a decision handed down by the U.S. Court of Appeals, First Circuit, on May 24, 1956, overturned an earlier decision by the U.S. District Court for Massachusetts which dismissed the earlier, rewritten complaint.
4. We have no further information regarding the outcome, except from historic accounts of tobacco litigation which indicate the industry to date has never settled a lung cancer tort case.
FEDERAL REPORTER, 2d SERIES, Volume 234
Page 170
Eva COOPER, Administratrix, Plaintiff, Appellant,
V.
R. J. REYNOLDS TOBACCO COMPANY, Defendant, Appellee,.
No. 6074.
United States Court of Appeals
First Circuit.
May 24, 1956.
Action by administratrix of estate of decedent to recover damages for pain and suffering and death of decedent who was alleged to have died from lung cancer caused by smoking certain brand of defendant's cigarettes. The United States District Court for the District of Massachusetts, Charles Edward Wyzanski, Jr., J., entered a judgment dismissing plaintiff's substitute complaint, and the plaintiff appealed. The Court of Appeals, Hartigan, Circuit Judge, held that one of the counts in the complaint clearly set forth a cause of action in deceit with reasonable conciseness.
Judgment vacated and cause remanded.
Woodbury, Circuit Judge, dissented.
Marvin A. Stern, Boston, Mass., Samuel Stern, Boston, Mass., on the brief, for appellant.
John L. Hall, Boston, Mass., Stuart C. Rand, Brinley Hall, Rhodes G. Lockwood, and Choate, Hall & Stewart, Boston, Mass., on the brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from a judgment entered November 10, 1955, in the United States District Court for the District of Massachusetts dismissing plaintiff's substitute complaint with costs to the defendant.
In this action the plaintiff, Eva Cooper, administratrix of the estate of her late husband, Joseph Cooper, sought damages for his pain, suffering and death. Cooper was alleged to have died from lung cancer caused by smoking a certain brand of the defendant's cigarettes. The action originated in the Superior Court of the Commonwealth of Massachusetts. The declaration at that time contained three counts. Subsequently a substitute declaration was filed likewise containing three counts.
The defendant petitioned to remove the action on the ground of diversity of citizenship, and on September 13,1954, filed an answer to the substitute declaration in the district court. At the hearing of the objections to plaintiff's interrogatories on November 18, 1954, the court below indicated dissatisfaction with the substitute declaration, which had already been answered, and gave plaintiff sixty days in which to amend. The court said
"Under those circumstances, I do not think I should now have to rule or even consider argument with reference to interrogatories. I may, however, suggest to you it is very desirable in your amendment to the complaint you speak much more specifically than you have in your original complaint. If you have, for example, and I use it only by way of example, two theories, one based on deceit and the other based on negligence, I think that the complaint ought to be so framed as to make it very clear what representation you say is the basis of the action of deceit, and if you are claiming negligence in another count, I think it ought to be very clear what you say is the duty, the breach of which gives rise to the cause of action.
"Because, so far as I am concerned, I shall encourage a motion to dismiss. I have no intention whatsoever of trying this case on the facts unless there is a cause of action validly pleaded."
Subsequently the court commented: "What I want to know is what it is that the defendant asserted which was false." On January 17, 1955 plaintiff filed a motion to amend the substitute declaration by adding four new counts while retaining the three original counts to which an answer had been made. Defendant moved on February 16, 1955, to dismiss the complaint as amended or to strike the amendment and to dismiss the complaint. This motion was heard on May 24, 1955, at which time the court indicated increasing dissatisfaction with the pleadings. The court said:
"I will strike Count VII, and I will now give you thirty days in which to file one substitute complaint, not a series of amendments to prior pleadings here, in which substitute complaint you may set forth, if you see fit a cause of action for deceit and a cause of action for negligence; such allegations in general to correspond with what I have suggested here. If you are unable to do it clearly and concisely, in such form that I feel I can adequately understand the pleadings for purposes of making rulings at the trial and for the purpose of charging the jury, I shall, without giving you any further opportunity to amend, dismiss the case on the general ground that you have in a most aggravating manner failed to comply with the Rules of Civil Procedure, which require a simple and concise statement of your complaint."
On June 21, 1955, plaintiff filed a substitute complaint setting forth ten counts in all. Defendant moved on June 30, 1955, "to dismiss the action because of the plaintiff's persistent and flagrant disregard of the requirements of Rule 8 of the Federal Rules of Civil Procedure [28 U.S.C.A.] and because of the plaintiff's manifest failure to comply with the court's instructions regarding the complaint." The motion was heard on October 31, 1955, plaintiff's attorney failing to make an appearance. The court ruled as follows:
"Pursuant to the motion filed by the defendant, I dismiss the plaintiff's complaint on the following grounds, each of which is to be considered separately as well as cumulatively:--
"(1) The complaint fails to comply with Rule 8 of the Federal Rules of Civil Procedure.
"(2) The complaint is so drafted that it could not satisfactorily be used by a judge for the purpose of making rulings during the course of a trial.
"(3) The complaint is drafted in such a prejudicial manner as to make it improper for submission to a jury, as is the practice in connection with pleadings in this district.
"(4) The plaintiff failed to comply with the specific directions given by the Court on May 24, 1955.
"(5) The plaintiff has had at least three previous opportunities to file an appropriate complaint and, on May 24, 1955, I made it plain that no further opportunities would be given after this last one afforded on May 24. Costs to go to the defendant."
1. "Count V
"The plaintiff says
"(a) That she is the duly appointed Administratrix of the Estate of her lute husband, Joseph Cooper.
"(b) That the defendant, R. J. Reynolds Tobacco Company is a corporation organized under the laws of New Jersey, having an usual place of business in Boston, Massachusetts,
"(c) That on or about December 15, 1951 and for about two years thereafter, the defendant advertised in newspapers, substantially as follows:
"20.000 doctors say that 'Camel' Cigarettes are healthful
"That the defendant thereby represented to the deceased, Joseph Cooper, and to the public at large, that its 'Camel' cigarettes were wholesome, fit for use and unlikely to cause any harm or disease whatever, and by television on or about December 15, 1951 and daily thereafter advertised substantially as follows:
"'Camel' cigarettes are harmless to the respiratory system,
"That the defendant thereby represented to the deceased, Joseph Cooper, and to the public at large, that its 'Camel' cigarettes were wholesome, fit for use and unlikely to cause any harm or disease whatever, and on radio, on or about December 15, 1951 and duly thereafter, advertised substantially as follows:
"'Camel' cigarettes are harmless to the respiratory system.
"That the defendant thereby represented to the deceased, Joseph Cooper, and to the public at large, that its 'Camel' cigarettes were wholesome, fit for use and unlikely to cause any harm or disease whatever, all to the effect that the cigarettes manufactured by it were wholesome and fit for use, not only by the deceased, Joseph Cooper, precipitately, but by the public at large.
"(d) That the defendant thereby represented to the deceased, Joseph Cooper, and to the public at large, that its 'Camel' cigarettes were wholesome, fit for use and unlikely to cause any harm or disease whatever,
"(e) That said representation whenever made, as heretofore stated was untrue and known to he untrue by the defendant at the times made.
"(f) That the defendant intended that the said Joseph Cooper and other members of the public should rely thereon and purchase said 'Camel' cigarettes.
"(g) That said Joseph Cooper did rely thereon and did purchase on many occasions, 'Camel' cigarettes and DO others.
"(h) That said Joseph Cooper was thereby deceived, defrauded and persuaded to use 'Camel' cigarettes and to suffer,, by reason thereof, a cancer of the lung to develop, which caused him great pain, suffering and damage, as alleged in his writ and the plaintiff preys for judgment."
Without pausing to consider plaintiff's contention that the pleadings in this case must be adjudicated in accordance with Massachusetts law, we turn directly to plaintiff's contention that the substitute declaration, amended declaration, and/or the substitute complaint satisfied the requirements of the relevant rules of the Federal Rules of Civil Procedure and in particular Rule 8 thereof.
It is our view of this case that if any single count of the two declarations or the substitute complaint meets the requirements of Rule 8, then the dismissal of the action would constitute an abuse of judicial discretion. We believe that it is each individual count which should be tested for simplicity and brevity under the requirements of Rule 8-- not the entire complaint as an indiscriminate whole. In other words the mere incorporation of additional counts should not of itself be regarded as necessarily tending to defeat the requirements of the Rule. It is entirely conceivable, of course, that a situation might arise wherein such a great number of variations upon the same basic claim might be introduced into a complaint so that the mere necessity of reading the various counts to determine their individual merit might constitute an oppressive burden upon the court. We believe there is no such case here.
Although Count VI of the substitute complaint appears to contain certain elements of mild redundancy and a few brief references to evidentiary matters, we are of the opinion that it would be improper to hold that this count violates Rule 8, which requires in (f) that "all pleadings shall be so construed as to do substantial justice." See Keene Lumber Co. v. Leventhal, 1 Cir., 1948, 165 F. 2d 815. Accordingly we believe that the granting of the motion to dismiss cannot be justified by any reference to Rule 8, which at most, in our view, could only justify the court in striking those particular counts which proved offensive to the Rule.
The court gives as its second reason for dismissal of the action that "the complaint is so drafted that it could not satisfactorily be used by a judge for the purpose of making rulings during the course of a trial." Whereas this statement is doubtless true of the complaint taken as a whole, we believe it has no valid application to Count V.
The third reason for dismissal of the action was that "the complaint is drafted in such a prejudicial manner as to make it improper for submission to a jury * * *." We find nothing prejudicial in Count V.
For its fourth reason the court asserts that "the plaintiff failed to comply with the specific directions given by the Court on May 24, 1955." In our view of this case, the plaintiff has made at least a partial compliance as evidenced by Count V. Failure to comply with respect to other counts would justify the granting of a motion to strike those particular counts, but would not be a valid reason for denying plaintiff the benefit of those counts which successfully met the court's requirements.
We believe in Count V the plaintiff has clearly, correctly, and with reasonable conciseness set forth a cause of action in deceit. As to the other counts we express no opinion.
The judgment of the district court is vacated and the case is remanded for further proceedings not inconsistent with this opinion.
MAGRUDER, Chief Judge (concurring).
I concur in the opinion and judgment of the court.
It appears from the transcript that on May 24, 1955, the district court had a hearing on the sufficiency of the complaint as it then stood, including Count V, which at that time was entirely different from the rewritten Count V in the substitute complaint filed June 21, 1955. The old Count V merely alleged that the defendant had manufactured and offered for sale a brand of cigarettes containing "poisonous, deleterious, diseased, contaminated, filthy, putrid and decomposing substances which were injurious to the health and unfit for use or consumption by the general public," with the allegations that plaintiff's intestate smoked said cigarettes and was thereby caused to suffer an illness which subjected him to great expense for medicines and hospitalization, etc. In the colloquy between the court and counsel for the plaintiff at the hearing on May 24, 1955, the court pressed counsel for an interpretation of the theory on which Count V, as it then stood, was based. Counsel responded that under Count V the defendant manufacturer would be liable even if the manufacturer did not know that there was a deleterious product in the cigarette, and even if the manufacturer had no reason to know that there was such a deleterious product in the cigarette, if there was in fact a deleterious product therein, unknown to the manufacturer and undiscoverable by him. In a memorandum filed by the district judge at the conclusion of this hearing he stated: "I shall allow any amended or a substitute complaint which clearly and concisely states a cause of action in deceit and/or a cause of action in negligence framed upon any theory explicitly set forth in either any Massachusetts case or in the Restatement of the Law of Torts. In particular, an action in deceit may be alleged on the basis either that the defendant knew the matter to be otherwise than as represented, or knew that it had no adequate basis for its statement." It seems to me that the plaintiff, in the rewritten Count V of the substitute complaint filed June 21, 1955, complied in substance with this direction of the court. Count V as thus rewritten set forth that the defendant in newspaper advertising and television broadcasts had made the express representation that its "Camel" cigarettes were harmless to the respiratory system; that such representation was in fact untrue "and known to be untrue by the defendant at the times made"; that the defendant intended plaintiff's intestate and other members of the public to rely on such representation; that plaintiff's intestate did rely on said representation and was deceived thereby, being persuaded to purchase and use such cigarettes, by reason whereof a cancer of the lung developed which caused him great pain, suffering and damage, for which the plaintiff prayed judgment. I think this rewritten Count V sets forth plainly all the elements of a conventional action of deceit, in compliance with Rule 8(a) of the Federal Rules of Civil Procedure. And cf. Huntress v. Biodgett, 1910, 206 Mass. 318, 324, 92 N.E. 427.
In revised Count V of the substitute complaint, the plaintiff as administratrix was suing under the Massachusetts survival statute to enforce the cause of action accruing to her intestate during his lifetime for conscious pain and suffering and for pecuniary damages. Count VIII of the substitute complaint was just the same so far as the allegations of fraud were concerned but was brought under the Massachusetts Death Act to recover for the ensuing wrongful death of the intestate. I think that what the opinion of this court says about Count V applies with equal force to Count VIII.
I may also observe that the type of harm here alleged is not an intangible pecuniary loss caused to the plaintiff by acting in reliance on a misstatement; but rather the complaint charges tangible bodily injuries to the intestate. Therefore it may be that under the Massachusetts law the plaintiff is not limited by the conventional requirements of an action of deceit. See Prosser on Torts (2d Ed. 1955) p. 144 and § 86. In Massachusetts the doctrine of MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382,111 N.E. 1050, L.R.A.1916F, 696, has been accepted, "hereunder a manufacturer who puts out in commerce an article which he knows, or ought to know, is likely to cause tangible harm to the person or property of another, may be liable, on a theory of negligence, for resulting bodily injuries to a remote user of the product, though there is no privily of contract between the plaintiff and the defendant. Carter v. Yardley & Co., Ltd., 1946, 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559. And cf. Sylvania Electric Products, Inc., v. Barker, 1 Cir., 1955, 228 F.2d 842, certiorari denied 1956, 350 U.S. 988, 76 S.Ct. 475.
WOODBURY, Circuit Judge (dissenting).
The question here as I see it is not whether somewhere buried in the verbiage of the amended complaint there can be unearthed a statement of a cause of action. In my view the underlying question instead is whether the plaintiff's "pleading," which I understand to be her complaint, as finally amended, embodies a "short and plain statement of the claim showing that the pleader is entitled to relief" as required by Rule 8(a) (2), F.R. C.P. This Rule states a basic and certainly a salutary principle of pleading. The court below gave plaintiff's counsel fair warning of its intention to invoke the Rule, and with commendable patience it gave plaintiff's counsel ample opportunity to conform his pleading to its requirement. Nevertheless, counsel for the plaintiff, instead of simplifying his complaint, flouted the District Court's directions and piled Pelion upon Ossa by adding successive counts, eventually to the number of ten. This, in a simple tort case like the present, impresses me as in itself a violation of the Rule. That is to say, I do not interpret the Rule as requiring the District Court to subject the complaint to minute and painstaking scrutiny to see if somewhere lurking in its prolixity there may be found a statement of a claim entitling the plaintiff to relief. The Rule, as I read it, requires the plaintiff to state her claim with brevity and clarity; it does not require the court to edit it for her. Furthermore, even if the counts be considered separately, in no one of them can I discover the "short and plain statement" of a cause of action that the Rule requires. I think the District Court was abundantly justified in dismissing the plaintiff's complaint and that in the interest of clarity and conciseness in pleading its action ought to be affirmed
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FEDERAL SUPPLEMENT, 2d SERIES, Volume 158, Page 22
Eva COOPER
v.
R. J. REYNOLDS TOBACCO CO.
Civ. A. No. 54-500.
United States District Court
D. Massachusetts.
Dec. 26, 1957.
Action by widow for suffering and death of her husband due to lung cancer allegedly caused by his reliance upon defendant's representations that defendant's cigarettes were healthful and were harmless to the respiratory system. On plaintiff's motion to default the defendant for failure to answer her interrogatories and on defendant's motion for summary judgment, the District Court, Wyzanski, J., held that evidence was insufficient to establish that defendant made the representations with which it was charged.
Defendant's motion granted and plaintiff's motion denied.
Samuel Stern, Boston, Mass., for plaintiff.
John L. Hall, Claude R. Branch, Brinley M. Hall, Rhodes G. Lockwood, Choate, Hall & Stewart, Boston, Mass., for defendant.
WYZANSKI, District Judge.
This case now comes before the Court on defendant's motion of November 21, 1957 for summary judgment and plaintiff's motion of November 22, 1957 to default defendant for failure to answer plaintiff's interrogatories filed October 7, 1957.
Three and a half years ago plaintiff began in the Massachusetts Superior Court an action against defendant, which it removed to this Court. The declaration, originally filed in the state court, sought damages for the suffering and death of plaintiff's late husband due to lung cancer alleged to have been caused by defendant. It seems that the original claims, although stated in different ways, were based exclusively on the theory of allegedly false representations of defendant.
January 17, 1955 plaintiff amended the complaint to get forth additional claims apparently based on defendant's alleged negligence. It was not transparent just what duty it was claimed defendant had toward plaintiff, nor was it transparent just what breach of that duty was claimed in the negligence counts.
This Court was troubled by the ambiguity of this amended complaint. In every litigation clarity and simplicity of statement are desiderata. But here there is special need for these qualities. First, this case involves the most grievous losses sustained by plaintiff. Second, this case involves factual issues of a type not previously tried in this District: that is, there never has been a determination of the basis of liability, if any, of a tobacco manufacturer for lung cancer suffered by a cigarette smoker. Third, clarity in stating the issues in a case of first impression is particularly necessary so that counsel may put proper questions to witnesses, so that the court may make proper rulings during the trial, and so that the court may charge adequately on the relevant legal propositions. Fourth, the public interest in this case requires safeguards to insure that the jury will be rationally led to its verdict, and not overwhelmed by the prejudice so likely to surround this controversy.
Having in mind these considerations, this Court on May 24, 1955 directed plaintiff to file a simpler complaint. This Court stated that the substitute complaint could set forth a cause of action for negligence as well as for deceit. The transcript of the colloquy makes it clear that this Court had in mind that plaintiff might wish to assert a claim founded on the liability of a manufacturer for making an article which he knew or ought to know was harmful to consumers. Of course, the Court also recognized that, for want of proof, for unwillingness to leave herself open to a possible defense of assumption of risk, or for some other reason, plaintiff might not want to assert such a theory.
In purported compliance with the Court's order of May 24, 1965, plaintiff on June 21, 1955 filed a substitute complaint in ten counts. So far as this Court could discern in 1955, this pleading at best referred to claims founded on defendant's alleged willful misrepresentations, defendant's alleged negligent representations, and defendant's alleged breach of warranty. This Court could not find any suggestion of a claim founded on defendant's alleged duty as a "manufacturer who puts out in commerce an article which he knows, or ought to know, is likely to cause tangible harm to the person or property of another" [See Magruder, C. J. in Cooper v. R. J. Reynolds Tobacco Co., 1 Cir., 234 F.2d 170, 175].
Believing that even this substitute complaint, dated June 21, 1955, did not meet the standards of Fed.Rules Civ. Proc. Rule 8, 28 U.S.C.A., this Court on November 10, 1955 dismissed the pleading and entered judgment for defendant. The Court of Appeals reversed. See its opinions filed May 24, 1956, Cooper v. R. J. Reynolds Tobacco Co., 1 Cir., 234 F.2d 170. That Court held that the substitute complaint stated at least an action for deceit. It left other parts of the complaint for further determination by this Court.
When the case was remanded here, defendant moved to strike all parts of the substitute complaint except Counts V and VIII which are the deceit counts specifically adverted to by the Court of Appeals. Examining the substitute complaint afresh and with the guidance of the opinions of the Court of Appeals, this Court concluded that the motion was well founded. All the other counts are either redundant or are founded on an alleged breach of warranty. There is no count premised on the manufacturer's liability in tort for putting out in commerce articles which it knew or should have known were dangerous to the person; that is, there is no invocation of the doctrine of Carter v. Yardley & Co., 319 Mass. 92, 64 N.E. 2d 693, 164 A.L.R. 659. Insofar as the complaint presents some claim other than claims for deceit and negligent misrepresentation, it sounds in contract, and offers a theory not recognized under Massachusetts law. Under the local law a person not in privily with a manufacturer cannot recover from it in an action sounding in contract and claiming breach of warranty. This being the legal situation, and this Court, being still mindful of the special need for clarity in this litigation, on November 20, 1956 struck from the complaint every part except Counts V and VIII.
Counts V and VIII of the substitute complaint refer to damages respectively for suffering and for death. However, each - presents the same theory of the cause of these different damages. The full text of Count V is set forth in 234 F.2d 170, 173. Its gist, like that of Count VIII, is that Cooper's lung cancer was caused by his reliance Upon defendant's two representations that "20,000 doctors say that 'Camel' cigarettes are healthful" and "'Camel' cigarettes are harmless to the respiratory system".
It is thus transparent that for plaintiff to succeed it must show that defendant made at least one of those representations and that Mr. Cooper relied upon it.
Confident that there is no such evidence, defendant on November 21, 1957 moved for summary judgment. It attached to the motion affidavits of the chairman of its board of directors and the president of its advertising agency that defendant made no such representations. But this is not all on which defendant relies. First, plaintiff has offered no counter-affidavits. Second, defendant has offered to allow plaintiff's counsel full access to its advertising files at its home office, but plaintiff's counsel has not chosen to take advantage of this opportunity. Third, defendant has explored plaintiff's knowledge by filing interrogatories on May 7, 1957 and July 12, 1957. Plaintiff filed answers June 13, 1957 and August 15, 1957. On September 12, 1957 the Court warned that these answers were inadequate, and noted the risk that if plaintiff had no better evidence than she had indicated she might lose the case on a motion for summary judgment. After this warning, plaintiff on November 1, 1957 filed further answers. These make it plain that the plaintiff's evidence consists of defendant's representations that "more doctors smoke Camels than any other cigarette," and that Camels will "agree with your throat". [Note that nothing is said of the lungs or the respiratory system.] These are not the representations alleged in the substitute complaint. They would invite quite a different line of inquiry of witnesses; they would invoke quite a different set of rulings on the law, and they would seem to suggest kinds of damages different from lung cancer.
But plaintiff contends that her attempt to get evidence supporting her side of the case has been blocked by defendant's refusal to answer some of plaintiff's interrogatories filed October 7, 1967. Plaintiff makes this contention not only to defeat defendant's motion for summary judgment but also to support her motion to default defendant. In both aspects the contention is unsound. In her interrogatories of October 7, 1967 plaintiff asked defendant to disclose all advertisements in which it made the specific representations set forth in the complaint, and also all other advertisements in which defendant made certain other and different representations. Defendant answered that there were no advertisements in which it made the specific representations; but it declined to answer interrogatories involving the other advertisements. The defendant was within its rights in so declining. The only representations of defendant which are relevant are those set forth in the complaint,--they are the only representations which plaintiff claims that Mr. Cooper heard, or saw, or relied upon.
There being no evidence that defendant made the representations with which it is charged, and there being uncontradicted evidence from the defendant that no such representations were made, the defendant's motion of November 21, 1957 for summary judgment is granted, and plaintiff's motion of November 22, 1957 to default defendant is denied.
158 F.Supp.--2 1/2
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FEDERAL REPORTER, 2d Series, Volume
Page 464
Eva COOPER, Adrninistratrix, Plaintiff,
Appellant,
v.
R. J. REYNOLDS TOBACCO COMPANY,
Defendant, Appellee.
No. 5333.
United States Court of Appeals
First Circuit.
June 12, 1958.
Action, removed from state court, for death of plaintiff's decedent allegedly due to the smoking of defendant tobacco company's cigarettes. The United States District Court for the District of Massachusetts, Charles Edward Wyzanski, J., 158 F.Supp. 22, granted summary judgment for defendant, and plaintiff appealed. The Court of Appeals held that where plaintiff alleged that her decedent had relied to his detriment on defendant's advertisements that doctors considered its cigarettes healthful and that its cigarettes were harmless to the respiratory system, but did not produce the advertisements, and defendant's uncontroverted affidavits denied the existence of any such advertising, defendant was properly granted a summary judgment.
Affirmed.
Lester S. Cramer, Boston, Mass., with whom Samuel Stern, Boston, Mass., was on brief, for appellant.
Claude R. Branch, Boston, Mass., with whom John L. Hall, Rhodes G. Lockwood and Choate, Hall & Stewart, Boston, Mass., were on brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
PER CURIAM.
This action was originally commenced in the Superior Court for Suffolk County, Massachusetts, on June 7, 1954. The plaintiff, as administratrix of the estate of her deceased husband, Joseph Cooper, sought recovery of damages from R. J. Reynolds Tobacco Company (1) under the Massachusetts Survival Statute, to enforce an alleged cause of action accruing to her intestate during his lifetime for conscious pain and suffering and pecuniary damages as the result of his contraction of lung cancer from smoking a certain brand of defendant's cigarettes, and (2) under the Massachusetts Death Act, G.L. e. 229, § 1 et seq., to recover for the ensuing wrongful death of the intestate.
25G F.2d-30
Upon petition by the defendant, the action was removed to the United States District Court for the District of Massachusetts. There followed extensive proceedings in the district court, which need not now be stated in detail. The district judge, having been dissatisfied with the prolixity of the allegations in the complaint, gave leave to the plaintiff "to file one substitute complaint, not a series of amendments to prior pleadings here, in which substitute complaint you may set forth, if you see fit, a cause of action for deceit and a cause of action for negligence". In compliance with this leave, plaintiff filed a substitute complaint setting forth ten counts in all, on June 21, 1955. Defendant moved to dismiss the substitute complaint because of the plaintiff's disregard of the requirements of Rule 8 of the Federal Rules of Civil Procedure, 28 U.S.C.A., "and because of the plaintiff's manifest failure to comply with the Court's instructions regarding the complaint." This motion the district court granted, and it entered judgment on November 10, 1955, dismissing the plaintiff's substitute complaint.
On appeal, a majority of this court were of opinion that Counts V and VIII of the substitute complaint set forth with reasonable conciseness, and in compliance with Rule 8, conventional causes of action in deceit, based upon alleged fraudulent representations contained in newspaper advertisements and radio and television broadcasts. We accordingly vacated the judgment of the district court and remanded the case to that court for further proceedings (1 Cir., 234 F.2d 170); though in all candor we must say that when we thus remanded the ease for trial, we had no lively expectation that the plaintiff would ever be able to substantiate the causes of action for deceit set forth in Counts V and VIII.
In the course of the opinion of this court we stated as follows:
"The court gives as its second reason for dismissal of the action that the complaint is so drafted that it could not satisfactorily be used by a judge for the purpose of making rulings during the course of a trial.' Whereas this statement is doubtless true of the complaint taken as a whole, we believe it has no valid application to Count V." [234 F.2d 174.]
When the case got back to the district court, that court entertained a motion by the defendant to strike all the counts of the substitute complaint except Counts V and VIII, which the court of appeals had approved. At a hearing on November 20, 1956, the district court granted this motion to strike, apparently with the acquiescence of plaintiff's counsel in the view that, as a result of the mandate of the court of appeals, only Counts V and VIII remained in the complaint. So far as appears, the further proceedings in the district court were based upon the assumption on all sides that the complaint before the court consisted solely of the allegations in Counts V and VIII.
We perceive no reversible error in the action of the district court in granting the defendant's motion to strike from the complaint all the counts except V and VIII.
Subsequently the defendant filed certain interrogatories with reference to allegations in Counts V and VIII that Joseph Cooper had relied upon representations in certain newspaper advertisements and television and radio broadcasts to the effect that "20,000 doctors say that 'Camel' cigarettes are healthful" and that such cigarettes "are harmless to the respiratory system". The interrogatories requested the plaintiff to state, as to each such representation upon which Joseph Cooper relied, the name and date of the newspaper publication and the name and date and identification of the television and radio programs. In response to these interrogatories, the plaintiff answered that the earliest newspaper advertisement upon which Cooper relied was published in the Boston Globe on or about March 12, 1951, and repeated in advertisements thereafter, to the effect that a nationwide survey indicated that "More Doctors Smoke CAMELS than any other cigarette." As to the representations in the television and radio programs, plaintiff replied that she intended to rely upon representations in the programs on or about March 12, 1951, April 7, 1952, May 19, 1952, July 14, 1952, and October 6, 1952, to the general effect that Camel cigarettes are mild and agree with the throat.
On November 21, 1957, defendant filed a motion for summary judgment accompanied by an affidavit by the chairman of the board of directors of the defendant company and by an affidavit by the president of the defendant's advertising agency. The latter affidavit read in part: "No copy for advertisement of any kind for Camel Cigarettes was furnished for publication by any newspaper or other publication or by radio or television during said period [19511953] containing the words '20,000 doctors say that "Camel" Cigarettes are healthful' or '"Camel" Cigarettes are harmless to the respiratory system', or containing other words with the same meaning." No opposing affidavits were filed by the plaintiff.
It is apparent from the uncontradicted affidavits, and from the plaintiff's answers to defendant's interrogatories, that there was no genuine issue of fact properly to be submitted to a jury, and therefore that the trial judge committed no error in entering a summary judgment for the defendant as permitted by Rule 56, F.R.C.P. 168 F.Supp. 22. This is entirely apart from the fact that our credulity would indeed be strained by an assumption that a fatal case of lung cancer could have developed in such a short period after the alleged smoking by Cooper of Camel cigarettes in reliance upon representations by the defendant in the various forms of advertising.
The district court's judgment dismissing the action pursuant to defendant's motion for summary judgment was entered on December 26, 1957. Thereafter, on January 7, 1958, when there was no complaint before the court to be amended, plaintiff filed a motion to amend her substitute complaint. We think it clear that the district court had no power at that late stage to grant the motion, see United States v. Newbury Mfg. Co., 1 Cir., 1941, 123 F.2d 453, 454, though the court did presumably still have power under Rule 60, F.R.C.P., to vacate its judgment of dismissal on any of the grounds available in Rule 60(b). But if it be assumed that the district court had power in its discretion to allow the further amendment of the complaint as urged in the plaintiff's motion of January 7, 1958, still we would be obliged to hold that the court committed no abuse of discretion in denying the motion. In that connection the court said:
"I deny the motion to amend the substitute complaint--on the ground that judgment has already entered, and on the ground that this case has been so long in this Court and so much advice has been given to the plaintiff, both by the Court of Appeals and by this Court, which she chose to disregard, that it would be most unfair now to reopen the matter."
A judgment will be entered affirming the judgment of the District Court.
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