(dissenting).
In voicing my dissent I do not stress the substantive question involved, though there is ample basis for arguing that the majority opinion is wrong in its reasoning and in its conclusion that the allegations of the complaint do not make out a case of agency. A number of well-considered cases have taken a broader and more realistic approach in’ testing the facts for proof, or lack of proof, of agency. Davis v. Merrill, 133 Va. 69, 112 S.E. 628; New Ellerslie Fishing Club v. Stewart, 123 Ky. 8, 93 S.W. 598, 9 L.R.A..N.S., 475; Richberger v. American Express Co., 73 Miss. 161, 18 So. 922, 31 L.R.A. 390, 55 Am.St.Rep. 522. And no local decision points to a different result.
I think the appeal should be decided not on the substantive' question but as a matter of pleading, for it was on the pleadings that the case was decided below and on the pleadings it is brought here for review. Nor should it' be decided on the basis of the rigid rules of common law pleading or upon the reasoning of such cases as Plumer v. Southern Bell Telephone & Telegraph Co., 199 S.E. 353, 355, cited by the majority, where the Georgia Court made'the surprising statement that “* * * the allegations of a petition will, when attacked by appropriate demurrer, be construed most strongly against the pleader.” I thought we had reached too advanced a stage in legal procedure to accept that sort' of guide. I thought there was general acceptance of the rule announced in the federal cases: that the complaint should be liberally construed in favor of the pleader and in a “light most favorable to plaintiff, and with every in-tendment regarded in his favor.” Tahir Erk v. Glenn L. Martin Co., 4 Cir., 116 F.2d 865, 869; Pliner v. Nesvig, D.C., 42 F.Supp. 297; Cohen v. United States, 8 Cir., 129 F.2d 733; Continental Collieries, Inc. v. Shober, 3 Cir., 130 F.2d 631; United States v. Thurston County, D.C., 54 F.Supp. 201; Publicity Building Realty Corporation v. Hannegan; 8 Cir., 139 F.2d 583; Tyler Fixture Corporation v. Dun & Bradstreet, Inc., U.S.D.C.W.D.Mich., 3 F.R.D. 258. It was this rule of construction which prompted Sanborn, Circuit Judge, speaking for the Eighth Circuit, to say:1
“* * * there is no justification for dismissing a complaint for insufficiency of statement, except where it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim.”
Nor have I found any cases under the Federal Rules which hold as the majority holds here, that “the general allegations must be considered as circumscribed by the more specific statements.” I think the case is made out by the allegation of employ*264ment and agency and that as here employed the other matter should properly be regarded as mere surplusage and not as allegations fatal to a recovery. I think there is no doubt that if plaintiff had merely alleged that the driver while in the employ of the defendant and in the course of its business, assaulted the plaintiff, his complaint would have successfully withstood the motion to dismiss; because it would have conformed to thé forms of complaint set out in the Appendix to the Federal Rules, and uniformly followed in thousands of cases. But, according to the majority, because he said more than he needed to, he said too much and pleaded himself out of court. Such a ruling does violence to Federal Rule 8(f) which says: “All pleadings shall be so construed as to do substantial justice.”2 More, it does violence to the spirit and philosophy of the new rules, designed as they are to assure a trial on the merits whenever possible. It forgets that “perfection in pleading is rare” and that “prolixity is a besetting sin of most pleaders.” 3
•That is one of the reasons motions to dismiss have not been as frequently or successfully employed as the old demurrer. It is probably the reason too, for the uniform holding that “no matter how improbable it may be that the plaintiff can establish the allegations of his complaint [he] is, nevertheless, entitled to the opportunity to make the attempt.”4
This plaintiff might.by his evidence have been able to prove a convincing case of agency. He might for example, prove specific authority, or estoppel, or ratification, or other special circumstances, pointing to liability. On the other hand it may be that he would lose his case at the hands of a jury; it may even be that he would, for lack of evidence, not be able to get to the jury. But we cannot, by merely reading his complaint, say that defeat must be his inevitable fate and that the coup de grace was therefore properly administered at the inception of the struggle.
Leimer v. State Mut. Life Assur. Co., 8 Cir., 108 F.2d 302, 306.
New Municipal Court Rule 8(f).
Securities & Exchange Commission v. Timotrust, Inc., 9 Cir., 28 P.Supp. 34.
Louisiana etc., Union, Inc. v. Great Atlantic & Pacific Tea Co., 8 Cir., 131 E.2d 419, and cases there cited.