The opinion of the court was delivered by: GRIM
In this diversity case the principal liability issue before the jury was whether plaintiff was struck by defendant's car while he was on the sidewalk or whether he was struck in the street when he walked into the side of defendant's car. The verdict was in favor of the defendant. Plaintiff has filed a motion for a new trial.
The principal contention which has been made in the argument for the new trial is that the trial judge erred in permitting an averment of fact in the complaint to be used against the plaintiff during the trial.
The question is: Can a statement of fact in a federal court complaint be used against the plaintiff in his cross-examination and/or in the defendant's part of the trial to contradict plaintiff's testimony at the trial? Plaintiff contends that the answer must be in the negative because in the federal courts complaints constitute only notice pleading and are not true averments of fact and, besides, the attorneys who alone sign complaints have no authority to bind the clients by averments of fact in the complaints.
The question has been answered in the opinion of Giannone v. United States Steel Corp., 3 Cir., 1956, 238 F.2d 544, 547, in which the court said:
'The question here is to be distinguished from what the writers on evidence call 'judicial admissions' which are admissions in pleadings,
stipulations, etc., and which do not have to be proven in litigation. Wigmore, Evidence, §§ 1058, 2588 et seq. (3d ed.1940); McCormick, Evidence, §§ 239, 242 (1954). However, pleadings which do not amount to judicial admissions -- See Wigmore, supra, § 2589 -- may be used as evidence of factual allegations.'
It may well be that in cases where a complaint has been superseded by a new complaint or where it has been amended as to the contested averment the rule would not apply. However, where, as was the situation in the present case, the complaint was not amended or superseded up to the time of trial, a defendant should be able to and can confront a plaintiff at trial with averments in the complaint which are inconsistent with his testimony at the trial. The trial judge did not err in permitting the defense to make use of the averment in the complaint.
Plaintiff's motion for a new trial will ...