sidewalk * * * resulting in his being struck by the said defendant's vehicle.' This was a little different from plaintiff's testimony at the trial in which he stated that he was struck while standing on the sidewalk. To show the inconsistency in statements defendant attempted to cross-examine plaintiff in reference to the averment in the complaint and he offered the averment into the record in defendant's part of the case. The trial judge overruled plaintiff's objections and permitted the averment to be used by the defense.
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It may well be that in cases where a complaint has been superseded by a new complaint or where it has been amended as to the contested averment the rule would not apply. However, where, as was the situation in the present case, the complaint was not amended or superseded up to the time of trial, a defendant should be able to and can confront a plaintiff at trial with averments in the complaint which are inconsistent with his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 be denied.