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Cook v. Suburban Mobility Authroity For Regional Transportation3/25/2003
UNPUBLISHED
Defendants appeal as of right from a judgment in favor of plaintiffs for $2,534,630 in this personal injury case. We affirm.
Defendants first argue that the trial court erred in refusing defendants' request to impeach plaintiff, Augustine Cook (plaintiff), with the complaint and to admit the complaint as substantive evidence. We agree that the court erred, but conclude that the error was harmless.
Plaintiffs' complaint alleged that "Mrs. Cook was driving her automobile on Gratiot Road near its intersection with Meldrum in the City of Detroit. . ." that defendant "Halmon was driving a Smart Bus in the same vicinity which was located behind Ms. Cook's automobile" and that "Ms. Cook slowed her vehicle in order to make a right hand turn when it was struck in the rear by Halmon and the Smart Bus." At trial, plaintiff asserted that the accident occurred at Gratiot and Beufait. Beufait and Meldrum are approximately 350 feet apart. Defendants maintained that the accident occurred at Meldrum. The location was of consequence because of the divergent accounts of what happened.
The trial court denied defendants' request to impeach with and admit the complaint, stating that Cook "should have had a chance to review or adopt it or something like that." Generally, " party should be allowed "free rein" to compare the pleadings with the testimony presented at trial. Vachon v Todorovich, 356 Mich 182, 187; 97 NW2d 122 (1959); Boggerty v Wilson, 160 Mich App 514, 527; 408 NW2d 809 (1987). Such a rule discourages deceptive pleading and "its observance affords a time-tried and altogether valuable means of getting at the truth where facts are disputed." Vachon, supra at 187-188. However, this rule is applicable only to statements of fact in a pleading, not general allegations pleaded to meet the requirements of a valid claim, or to inconsistent assertions in alternative counts. Larion v City of Detroit, 149 Mich App 402, 407; 386 NW2d 199 (1986).
Here, the complaint does not involve alternative pleading or multiple defendant theories. Rather, plaintiffs' theory of recovery was based on one location of the accident, and this location was incorporated into each count of the complaint. Therefore, the trial court abused its discretion in denying defendants' use of plaintiffs' complaint to impeach Cook or as an admission by plaintiffs that the accident occurred on Gratiot "near its intersection with Meldrum."
However, error requiring reversal may not be predicated on an evidentiary ruling unless a substantial right was affected. MRE 103(a); Miller v Hensley, 244 Mich App 528, 531; 624 NW2d 582 (2001). Here, the error was harmless because the jury was otherwise informed that Cook had initially believed the accident occurred at Gratiot and Meldrum Street. Cook freely admitted in court that she initially believed the accident occurred at Meldrum Street. Defendants were permitted to compare Cook's earlier beliefs to her trial testimony as to the location of the accident. There was evidence presented to support both sides' positions on the location of the accident. In light of plaintiff's testimony at trial regarding her initial belief regarding the location, it strains credulity to conclude that the jury would have decided differently had it only been aware of the complaint. As to defendants' arguments regarding the significance of a judicial admission, the complaint only placed the accident on Gratiot "near its intersection with Meldrum." Beufait is near Meldrum. Cook's admissions at trial that she initially believed that the accident happened at Meldrum were stronger than the allegations of the complaint. Further, there was evidence that the bus driver wa
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