Herbert G. GARMAN and Beverly Garman, Appellants, v. Maurice Knox GRIFFIN, Appellee, 666 F.2d 1156

WOODS, District Judge. This is a diversity case brought by the parents of Ronald Garman, the eleven-year-old decedent, under the Missouri Wrongful Death Act. Ronald was run over and killed on January 12, 1977 by a school bus from which he had alighted in front of his parents’ farm home near Chillicothe, Missouri. They subsequently moved to Michigan and sued the school bus driver, a Missouri resident, on a negligence theory. Shortly before the statute of limitations would have run, plaintiffs amended their complaint and joined Superior Bus Sales, Inc., the alleged seller of the bus, on a strict liability theory.

Paragraph IV of the amended complaint stated that the casualty was the “direct result of the concurring acts and omissions of the defendants.” The fault of Superior was alleged as follows: . . . defendant Superior Bus Sales placed ipto the channels of trade and sold to the Chillicothe School District a bus which was defective in that it was so constructed and its mirrors so positioned that a full and complete view of the area within the path of the bus was not discernible by a person positioned in the driver’s seat. It later developed that plaintiffs had sued the wrong company in their amended complaint and a

summary judgment was granted in favor of Superior. The case against Griffin was tried to a jury on September 5, 1980 and judgment was entered on a jury verdict in favor of the defendant. The case against Griffin was principally grounded on his failure to keep a proper lookout for the child after the latter had left the bus. During the course of the trial, the defendant’s counsel, over plaintiffs’ objection, was permitted to read the above strict liability allegation against the alleged bus seller, who had been previously dismissed from the case.

The plaintiffs were permitted to read the denial of the allegation in the answer. The plaintiffs’ principal contention on appeal is that the admission of this evidence constituted prejudicial error. We agree and reverse for a new trial. The use of trial pleadings as admissions has been a thorny issue in the law of evidence. There are situations in which they are generally admitted.

If the plaintiffs’ complaint alleged that an automobile accident occurred because defendant was driving too fast on an icy road and the proof showed that the accident occurred on the Fourth of July, this type of admission will generally be received in evidence. It is a factual admission by an adverse party in a pleading on which the issue is being tried. Stolte v. Larkin, 110 F.2d 226 (8th Cir. 1940), on which defendant places considerable reliance, is this type of case.

Plaintiff motorcyclist (Larkin) sued a forward automobile driver (Smith) who was proceeding in the same lane and also sued an approaching motorist (Stolte) who, in passing on a hill, entered the motorcycle's lane, collided with it and caused it to strike the forward' vehicle (Smith). The trial proceeded against both defendants. On cross-examination of the plaintiff the attorney for the passing motorist (Stolte) offered in evidence a portion of the complaint reading: “That at the time and place above mentioned the defendant H. W. J.

Smith suddenly and without any signal or warning negligently and carelessly slackened the speed of his automobile and operated the same to a stop or practically so.” Id. at 231, n. 1. The evidence was excluded by the trial court. A verdict was subsequently directed in favor of Smith. The jury returned a verdict against the remaining defendant (Stolte). The court reversed because the testimony was improperly excluded.

Like the example given above of the icy road in July, Stolte involved a pleading admission in the nature of a fact allegation about the conduct of an adversary party who was still a party at the time the evidence was affirmed at trial. The only difference is that the adversary party-defendant whose conduct was the basis of the admission was not the party defendant who offered the evidence. We do not view this as a significant difference.

When factual allegations in the pleadings relate to conduct of the same defendant who is offering the evidence, the evidence is generally admitted, even though the particular pleading has been abandoned or dismissed. Where a party has made a statement in a pleading about his own conduct which is at variance with his position in the matter being litigated, the evidence is generally admitted. There are significant differences between the cases cited, supra and the case we now consider.

Here we are dealing with an admission in a pleading that (1) involves the conduct of a dismissed party not in the lawsuit at the time the evidence was admitted; (2) that does not involve the conduct of the plaintiffs or the plaintiff’s decedent; and (3) that does not involve the conduct of the defendant. We are also dealing with an admission made in a complaint filed at the last opportunity to toll the statute of limitations. The allegation, based on the newborn doctrine of strict liability, was never pursued because plaintiffs were never able to properly identify the seller of the bus.

The clear implication of this record is that the. amended complaint was a tentative move based on desperation and the need to preserve the option of further investigation. Should this type of pleading admission, which could have been and probably was very damaging in the context of the instant case, have been admitted? We think not. One of the leading treatises in the law of evidence is in accord: .. . The modern equivalent of the common law system is the use of inconsistent, alternative, and hypothetical forms of statement of claims and defenses.

It can readily be appreciated that pleadings of this nature are directed primarily to giving notice and lack the essential character of an admission. To allow them to operate as admissions would render their use ineffective and frustrate their underlying purpose. Hence the decisions with seeming unanimity deny them status as judicial admissions, and generally disallow them as evidential admissions. McCormick, Evidence, § 265 at 634 (2d ed. 1972). In situations closely akin to the case under submission, such pleading admissions have been generally excluded. We believe that Continental Insurance Co. of New York v.

Sherman, 439 F.2d 1294 (5th Cir. 1971) states the better view and indeed what is now the majority view. In Continental Insurance there were inconsistencies in the third-party defendant’s cross-claim and answer. In closing argument the defendant’s attorney argued that the allegations of the cross-claim constituted an admission of liability even though the cross-claim had been dismissed.

Holding that the admission of these pleadings was improper, the court said: As a general rule the pleading of a party made in another action, as well as pleadings in the same action which have been superseded by amendment, withdrawn or dismissed, are admissible as admissions of the pleading party to the facts alleged therein, assuming of course that the usual tests of relevancy are met. (Citations omitted.) Strictly applied, however, this rule would place a litigant at his peril in exercising the liberal pleading and joinder provisions of the Federal Rules of Procedure in that inconsistent pleadings under Rule 8(e)(2) could be used, in the proper circumstances, as admissions negating each other and the allegations in third-party complaints and cross-claims seeking recovery over in the event of liability in the principal action could be used in that action as admissions establishing liability.

Thus, as a necessary exception in the general rule, there is ample authority that one of two inconsistent pleas cannot be used as evidence in the trial of the other. Giannone v. United States Steel Corporation, supra, 238 F.2d at 544, n. 4; McCormick on Evidence, § 242, pp. 509-520 (1954); Note, 17 Tex. Law Rev. 191 (1939). It would seem that this principle would also include inconsistent positions taken in pleadings in a complicated joinder situation, involving, as here, the contingent liability of third parties.

Tort law, particularly in the field of product liability, has reached a point where in many cases several theories of liability are advanced — negligence, warranty, strict liability, absolute liability, deceit and nuisance among others. Often these theories involve inconsistent and contradictory allegations in the pleadings. This has been recognized and indeed encouraged by Rule 8(e)(2), Fed. R.Civ.P. A further complicating problem in the unbridled use of pleading admissions is the liberal third-party and joinder practice contemplated by the Federal Rules of Civil Procedure.

The almost universal adoption of statutes permitting contribution among tortfeasors and the widespread use of indemnity provisions in many types of contracts have given additional impetus to third-party practice and joinder. The use of pleading admissions in situations akin to the case under submission seems to us to be contrary to the spirit of the Federal Rules. Furthermore, it simply does not seem quite fair to these plaintiffs. A pleader in the Federal Courts should not have to forego a potential claim rather than run the risk of having such a claim used as an admission.

We have considered the other points urged by plaintiff-appellants and with one exception consider them to be without merit. Defendant’s counsel inquired of defendant why he had quit driving the school bus after the accident. Defendant responded that “it is just like trying to haul a truck load of diamonds. Every one of those kids were precious and I just did not have the heart to go back.” At this point the defendant became emotional. His attorney asked if he needed a drink of water, and he said, “No, I am okay.

I am just sensitive.” Plaintiffs’ counsel argued that the question and the response was a contrived predicate for a display of sympathy engendering emotion on defendant’s part. We do not accept this argument in the face of the ruling by the able and experienced trial judge, and a retrial would not be ordered on the basis of the admission of this evidence. We do, however, seriously question the relevancy of this evidence. How is the fact that defendant had quit driving a bus relevant on the issue of his negligence at the time of the fatal accident?

Defendant-appellee urged that it is relevant because plaintiffs alleged that the death “was attended upon aggravated circumstances.” Surely this must mean his conduct at the time of the accident and not whatever he may have done thereafter. This line of inquiry should be excluded in the retrial of this cause. Reversed and remanded. . However, the author of a note in the Texas Law Review stated that the majority American rule and the English rule are that admissions made by a pleader in one count are not admissible against him on an issue raised by averments in another count.

He quoted from the leading English case as follows: “A plaintiff ... is at liberty to state different claims upon the record, though inconsistent with each other without subjecting himself thereby to having one of such claims set up as an answer to the other. Whatever issues are joined upon any counts or pleas are to be tried by the jury distinctly from each other.” Gould v. Oliver, 2 Man. & G. 208, 234 (C.P.1840).

With reference to this quotation, the author comments as follows: “The quoted passage indicates the reasoning upon which most courts rely in refusing to permit one count to be used as evidence against another.

They first recognize that alternative and inconsistent pleading is necessary for the attainment of justice, because the plaintiff, when he draws his petition, cannot always be sure what he will be able to prove on trial; and having recognized the right to plead inconsistently, the courts feel that it would be contradictory to hold in the next breath that one of the inconsistent counts may be used to defeat the other.

Such a holding would virtually destroy the right to plead in the alternative because no plaintiff could afford to do so if he should have to run the risk of having one of his counts used to defeat the other.” Note, 17 Texas L.Rev. 191, 192 (1939). . Frederic P. Wiedersum Assoc. v. National Home Const., 540 F.2d 62, 65 (2d Cir. 1976). Variation in dates between complaint and plaintiffs proof. Error to exclude relevant portion of complaint. . Wiseman v. Reposa, 463 F.2d 226 (1st Cir. 1972). Variance in dates between original and substituted complaints involving same parties. . Such a case is Burdis v.

Texas & Pacific Ry. Co., 569 F.2d 320 (5th Cir. 1971) where the plaintiff, who was an automobile passenger in a railroad crossing accident, had made allegations in a state court complaint against the driver which indicated plaintiff passenger was contributorily negligent; to the same effect is Glaesman v. Shop-Rite Foods, Inc., 438 F.2d 341 (10th Cir. 1971) where customer sued lessee of parking lot after fall and lessee’s allegations of faulty maintenance against lessor in previous suit against latter were properly admitted. .

In Estate of Spinosa, 621 F.2d 1154 (1st Cir. 1979) the decedent was killed when there was brake failure on an International truck which crashed into a bridge abutment. The administratrix brought a product liability suit against International Harvester. The First Circuit held that the District Judge properly excluded allegations by the administratrix in a state court complaint against the truck owner based on his negligent failure to maintain the truck. The Fifth Circuit rendered a similar holding in Mitchell v. Fruehauf Corp., 568 F.2d 1139 (5th Cir. 1978).

There a pickup truck driver was injured when a passing truck trailer overturned onto his pickup. He sued the trailer manufacturer in strict liability. The Court of Appeals held that the District Judge properly excluded allegations in a prior state court complaint charging the truck-trailer driver with negligence. See also Douglas Equipment v. Mack Trucks, 471 F.2d 222 (7th Cir. 1972). . "A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses.

When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of inconsistency and whether based on legal, equitable, or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11.”