Judge v. Kilts, Docket No. 7581

• Decision Date: 29 October 1970
• Docket Number: Docket No. 7581,No. 3,3
• Citation: 27 Mich.App. 502,183 N.W.2d 868
• Parties: Thomas JUDGE and Citzens Mutual Insurance Company, Subrogee of Thomas Judge, Plaintiffs-Appellees, v. Donald E. KILTS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 868

183 N.W.2d 868

27 Mich.App. 502

Thomas JUDGE and Citzens Mutual Insurance Company, Subrogee of Thomas Judge, Plaintiffs-Appellees, v. Donald E. KILTS, Defendant-Appellant.

Docket No. 7581.

Court of Appeals of Michigan, Division No. 3.

Oct. 29, 1970.

Released for Publication Feb. 26, 1971.

John J. Moskal, Fortino, Plaxton & Moskal, Alma, for defendant appellant.

Lynch, Gallagher, Lynch & Kerr, Mt. Pleasant, for T. Judge.

Cotter, James & O'Connell, Mt. Pleasant, for Citizens Mutual Ins. Co.

Before HOLBROOK, P.J., and BRONSON and MUNRO, ^* JJ.

MUNRO, Judge.

This case concerns an automobile accident which occurred on highway M--20 approximately seven miles west of Mount Pleasant in Isabella county, Michigan, on December 8, 1964, at or about 10:30 a.m. The accident occurred when the appellee ¹ who had entered M--20 from a private driveway approximately a quarter of a mile east of a gasoline station was in the process of making a left turn into the gasoline station. The vehicles driven by the appellee and the appellant were travelling on M--20 in a westerly direction. At the time of impact the appellee's vehicle was partly on the southerly lane of M--20 and partly in the gasoline station driveway; the left front of the appellant's vehicle striking the appellee's vehicle in the middle of the rear end of his vehicle.

Following a jury trial, a judgment was rendered in favor of the appellees. A timely motion for a new trial was denied and appellant filed his claim of appeal, alleging that the trial court erred in two particulars. First, did the trial court commit reversible error in refusing to give defendant's proposed instruction to the jury entitled 'Admissions' and, second, did the trial judge err in instructing the jury in accordance with the statute that a rearend collision is Prima facie proof of negligence?

As to the first issue complained of by the appellant the requested instruction which the trial court did not give provided as follows:

'Any statement of fact set forth in any pleading shall be treated as an admission by the pleader and need not be proved by the opposite party. In this case, both Plaintiffs have set forth in their pleadings that Mr. Judge turned his signal on when he was 25 yards away from the VanZandt Store.

'As far as the Defendant is concerned, that statement can be taken as an admission by the Plaintiffs and the Defendant is not required to prove that particular fact. (GCR 606)'

This requested instruction was predicated upon paragraph 6 of appellees' complaint which in part provided:

'That Plaintiff, Thomas J. Judge, proceeding in the westbound lane of this two-lane road and at a point approximately 200 yards east of South Coldwater Road, Plaintiff, Thomas J. Judge, made a left turn signal intending to drive into VanZandt's Store, located on the south side of M--20 and at a point approximately 175 yards east of South Coldwater Road.'

During the trial the plaintiff's testimony indicated that he had turned the left-turn blinker light on at a distance of approximately 1/8 of a mile or 660 feet before entering the gas station driveway. The defendant rigorously cross-examined the plaintiff as to the alleged difference between his complaint and his testimony and, during his argument, pointed out the differences to the jury. The defendant did not, however, at any time make any objection to the plaintiff's testimony concerning the time or place of signaling when the testimony was given nor was any motion to strike the testimony made. The defendant having made no objection nor having requested that such testimony be stricken did, however, request an instruction as previously referred to, after the completion of proofs and prior to the court's instructions to the jury. The paragraph of the complaint referred to by defendant contained approximate distances and the testimony at the trial given by the plaintiff concerning this matter also were approximate distances. The instruction as requested did not in fact recite the contents of the complaint correctly in that the distances in the complaint were approximate distances. The defendant at no time claimed surprise and made no motion to strike the testimony. The fact that he waited and presented an instruction comes too late since the trial court in this matter did instruct the jury in part 'You will decide what happened and how it happened from the testimony of the witnesses and the evidence presented during the trial.' The jury had before them for consideration that portion of the complaint referred to by the defendant which was read into the record by the defendant was well as the testimony of the witnesses on the stand, including the plaintiff, relating to the distances involved. The rule in Michigan when proof varies from pleading and when the opposite party fails to object is laid down in the case of Hallock v. Income Guaranty Co. (1935), 270 Mich. 448, 454, 259 N.W. 133, 135, where the Supreme Court held, in part:

'Objection on account of variance between pleadings and proofs may not be raised for the first time on appeal. No surprise or prejudice is claimed by defendant. Defendant's attorney himself pointed out the variance to plaintiff during the trial and asked for an explanation, but made no objection. The variance was one that could be cured by amendment and it will now be regarded as amended in accordance with the rule laid down in Scendar v. Winona...