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Marsh v. Davidson

May 24, 1973


Appeal from Circuit Court, Multnomah County. David Sandeberg, Judge.

Edwin J. Welsh, Portland, argued the cause for appellant. With him on the brief were Welsh & O'Donnell, Portland.

Thomas L. Sauberli, Portland, argued the cause for respondent. With him on the brief were Vergeer, Samuels, Roehr & Sweek, Portland.

In Banc. Bryson, J. Tongue, J., dissenting. Howell, J., joins in this dissent.


Plaintiff commenced this action to recover damages for personal injuries suffered in an automobile accident. A jury returned a verdict for defendant, and plaintiff appeals.

The accident occurred during the afternoon of March 27, 1971, near the intersection of Fourth and Sheridan Streets in Portland. As it approaches the Fourth Street intersection, Sheridan Street is a four-lane, one-way thoroughfare for east-bound traffic (lanes one through four, north to south). Lanes one and two carry traffic east across Fourth Street to a freeway "on" ramp. Lanes three and four permit right turns only, directing traffic south onto Fourth Street. All the lanes slope slightly downhill. On the day of the accident rain had been falling and the blacktop paving was wet.

Plaintiff was a passenger in a car stopped in lane two. Defendant approached the intersection in lane three at a speed of 15 miles per hour. Desiring to cross Fourth Street and enter the freeway rather than turn south, defendant signaled a lane change, looked to the rear, and turned left into lane two. At that point, defendant observed cars in lanes one, two, and three, and that the light was green for lanes one and two. The car in lane one proceeded but the car ahead of defendant did not move. Defendant applied his brakes but skidded on the wet pavement into the rear of plaintiff's vehicle.

In her complaint, plaintiff alleged that she suffered

damage to the muscles and nerves in her neck, upper back, and right arm. At trial, plaintiff admitted that she had been involved in an automobile accident in Reno, Nevada, in 1965, and that she had been hospitalized and treated with a cervical collar, traction, and a lower back brace. Plaintiff testified that she had suffered no permanent injury in the Nevada accident but could not recall whether she had alleged permanent injuries in the lawsuit. Defendant introduced into evidence the complaint filed in the Nevada lawsuit; the complaint alleged permanent injuries to plaintiff's head, neck, and back, and that she would continue to suffer, physically and mentally, during the remainder of her natural life. The prayer was for $35,000 damages. Plaintiff objected to the introduction of the entire complaint on the ground that only the allegations on injury had relevance to this case. The court overruled this objection. Plaintiff attempted to show that the Nevada claim was settled for $2,500, but the court sustained defendant's objection to this evidence.

Plaintiff also testified that on February 4, 1971, approximately seven weeks before the accident in question occurred, she sprained her right shoulder when she drove her automobile over a road divider, throwing her car into the air.

On November 1, 1971, plaintiff began working as a nurse's aide, and on January 14, 1972, she filed a claim with the State Accident Insurance Fund for workmen's compensation, claiming aggravation of a previous existing condition with muscle spasms in her back and shoulder.

Plaintiff's first assignment of error is based on the court's order admitting into evidence the entire

complaint in plaintiff's 1965 Nevada lawsuit. Plaintiff claims that all non-injury portions of the complaint, including the prayer for $35,000, were irrelevant, collateral, and highly prejudicial because plaintiff readily admitted the allegations of injury in that pleading.

In the Nevada lawsuit both plaintiff and her husband, Charles E. Marsh, were plaintiffs. The complaint was signed only by Mr. Marsh and the Marshes' attorney. Several cases in other jurisdictions have held that a party is not bound by his admissions in a pleading filed in a former action unless the pleading was personally signed or verified. See Annot., 63 ALR2d 412, § 10 (1959). However, the record in this case demonstrates that plaintiff and her husband filed the Nevada action together (permissible under Nevada procedure). If plaintiff did not expressly authorize the admissions in the complaint, she at least acquiesced in them. Such admissions are fully attributable to plaintiff. Union Oil Co. v. Pacific Whaling Co., 240 Or 151, 154, 400 P2d 509 (1965); Hofer v. Smith, 65 Or 145, 148-49, 129 P 761 (1913); 4 Wigmore, Evidence § 1066 (Chadbourn rev 1972). Since plaintiff testified that she had not suffered permanent injuries in the accident in Nevada, contrary allegations in her Nevada complaint were admissible to affect the credibility of plaintiff as a witness and to show that plaintiff's injuries were not the result of the accident with defendant. See Ardueser v. Rahier, 261 Or 521, 495 P2d 724 (1972), and cases cited therein, wherein we held a prior complaint alleging injuries to the same area of the body was admissible.

Whether the court should have admitted the entire pleading, including the prayer for $35,000, is a question which involves several conflicting rules of law. On the one hand, a pleading filed in an earlier

case and offered in a later case as an admission or declaration against interest must allege matters of fact.

"It is the general rule that a statement of fact by a party in his pleading is an admission that the fact exists as stated * * *." Annot., 63 ALR2d 412, 415 (1959).

See also, 4 Wigmore, supra. The prayer is technically not a part of the cause of action and is typically a request or demand for damages or other relief, not an allegation of an operative fact in the case. Andersen v. Turpin, 172 Or 420, 432, 142 P2d 999 (1943); Kerschner v. Smith, 121 Or 469, 473, 236 P 272, 256 P 195, 196-97 (1927). On the other hand, the prayer may be regarded as the equivalent of a factual statement of the relief which the plaintiff claims or the amount of damage which she has sustained. See ORS 16.210 (c); 71 CJS 240, Pleading § 95 (b) (1951). The damage claim describes the plaintiff's own assessment of her injuries in terms of dollars, and would be so understood by anyone reading the pleading as a whole. As a general rule, the introduction of a statement in a pleading as an admission renders admissible all other portions of the pleading which tend to explain or qualify the portion received. 2 Jones on Evidence § 13:55 (Gard ed 1972). See ORS 41.880. Also see Beck v. General Ins. Co., 141 ...

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