
    THOMAS v. GRAY
    1. Judgment — Modification of Judgment — Pleading—Pretrial Conference — Trial.
    Denial of defendants’ motion to amend a judgment, part of whieh was given for permanent injuries, held proper even though plaintiffs’ counsel stated at the pretrial conference that there was no permanent disability, where an allegation of permanent disability was contained in the pleadings and was not expressly waived at the pretrial conference, and defendant did not object at trial to the introduction of evidence concerning permanent disability (GCR 1963, 301.3).
    2. Action — Pretrial Summary — Modification.
    The modification of a pretrial summary to prevent manifest injustice is a matter addressed to the sound discretion of the trial court.
    References for Points in Headnotes
    [1] 46 Am Jur 2d, Judgments §§ 679-684, 708.
    [2] 53 Am Jur, Trial §§ 8, 11.
    Appeal from Alpena, Philip J. Glennie, J.
    Submitted Division 3 May 7, 1969, at Grand Rapids.
    (Docket Nos. 5,855, 5,856.)
    Decided August 27, 1969.
    
      Complaints by Howard A. Thomas, Sr., as guardian of Howard Allen Thomas, Jr., a minor, and for himself against Ted R. Gray and Lois Allison Gray for damages resulting from Howard Allen Thomas, Jr. being struck by defendants’ automobile. Cases consolidated for trial. Judgment for plaintiff. Defendants appeal.
    Affirmed.
    
      Donald K. Gillard, for plaintiffs.
    
      Clare L. Gillett, for defendants.
    Before: J. H. Gillis, P. J., and R. B. Burns and Y. J. Brennan, JJ.
   J. H. Gillis, P. J.

Howard Allen Thomas, Jr., was injured when he was struck by a car driven by defendant Lois Gray. Howard, then five years old, was crossing the parking lot of the Alpena General Hospital in the company of his two older brothers. He was struck as defendant was driving-past an aisle of parked cars.

Howard Thomas, Sr., brought an action on behalf of his son for injuries suffered and in his own name for his expenses. The cause was heard by Alpena County Circuit Judge Philip J. Glennie. The court made awards in the amount of $15,000 for permanent disability, $7,500 for pain and suffering and $3,967.25 as expenses to Howard Thomas, Sr.

Defendants appeal the trial court’s denial of their motions for new trial or for modification of judgment on the ground that the award for permanent injury was error. Defendants also contend that the judgment was against the great weight of the evidence and that there was insufficient evidence to sustain a finding that defendant was guilty of negligence. Defendants rely on the variance of the testimony of the injured boy’s brother at trial with that contained in a deposition taken prior to trial.

The trial court found from the testimony that defendant was negligent in failing to observe plaintiff. The finding was supported by the evidence and after a review of the record we cannot say that it was clearly erroneous. GOB 1963, 517.1; Skuta v. Hribek (1966), 3 Mich App 633.

Pursuant to GOB 1963, 301, the trial court conducted a pretrial conference. At that time, the following inquiry was made:

“The Court: Permanent disability in this case?
“Mr. Ciliard (counsel for plaintiffs): No, there is some disfigurement, but no permanent physical as to—
“The Court: Is this the boy that got injured there in the hospital—
“Mr. Gillard (interposing): Not the hospital, the parking lot. At an age where he mended.”

In the pretrial summary rendered pursuant to GOB 1963, 301.3, the trial court included, as an element of injuries and damages, “serious and permanent, painful and disabling injuries of head, face, jaw, teeth, pelvis, ribs, multiple lacerations and bruises.” Upon objection by defense counsel, the word “permanent” was deleted from the statement of injuries and damages, the conclusion to which was also amended to read, “but no permanent disability.”

Nevertheless, evidence was introduced at trial, without objection, that plaintiff had suffered permanent injuries and disability. As a consequence, the trial court made the following finding:

“The evidence likewise discloses disability in the loss of a tooth, scar on his lip, a strong possibility of future dental difficulties, and a speech defect. He is hound to have expense for dental care in the future. In the event that a speech defect should develop, it might well have a bearing on future income. For permanent disability, I determine the damages to be the sum of $15,000.”

Defendants contend that the issue of permanent disability was removed from consideration at the pretrial conference as evidenced by the amended pretrial summary. They state in their brief:

“At no time thereafter did plaintiff counsel move to reinject this issue into the case, and relying on the elimination of the issue, no physical examination was requested in behalf of defendants.
“In the case at bar, the findings of the Court with regard to permanent disability was [sic] clearly erroneous as there was no issue involving this point.”

Defendants’ point is well taken, but the trial court’s denial of defendants’ motion to modify the judgment was not error. GCR 1963, 301.3 provides:

“No party shall be deprived of the right to present competent proof at the trial in support of any issues raised in the pleadings unless such issues have been expressly waived at the pretrial conference and such waiver is recorded in the said summary of results.” [Emphasis supplied.]

As stated in 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 7, 8:

“The court’s pretrial summary is an important document, which will control the future course of the trial insofar as it contains admissions or limitations of issues to be presented for trial. * * *
“Facts which are noted as admitted in the pretrial summary need not be supported by proof at the trial. Proof will not be accepted on issues eliminated by the pretrial summary, unless the summary has been modified at or before the trial to prevent manifest injustice. However, the pretrial summary will be deemed to have been modified if evidence outside the issues framed by the summary has been admitted without objection during the course of the trial.” [Emphasis supplied.]

The rule stated is in accord with the prevailing practice in the federal system under Fed Rule Civ Proc 16, governing pretrial procedure:

“[T]he pretrial order is ordinarily binding on the parties; if it were not, the pretrial conference would lose much of its effectiveness. The court may, however, modify the order if satisfied that it should do so ‘to prevent manifest injustice.’ Deciding these cases involves more than weighing the possible hardships imposed on the respective parties by allowing or refusing to allow the order to be modified; the court must also balance the need for doing justice on the merits between the parties (in spite of the errors and oversights of their attorneys) against the need for maintaining orderly and efficient procedural arrangements. * * * “It is fair to say that while parties should normally be held to admissions carefully and solemnly made, on the other hand the pretrial order must not be an inexorable decree. Designed to promote litigation on the merits, pretrial must not, of course, be used to thwart its very objective.
“Failure formally to amend the pretrial order is not error where the court admits evidence to the same extent as if the order had been amended.” 3 Moore’s Federal Practice (2d ed), pp 1136, 1138.

We are concerned about protecting defendants’ reliance on the pretrial statement to frame the issues to be tried. This is clearly an intended objective of our pretrial procedure. At the same time, our primary concern is to see to it that justice prevails. There was no objection by defense counsel to the introduction of unrebutted evidence that the child suffered permanent injury. The trial judge concluded that the evidence justified an award therefor.

The modification of a pretrial summary to prevent manifest injustice is a matter addressed to the sound discretion of the trial court. Bednarsh v. Winshall (1965), 374 Mich 667. The denial of defendants’ motion to modify the judgment was not an abuse of discretion. A just finding, framed in the pleadings and supported, without objection, by the evidence, should not be subverted by a procedural infirmity. There being sufficient evidence to sustain an award for permanent disability, the order of the trial court is affirmed. Costs to appellees.

All concurred. 
      
       “Defendant” hereafter refers to defendant Lois Gray; “plaintiff” refers to plaintiff Howard Allen Thomas, Jr.
     