Martin v. Miqueu

SPENCE, J.

Plaintiff sought damages for personal injuries sustained when an automobile, driven by defendant Miqueu-and owned by defendant Atlas Heating and Ventilating Company, collided with an automobile driven by plaintiff. Upon a trial by jury plaintiff recovered judgment against said defendants in the sum of $5,000, from which judgment said defendants appeal.

The complaint alleged that on December 1, 1938, plaintiff was driving her automobile in a westerly direction on Excelsior Avenue near the intersection of Spruce Street in the city of Oakland and that defendant Miqueu so negligently drove an automobile in an easterly direction along said Excelsior Avenue as to cause it to violently collide with plaintiff’s automobile thereby causing plaintiff various injuries. Said complaint further alleged that the defendant company was the owner of said automobile and that defendant Miqueu was driving it with the consent of the defendant company and within the scope of his employment as an employee of said company. The joint answer of defendants denied the allegations relating to negligence, injuries, damage, and scope of employment. It admitted that the defendant company owned the automobile and that defendant Miqueu was driving said automobile with the consent of the defendant company.

After the jury was impaneled and before the opening statement, counsel for defendants asked “leave to file in the record defendant’s admission of liability on behalf of the defendant Miqueu in a fair and reasonable sum to be determined by the Court or jury’’. He further stated that the “same writ

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ten stipulation admits liability” on behalf of the defendant company “subject to the limitations imposed by section 402 of the Vehicle Code”, and that he at that time offered “to broaden the latter part of that written stipulation . . . and waive any question on the issue of agency and make an unqualified admission of liability” on behalf of the defendant company without any limitation such as that imposed by section 402 of the Vehicle Code. He ended his statement as follows: “If those stipulations are not accepted by my adversaries then each and every one of them is withdrawn.”

There is confusion in the record as to whether counsel for defendants was making an unqualified judicial admission or was merely making what he termed “my offer to stipulate” which was to be withdrawn if not accepted. He states in his brief that the written stipulation had been filed before he made the above statement. Counsel for plaintiff stated on the trial that they knew of nothing which required them to stipulate, and we find no acceptance of the stipulation in the record. Counsel for defendants requested the court “to limit the issues in accordance with my offer to stipulate”. After some discussion, in which the situation was not clarified and in which counsel for defendants said, “ It is an offer, it is not in evidence, it is simply filed, ’ ’ the trial court denied defendants’ request to limit the issues. Counsel for defendants then introduced in evidence the document theretofore filed entitled “Stipulation as to Defendants’ Liability”. Thereafter counsel for defendants objected to the portions of the opening statement relating to the circumstances surrounding the happening of the accident and also to the portions of the testimony relating to such circumstances. Said objections were overruled and counsel for plaintiff proceeded to present the plaintiff’s case.