Symons v. Wooden

FINCH, P. J.

The complaint alleges damages sustained in an automobile collision caused by the negligence of the defendants as follows: damage to plaintiffs’ automobile, $573.15; loss of use of the automobile for 16 days, $80, and damage to a tire and tube, $20.85. Verdict and judgment went for the plaintiffs for the total amount demanded and the defendants have appealed.

In his opening statement to the jury counsel for the plaintiffs stated that at a time subsequent to the collision the plaintiffs informed defendant Hanby of the amount of the damage to their automobile and that Hanby replied: “Don’t pay any of the damages, we are carrying insurance, we are fully protected, don’t pay the repair bill, present your bill to the surety company, it will be paid.” Evidence to the same effect was introduced. Defendants made no objection to the opening statement or to the evidence referred to when it was offered. Objection was first made when counsel for the plaintiffs commented on such evidence in his argument to the jury. The court instructed the jury “that you are not concerned with the matter or fact of whether

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the defendants did or did not carry liability insurance, . . . and it is your duty to determine the liability of the defendants in this case independently of and without consideration of, their being insured, or not being insured.” In his argument to the jury counsel for plaintiffs stated that Hanby’s statement was material as an admission against interest. The decisions support this contention.

(Lahti

v.

McMenamin,

204 Cal. 415 [268 Pac.

644]; Dullanty

v.

Smith,

203 Cal. 621 [265 Pac. 814]:

McPhee

v.

Lavin,

183 Cal. 264 [191 Pac. 237].)