I dissent. The failure of the plaintiff to file an affidavit under Code of Civil Procedure, section 448, admits only that the copy of the parking ticket alleged in the answer is a correct and genuine copy of the one issued to the plaintiff by the defendant. It does not admit its legal effect or that it is a contract. “The cases in which section 448 has been construed are numerous. The result reached may be briefly stated as follows: Where the defendant has pleaded a written instrument in defense (not by way of cross-complaint), and the plaintiff has not served and filed an affidavit denying the instrument and has offered no evidence controverting it on any ground, the instrument is to be deemed admitted and must be taken for what it appears on its face to be. But the plaintiff may controvert the instrument by evidence of fraud, mistake, undue influence, compromise, payment, statute of limitations, estoppel, and the like defenses, under section 462 of the Code of Civil Procedure.” Moore v. Copp (1897), 119 Cal. 429, 432 [51 P. 630]. The plaintiff could not truthfully have made an affidavit that this was not a copy of the parking ticket he received, but he could and did dispute defendant’s interpretation of the ticket.
As to the merits, although National Auto. & Cas. Co. v. System Auto Parks, Inc. (1949) our Civil Appeal 7286, is squarely in point and calls for a reversal, it should be disapproved. It involves the validity of a provision on a parking ticket limiting to six months the time within which an action for damages could be brought. This court reversed a judgment for the plaintiff. In doing so, this court held as a matter of law that the plaintiff was bound to read the printing on *883the parking ticket and was bound by it whether he read it or not. This is not the law. It omits any consideration of the question “Would a prudent man have read the ticket?” “ An offeree is not bound by the unknown terms of a document by his acceptance of the same without objection, where the document delivered to him purports to be, and would by a reasonable man be understood to be, merely a check or voucher, and not a contract, as in the case of a baggage check or receipt, as explained in Carriers § 877, or an ordinary railroad ticket, as explained in Carriers §§ 616, 617, and other receipts or papers of a similar character.” 17 C.J.S. 377.
In Merrill v. Pacific Transfer Co. (1901), 131 Cal. 582 [63 P. 915], judgment for the plaintiff was reversed because the court refused to instruct the jury that if a prudent man could and would have read the limitation of liability on a baggage check, the plaintiff was bound thereby whether he read it or not.
Williston, in volume 1 of Contracts, page 274, (1936 rev. ed.) states: “The sole question seems to be whether the facts present a case where the person receiving the paper should as a reasonable man understand that it contained the terms of the contract which he must read at his peril and regard as part of the proposed agreement. The precise facts of each case are important in reaching a conclusion.”
The opinion in National Auto. etc. v. System Auto Parks, Inc., supra, our Civil A 7286, relies on U Drive & Tour Ltd. etc. v. System Auto Parks, Ltd. (1937), 28 Cal.App.2d Supp. 782 [71 P.2d 354], This latter case is easily distinguishable. It deals not with a provision on a parking ticket limiting the time within which a damage action may be brought, but with a notice on the ticket that the parking lot closed at midnight. This appeared not only on the ticket but also on a sign on the parking lot. Every customer knows there is a closing time for auto parks. Furthermore, the judgment was for the defendant and was affirmed. At page 787, the court stated: “The trial court impliedly found that the circumstances disclosed afforded him a reasonable opportunity to read the printed matter thereon and accordingly that he became bound by it as a part of the bailment contract.” To the contrary, in National Auto. & Cas. Co. v. System Auto Parks, Inc., supra, the trial court impliedly found that the plaintiff did not have a reasonable opportunity to read the ticket and that a reasonable person in the same circumstances would not have read it. This court reversed that judgment without mentioning or *884recognizing that what a reasonable person would do in the circumstances was a question of fact. In the case at bar, the trial court made the same implied findings favorable to respondent. We should not say as a matter of law that a reasonable person who receives a parking ticket will read the printing on the back of it to learn within what time he may sue for damages. We should recognize the fact that a trier of the facts could hold that a prudent man may consider a parking ticket merely as a means of identifying his car when he claims it.
Sandler v. Commonwealth (1940), 307 Mass. 470 [30 N.E.2d 389, 131 A.L.R. 1170], supports this view at page 1174 [131 A.L.R.] : “It could be found to be a reasonable assumption by the plaintiff that the stub that was given him was a receipt for his automobile or a means of identifying him when he should return to get his automobile rather than a contract freeing an apparent bailee from all responsibility.”
I would affirm the judgment.
THE COURT.The petition of respondent for a rehearing after judgment of this court on appeal in the above entitled case having been filed and having been duly considered,
Said petition is hereby denied.
Memo
By failing to file affidavit, there was no issue of fact (that there was no contract). Oswald v. Northrop Aircraft, Inc. (1944), 62 Cal.App.2d 824, pp. 827, 828 [145 P.2d 635],