(dissenting).
I must confess that, considered as a statement of what the majority believes the law ought to be, the opinion is an excellent and almost convincing piece of argumentation, and, if I agreed with what I regard as their quasi-legislative view, I should be greatly tempted to associate myself with their masterpiece.
Admonished, however, by the great ones,1 whose memories I revere and whose precepts I cherish, against yielding to such siren voices, I firmly stand my ground on the law as it is. So standing, while I agree with some of what is said in the opinion, I dissent both from the result and from much that is said in the approach to it.
In general agreement with what is said in Secs. I and II of the opinion, my disagreement begins with the statement in the first sentence of Sec. Ill:
“The trial judge assumed that the evidence was inadmissible for all purposes.”
In so stating, the opinion assumed in its support what, with deference, the record does not support, indeed refutes.
Realizing that, saying no more, I expose myself to the same charge of assuming, I hasten to acquit myself by saying that I need only point to footnote one of the majority opinion, where the statement of the trial judge dictated into the record is set out to, establish that what and all that the court said was in response to, and was a ruling on, the attempt to get Gossett’s action on the traffic charge into evidence as an admission against the interest of the defendant as indeed it would have been if a formal plea of guilty, as that is understood under the Texas statutes and cases,2 had been entered by him. My disagreement continues with the citation, as authority for the decision in this case, of our case of Johnson v. Empire Machinery Co., 256 F.2d 479, holding that a plea of guilty to a traffic charge entered by the driver of the car would not be admissible against the defendant, his employer. The only Texas case cited in support, Liner v. United States, 16 S.W.2d 519, was not a traffic case, and the very much later decision, Fisher v. Leach, note 2, supra expressly holds that where a formal plea of guilty is entered by the driver, this is admissible against the owner. Further, the Texas case of Sherwood v. Murray, 233 S.W.2d 879, cited in support of the holding in the Johnson case, that, though not receivable as an admission, because the plea was not formally entered, evidence as to the drivers having paid a fine could be used for impeachment, with deference does not so hold. On the contrary, though the case was not one of the payment of a fine but of the forfeiture of a bond, the court, after discussing the question of admissibility of the evidence of a conviction, stated, “However, we have found no authority holding evidence of such conviction admissible for the purpose of impeaching the witness”. My disagreement with the majority opinion on this score culminates with the statement of the court on page 731 of 263 F.2d: “The fact * * * that Gossett’s signed statement given to a clerk does not meet *733the statutory requirements needed to support a valid judgment has nothing to do with its admissibility for impeachment purposes. The Texas Court recognized the force of this distinction in Mooneyhan v. Benedict”. With deference, it did not do this.
As shown in the majority opinion, appellants, on rehearing, contended vigorously that evidence of the payment of the fine for speeding “should have been admitted as an admission against interest, and this without regard to the validity of the court proceeding.” No contention was made that the evidence was admissible for impeachment, and the court made no such ruling and gave no intimation that it was or would have been.
It is my view, based on Texas authorities, including the Mooneyhan case, 284 S.W.2d 741, which does not, as asserted by the majority, support the rule for which they contend but the contrary, that Texas, having taken its place with the minority of the states which give effect, as an admission against interest, to a formal plea entered in a traffic case by a defendant or his driver, must be regarded as accepting the view of those states that, when it is a formal plea, an admission of the owner of the car or his agent is an admission against interest and as rejecting altogether the offer of, or inquiry about, a defective plea because calculated, if permitted in evidence, to have the effect and weight of an admission, though in law and in fact it is not one. In short, while I can see how a formal plea of guilty in a traffic case can be given the effect of an admission generally accorded to a formal plea in a criminal case, I agree fully with those who argue as Griffis does in the Insurance Journal article cited in the majority opinion, that to invest, the normal and usual practice of settling out of court a summons to a traffic court, with the consequences of its being used against the person so settling it in case a damage suit is filed, is to attribute to the action consequences which it does not in fact or in law have.
To show the attitude of the Supreme Court of Texas in this whole matter of using traffic tickets and payment of traffic fines to influence a decision in a damage suit, I cite and quote from Con-dra Funeral Home v. Bollin, 314 S.W.2d 277, where the court reversed a judgment on a verdict because of the misconduct of counsel in persisting in inquiring whether a traffic ticket was given to the defendant by a traffic officer, the court at page 282 saying:
“Presumptively, at least, traffic tickets are only given for violation of penal ordinances or statutes and not for the purpose of establishing fault in civil litigation. If it had been established that tickets were given to both or neither of the parties to the collision, it would still have been the duty of the jury to answer separately each issue from a preponderance of the evidence.”
Finally, if the majority is right in holding that if the plaintiff had made the objection it would have been good, I disagree and vigorously dissent from the ruling which puts the district judge in error for a purported ruling which he did not make on a point which was not presented to him by the plaintiff for a ruling.
I dissent from it because it runs counter to the rule and the practice under the uniform course of decision, that one who makes an offer of evidence which when made generally and without limitation is inadmissible is required, if it is admissible for a limited purpose, to state that purpose. If, which does not seem likely since he said nothing about it on the trial, plaintiff was offering it for the limited purpose of impeachment, he cannot claim error if the judge, in the absence of his stating such purpose, sustains the objection.
Viewing a case from the ivory tower of an appellate tribunal and reversing a judgment on a verdict merely to afford *734the losing party, who has failed to make a proper record, another trial and another chance to do so, in my opinion, has no place in a jury trial in the federal court where the district judge and the jury bear the heat and burden of the day and the verdict of a jury, whether for defendant or for plaintiff, may not be nullified where no proper predicate for a claim of error is laid, unless, which is clearly not the case here, the aberration from good trial practices has been so egregious as to amount to a denial of justice.
I respectfully dissent.
. Said Justice Roberts of the Supreme Court of Texas many years ago:
“Whoever undertakes to determine a case solely by his own notions of its abstract justice, breaks down the barriers by which rules of justice are erected into a system, and thereby annihilates law.
* * $ * $
“To follow the dictates of justice, when in harmony with the law, must be a pleasure; but to follow the rules of law, in their true spirit, to whatever consequences they may lead is a duty. * * * ” Duncan v. Magette. 25 Tex. 245, at page 253; 51 C.J.S. Justices of the Peace § 1, p. 1, note 1, and 52 C.J.S. Daw p. 1025, notes 36 and 37.