I dissent. The reversal is based essentially on the holding that it was prejudicial error for the trial court to instruct the jury that the admissions or declarations against interest assertedly made by the bus driver Perkins are “not binding in any way upon the defendant Pacific Greyhound *588Lines and is [are] only to be considered by you in connection with establishing any responsibility on the part of the defendant Perkins.” This instruction in slightly varying language was repeated several times during the trial. When the subject was first mentioned one of plaintiffs’ counsel agreed with the ruling. Later the matter was discussed again and the court stated to counsel for plaintiffs, “Now if you can show me an authority to the contrary, then I can instruct the jury to the contrary.” No authority, it seems, was presented and the court in its formal instructions at the close of the trial said, “Any evidence here about any statements, if any, made by the driver, Mr. Perkins, to anyone after the accident, was not admitted against, and is in no way related to or binding on the Pacific Greyhound Lines.” Such instruction was erroneous not only for the reasons elucidated by Mr. Justice Carter but also because, regardless of the doctrine of respondeat superior, the defendant Pacific Greyhound Lines was liable (at least to the extent of $5,000) under the provisions of section 402 of the Vehicle Code if the driver, Perkins, was liable. Nevertheless, for the reasons hereinafter stated, I am not persuaded that the giving of such instruction, under the circumstances shown, was prejudicial to plaintiffs.
The court also instructed the jury that “It is admitted by the written answer of the defendants . . . that . . . Perkins was acting within the course and scope of his employment as a motor stage driver for said corporation. In view of that admission . . . you are instructed that if you find any negligence on the part of the defendant, Perkins . . . such negligence is also the negligence of said corporation, Pacific Greyhound Lines.”
In respect to the defendant Perkins the trial court made it very clear that the evidence as to his statements was admissible against him. It told the jury that “any admissions made, or statements made by the driver of the automobile ... of the bus, to Mrs. Olsen is not binding upon the Pacific Greyhound Lines but is binding upon himself ” ; that the statement made at the scene of the accident “would be binding on Mr. Perkins” ; that “this conversation is not binding in any way upon the defendant Pacific Greyhound Lines and is only to be considered by you in connection with establishing any responsibility on the part of the defendant Perkins.” (Italics added.) *589It is argüed in the majority opinion that the action of the trial court in giving to the jury only two forms of verdict— one for the plaintiffs against both defendants and the other for both defendants against the plaintiffs—contributed to making the erroneous instructions prejudicial; that separate forms as to the defendants Perkins and Pacific Greyhound Lines should have been furnished. But it is obvious that no verdict could properly have been returned as against the corporate defendant unless one was also found against Perkins and that if any verdict was rendered against Perkins there must also have been one against the defendant corporation. It is undisputed in the record that Perkins was an authorized driver for the Pacific Greyhound Lines, the owner of the bus. Hence, even if the jury believed that the evidence against Perkins was sufficient, but was so only by reason of his extrajudicial statements, and concluded that plaintiffs were not barred from recovery by reason of contributory negligence of the decedent, they were bound, under the provisions of section 402 of the Vehicle Code, to return a verdict against the Pacific Greyhound Lines as well as against Perkins.
The statements assertedly made by Perkins were received in evidence. They were considered by the jury. But the verdict was returned in favor of the defendants. The evidence shows that plaintiffs’ decedent made a left turn directly into the path of the oncoming bus. It tends strongly, if not overwhelmingly, to establish contributory negligence. Section 4% of article VI of the Constitution directs that “No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence . . ., unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” In this case, after an examination of the entire cause, I am not of the opinion that there has been a miscarriage of justice. It seems to me more probable that the jury concluded that the decedent was guilty of contributory negligence than that they found in favor of both defendants solely because they were erroneously told that the asserted statements of Perkins were binding on him but were not “related in any way” to, or binding on, the corporate *590defendant. Accordingly, it is my opinion that the judgment should be affirmed.
Edmonds, J., concurred.
Respondents’ petition for a rehearing was denied July 19, 1945. Edmonds, J., and Sehauer, J., voted for a rehearing.