concurring.
I concur in the principal opinion. However, I believe there is an additional reason Michelin is not entitled to complain the trial court misconstrued the stipulation. In my opinion, the inclusion of the word “design” in the stipulation causes its meaning to be ambiguous. In his opening statement, counsel for the plaintiffs said:
There is a tire in this courtroom. Mr. Bradshaw is going to show it to you in his Opening Statement. And it is a cutaway view of these plies. It’s his tire so he’s going to use it .... And in the tire he’s going to show you, it has been stipulated as a proper tire, duplicate tire of what our tire was supposed to be, what it was supposed to be. (emphasis added)
Counsel then emphasized to the jury the fact the accident tire was not like the exhibit tire, but had a defective belt lay-up in which the cords in the outer two belts ran in the same direction, contributing to the breakdown in adhesions. The remarks of counsel concerning the fact the accident tire was not like the exhibit tire and was not like it was supposed to be were not brief or casual. If contrary to the stipulation, they called for a response. No objection or correction was offered by Michelin. “Where the parties to a stipulation have given a practical construction to it by their acts and conduct, such construction is entitled to great, if not controlling, weight in determining its proper meaning.” 83 C.J.S. Stipulations § 11 (4th Reprint 1975).
The trial court was entitled to construe the stipulation as stated and relied upon by the plaintiffs and adopted by acquiescence by Michelin.