Vaughn v. Michelin Tire Corp.

FLANIGAN, Judge,

dissenting.

I respectfully dissent.

I agree with the portion of the principal opinion which rejects plaintiffs’ appeal. I also agree with the principal opinion’s treatment of Michelin’s points concerning plaintiffs’ Exhibit 88 and plaintiffs’ closing argument. I confine my dissent to those portions of the principal opinion which deal with the “stipulation.”

“A stipulation is an agreement between counsel with respect to business before a court_” Pierson v. Allen, 409 S.W.2d 127, 130[3] (Mo.1966). Throughout plaintiffs’ brief the colloquy between counsel is referred to as a judicial admission of Michelin. A stipulation, however, is not merely an admission by one side, it is an agreement by both sides.

“In order that a party may avail himself of the benefit of a stipulation, he must show a strict compliance therewith, and a stipulation will not be enforced in favor of one who has failed to comply with the conditions under which it was made. Also, a stipulation will not be enforced if it is contradictory and confusing and stands in the way of a true determination of the rights of the parties, or where it is subject to different constructions and there is a disagreement as to what was intended to be included therein, ...”

83 C.J.S. Stipulations § 31, p. 85.

The “pretrial conference,” during the course of which the stipulation was made, took place on the morning of the first day *564of the trial, a few minutes before the opening statements were made. The colloquy embodying the stipulation is set forth fully in the principal opinion. The content of the stipulation lies in the following portions.

“MR. STRONG: If they’re through with mine, I need — do need one stipulation here for Paul’s.... I just want to be sure that we all understand that that new tire is the same size, construction, design, and that it’s a duplicate of this tire that is in this lawsuit.
Is that right, Paul?
MR. BRADSHAW: Yes, it is.
******
MR. STRONG: ... We want to use it in opening statement, whether Paul uses it or not. It’s an exhibit that will be used at the trial, and we want to use it. It’s here and the statement I made about the stipulation is correct, is it not, Paul?
MR. BRADSHAW: About what stipulation?
MR. STRONG: That it is an exact duplicate of the make and model of our tire?
MR. BRADSHAW: Yes.”

It was plaintiffs’ counsel who was the source of the terminology of “the stipulation.” It was plaintiffs’ counsel who labeled the colloquy a “stipulation.” It was plaintiffs’ counsel who wanted “to be sure that we all understand.”

The stipulation was that “that new tire [Exhibit C] is the same size, construction, design, and that it’s a duplicate of [the accident tire],... [Exhibit C] is an exact duplicate of the make and model of [the accident tire].”

The true facts are:

1. Exhibit C is a Michelin 12.00 R20 XZY tire.

2. The outer working belt and the protective belt of Exhibit C were crisscrossed.

3. The “accident tire” is a Michelin 12.-00 R20 XZY tire.

4. The outer working belt and the protective belt of the accident tire were parallel.

5. Michelin uses alternative methods to manufacture Michelin 12.00 R20 XZY tires — one method is to crisscross the outer working belt with the protective belt — the other method is to make those two belts parallel.

Plaintiffs’ counsel, on direct examination of his expert witness George Edwards, proved facts 1, 2, 3, and 4. Referring to fact 4, Edwards testified: “The accident tire is defective in that it has an inverted belt on the outside.” On the basis of the stipulation, plaintiffs’ counsel succeeded in obtaining rulings from the trial court which prevented Michelin from proving fact 5.

The accident tire was not “a duplicate” of Exhibit C, nor was it an “exact duplicate” of Exhibit C. That is true because of fact 2 and fact 4, and yet plaintiffs’ counsel proved those facts. The stipulation was an agreement and plaintiffs’ counsel, having departed from the stipulation,1 was in no position to insist upon Michelin’s compliance with it. Proof of fact 5 would have weakened considerably plaintiffs’ theory which was, in effect, that the accident tire was defective because of fact 4.

In view of facts 1 and 3, Exhibit C and the accident tire are the same “make and model.” Plaintiffs’ counsel, however, proved that they were not “duplicates” or “exact duplicates” of each other. Such proof was inconsistent with the stipulation and Michelin should have been permitted to counter that proof by showing fact 5. Unless the stipulation bound both parties, it bound neither. “What is sauce for the goose ...”

I do not agree that Michelin was not prejudiced by being denied the opportunity to prove fact 5. Proof that other tires were manufactured both ways is not proof that Michelin 12.00 R20 XZY tires were manufactured both ways.

*565In my opinion the trial court erred to Michelin’s prejudice in refusing to permit Michelin to prove fact 5 and Michelin is entitled to a new trial.

. Note the following language in the principal opinion: "It may be that the plaintiffs' proof was such as to release Michelin from the stipulation. Certainly the effect of plaintiffs' proof of a manufacturing defect ran contrary to their assertion that exhibit C and the accident tire were duplicates.”