Marocco v. Ford Motor Co.

• Decision Date: 29 April 1970
• Citation: 86 Cal.Rptr. 526,7 Cal.App.3d 84
• Court: California Court of Appeals Court of Appeals
• Parties: Robert O. MAROCCO, Plaintiff and Respondent, v. FORD MOTOR COMPANY, a Corporation, Defendant and Appellant. Civ. 25533.

Page 526

86 Cal.Rptr. 526

7 Cal.App.3d 84

Robert O. MAROCCO, Plaintiff and Respondent, v. FORD MOTOR COMPANY, a Corporation, Defendant and Appellant.

Civ. 25533.

Court of Appeal, First District, Division 1, California.

April 29, 1970.

Hearing Denied June 24, 1970.

DeMeo, DeMeo, Foster & Waner, Santa Rosa, for plaintiff.

Barfield, Barfield & Dryden, San Francisco, for defendant; Cyril Viadro, San Francisco, of counsel.

SIMS, Associate Justice.

Defendant manufacturer has appealed from a judgment awarding the plaintiff damages for injuries to his left arm which he claimed were caused when the transmission selector lever in the unattended car he had been operating slipped from the park to the reverse position. His arm was crushed between the backing car and the centerpost of his garage while he was attempting to stop the vehicle. It has also appealed from an order denying its motion to tax costs. ¹ Plaintiff claimed, and offered evidence to show, that the transmission selector lever mechanism was manufactured from inadequately hard material, which would not properly withstand wear, and that it was assembled with the omission of a part. He sought recovery on the theories of strict liability, implied warranty and negligence.

The appeal from the judgment is predicated solely on the contention that the trial judge committed prejudicial error in allowing the plaintiff to introduce, over objection, evidence of other defects in the model of automobile involved which had no connection with the operation of the transmission selector lever mechanism. The manufacturer also contends that the trial court improperly allowed the plaintiff the costs of his attorney's attendance at depositions in another county. These contentions are examined and it is determined that the court erred in admitting the questioned evidence, but that the error complained of did not result in a miscarriage of justice, and that the trial court properly refused to strike the costs claimed by plaintiff. The judgment and orders must be affirmed.

Ruling on the Evidence

Before the trial of the case the plaintiff gave notice of a request (see Evid.Code, § 453) that the court take judicial notice of the following publication: 'Federal Role in Traffic Safety, hearings before the Subcommittee on Executive Reorganization of the Committee on Government Operations, United States Senate, Eighty-Ninth Congress, Second Session, Equipment Defects or Failures 1960--66, Including Correction Efforts And Recall Campaigns, December 1966, Appendix, Printed for the use of the Committee on Government Operations, U.S. Government Printing Office, Washington: 1967, 76--624.' The defendant filed its objection, and thereafter the plaintiff designated the portions of the public document which he sought to offer into evidence 'for all proper purposes, including but not limited to, the issues of notice to defendants, admissions against interest, and for purposes of impeachment * * *.'

Defendant's objection that the court could not take judicial notice of any part of the records of a Congressional hearing was properly overruled. (Evid.Code, § 452, subd. (c); Love v. Wolf (1964) 226 Cal.App.2d 378, 403, 38 Cal.Rptr. 183; Wilson v. Loew's, Inc. (1956) 142 Cal.App.2d 183, 188, 298 P.2d 152 (cert. dis. (1958) 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519); Witkin, Cal.Evidence (2d ed. 1966) § 167, pp. 153--154.) The defendant does not seriously question that ruling. It relies upon the principle that 'the official character of a document will not make otherwise inadmissible material therein admissible.' (Love v. Wolf, supra, 226 Cal.App.2d at p. 403, 38 Cal.Rptr. at p. 198.)

The portions of the record of the hearing involved in this case consist of (1) a Senatorial request to manufacturers for '* * * a complete listing of all bulletins, notices, and other correspondence to your dealers or owners relating to product or equipment defect or failure since 1960'; (2) a reply from one identified as the president of the defendant manufacturer which in part recites, 'In response to your request, Ford Motor Co. herewith makes available to you a complete report on product service campaigns conducted by the company from 1960 to the present. Compaigns are the means by which we make corrections in cars awaiting shipment, in transit, already in dealer stocks, or in customers' hands. They are made without charge to the customers. ( ) For each campaign we have included the title, a description including corrective action taken, the number of units involved and a report on results'; and, (3) as designed by the plaintiff, reference to 44 of the product service campaigns which set forth various matters in which corrective action had been taken with various makes of automobiles manufactured by the defendant during the model years 1960--1966, inclusive.

The trial court recognized the principle asserted by defendant. It denied the request that judicial notice be taken of the entire report. After considering the portions designated by the plaintiff, the court ruled that it would take judicial notice of the Senatorial request, the president's reply, and from the 44 items, the 10 items which referred to a 1964 Thunderbird, which was the year model and make of the automobile involved. The extracts were thereafter read to the jury.

The president's letter was correctly characterized by the trial judge as follows: '* * * the letter of Mr. Miller acknowledges metallurgical failures in the past. But it's largely, as I think it's reasonable to expect, an exculpatory letter in the sense that he points out--and this is one reason why I think the letter as a whole should, in fairness, go in--points out that this is infinitesimal and that the general safety record and safety program and inspection procedure of the Ford Motor Company is remarkable. And he refers to the fact that the overall picture presents one of the wonders of the mechanical age, or words to this effect, which I am reasonably sure is correct.' ²

Defendant does not directly object to the use of the letter, but it specifically attacks the use of evidence of other defects which are not related to the functioning of the mechanism which allegedly played a part in the accident. These defects, including the number of 1964 Thunderbird vehicles involved with each, as epitomized in plaintiff's designation of items, and with designation of the corrective action taken are as follows:

113--'Pressure cap causing fuel leaks through carburetor.' (Charged the pressure type cap.)

1211--'Wrong hood lock dowel installed at Wixom assembly plant, resulting in the possibility of premature hood pop-up.' (Substituted longer dowel pin.)

2800--'Retractable-type seat belts not installed.' (Substituted deluxe for standard seat belts.)

3058--'Parking brake release when door slammed (Wixom plant).' (New revised parking brake assembly installed.)

166--'Inadequate calibration of low fuel warning relay.' (Revised circuit and installed new relay.)

3100--'Air-conditioning condensation leaks in passenger compartment.' (Added additional sealer.)

5600--'Potential damage to fuel & brake line from drilling. (Wixom plant).' (Inspected and corrected.)

2500--'Incorrect stoplamp switch installed which would have resulted in premature failure of the switches (Wixon plant).' (Inspected and replaced with proper switch.)

30--'Possibility of disengagement of parking brake when transmission selector moved, due to incorrect installation of parking brake release connections.' (Inspected and corrected.)

85858--'Inadequate wiring circuit protection of stoplamp switch.' (Replaced switch and revised wiring.)

Reference to the full text concerning each item fails to reveal how the defect involved could have contributed to the accident. The reference to release of the parking brake is of no consequence because the uncontradicted evidence demonstrates that the car could not have and did not roll, but was propelled backward.

In Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84, the court collated the following rules: "A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.' (Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900, 13 A.L.R.3d 1049, Vandermark v. Ford Motor Co., 61 Cal.2d 256, 260--261, 37 Cal.Rptr. 896, 391 P.2d 168.) Similarly, a retailer engaged in the business of distributing automobiles to the public is strictly liable in tort for personal injuries caused by defects in cars sold by it. (Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 263, 37 Cal.Rptr. 896, 391 P.2d 168.) In the last-cited case, it was recognized that a plaintiff is entitled to establish the existence of the defect and the defendants' responsibility for it by circumstantial evidence. (61 Cal.2d at p. 260, 37 Cal.Rptr. 896, 391 P.2d 168.) No reason appears why the same rule should not apply where the plaintiff is seeking to prove that the defect caused his injuries.' (70 Cal.2d at pp. 583--584, 75 Cal.Rptr. at pp. 655, 451 P.2d at p. 87. See, in addition to the cases cited, Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639, 650, 55 Cal.Rptr. 94.)

The general rules of relevancy have been codified as follows: 'No evidence is admissible except relevant evidence.' (Evid.Code, § 350); 'Except as otherwise provided by statute all relevant evidence is admissible.' (Id., § 351); and "Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Id., § 210. See Witkin, op.cit., §§ 301--304, pp. 205--208.)

The defendant relies upon the principles which generally exclude evidence of another crime or...