Nordstrom v. White Metal Rolling & Stamping Corp.

• Decision Date: 10 April 1969
• Docket Number: No. 39316,39316
• Citation: 453 P.2d 619,75 Wn.2d 629
• Court: Washington Supreme Court
• Parties: Philip J. NORDSTROM, Appellant, v. WHITE METAL ROLLING AND STAMPING CORPORATION and Fuller Paint Stores, Inc., a corporation, Respondents.

Page 629

75 Wn.2d 629

453 P.2d 619

Philip J. NORDSTROM, Appellant, v. WHITE METAL ROLLING AND STAMPING CORPORATION and Fuller Paint Stores, Inc., a corporation, Respondents.

No. 39316.

Supreme Court of Washington, En Banc.

April 10, 1969.

Harry J. Scharnikow, McMullen, Brooke, Knapp & Grenier, Robert E. Brooke, Seattle, for appellant.

Horswill, Keller, Rohrback, Waldo & Moren David Hiscock, Seattle, for respondents.

ROSELLINI, Judge.

The plaintiff was injured when he fell while climbing a ladder which was manufactured by the defendant White Metal Rolling and Stamping Corporation and sold to him by the defendant Fuller Paint Stores, Inc. Contending that the ladder had collapsed under him, he sued these two on the theories, respectively, that the product was negligently designed and manufactured, and that a warranty of fitness had been breached. The jury before which the case was tried found in favor of both defendants.

On appeal, the plaintiff assigns error to the admission of certain evidence. The first assignment is as follows:

The Court erred in admitting, over objection, testimony that the ladder purchased by Appellant and manufactured by White Metal Rolling and Stamping Corporation met and exceeded the safety standards set up by the American Standards Association for Metal Portable Copy of the American Standard Safety over objection, Exhibit 17 which was a Copy for American Standard Safety Code for Portable Metal Ladders.

While error is assigned to the admission of exhibit 17, this exhibit was in fact excluded by the trial court. The plaintiff asserts that the 'admission and later rejection' of this exhibit constitutes incurable error, but he offers no argument in support of the statement that the error was incurable. Our examination of the record, however, reveals that there was considerable testimony about this exhibit and certainly its importance was indelibly implanted in the minds of the jury. We will therefore assume that the error, if any, was incurable.

The evidence which went to the jury was testimony of witnesses for the defendant White Metal Rolling and Stamping Corporation describing generally the composition of the American Standards Association and the purpose of the publication of exhibit 17, and declaring that the standards set forth therein were met and exceeded by the defendant manufacturer. The trial court instructed the jury in regard to this testimony as follows:

Evidence was admitted during the trial concerning the American Standard Safety Code for Portable Metal Ladders. You are instructed that this 'Code' is not a compilation of rules, regulations or laws of any governmental division and that the provisions of the Code do not have the force or effect of law. Noncompliance or compliance with the provisions of this Code is not of itself either negligence or lack of negligence as a matter of law. You may consider the evidence of the Code only in connection with other evidence bearing upon the question of negligence.

No error having been assigned to the giving of this instruction, it is the law of the case.

According to the law, as stated in the instruction, the code published by the American Standards Association was relevant on the question of negligence, although compliance or noncompliance with it was not in itself determinative of that question. The plaintiff nevertheless contends that this relevant evidence was inadmissible because it was hearsay. He says:

The general objection that is made to safety codes being used in cases of this kind is that such codes express opinions and they are not given under oath with any opportunity for cross-examination. They also deal with the controversial and developing subjects in which opinions over the years may change. In this case, the safety code for ladders that was admitted in evidence was over ten years old at the time of this trial.

The answers to such objections and the criticisms of the general rule of exclusion have been stated by many writers ¹ and are summed up by Professor Wigmore in his treatise on Evidence. ² The purpose of the hearsay rule is, basically, to exclude untrustworthy evidence which may prejudice a litigant's cause or defense. It is the inability to cross-examine the author of a publication, when its contents are offered as proof of a fact in issue, which renders the publication objectionable. However, there are many publications which have attributes which, common experience tells us, render them as trustworthy as any evidence given by a witness who has successfully withstood cross-examination.

If a publication is produced by persons or groups having special knowledge regarding the subject under discussion, and having no motive to falsify, but having rather every reason to state the facts as they are known to the author or authors, subjecting them to cross-examination would be a superfluous activity. Furthermore, where a publication is produced by a great number of persons, or where one or more of the authors has died, the publication must either be admitted without putting the authors on the witness stand, or the valuable evidence contained therein must be lost.

Thus, where evidence of the contents of a publication must be admitted if the relevant and material information contained therein is to be made available to the trier of the facts, and the publication is one which reasonable minds would agree is trustworthy, there appears to be no sound reason why such evidence should be excluded. The purpose of the hearsay rule is not offended by the introduction of such evidence.

The trustworthiness of exhibit 17 was established beyond any reasonable cavil. It was published after thorough research by a special committee assigned to study appropriate standards for construction, care and use of ladders, a subcommittee of which did the research on metal ladders. The personnel of the committee represented interested manufacturers, consumers (represented by such organizations as the American Federation of Labor, the Associated General Contractors of America, the American Association of Railroads, and the International Association of Fire Fighters), professional groups (such as the American Society of Mechanical Engineers and the American Society of Safety Engineers), associations of insurance companies, agencies (such as the United States Department of Agriculture, the United States Department of Labor, the Bureau of Standards, and the Department of the Army, Corps of Engineers (Liaison)), and the National Safety Council. A total of 23 organizations was represented. If objectivity was not established by this representation of interested parties, the lack of such objectivity could presumably be demonstrated by the plaintiff. He did not seriously challenge it, however, and the trial court should have had no difficulty in deciding that the code was trustworthy. A motive to falsify could hardly survive in such a diversified group; and the pertinent facts on which to base a code of standards were within the knowledge of the participants. This code was promulgated before the facts giving rise to this litigation occurred; and it was not drawn with a view to favoring the position of a manufacturer in this or any other litigation.

The other factor which Wigmore mentions, that of necessity, is also present. The code is relevant, and it is material to the manufacturer's defense, but those who prepared it are not available to testify. The participants are too many in number and too widely scattered. It would be highly impractical, if not impossible, to gather them together to testify at the trial, and it is doubtful if their testimony would add anything to the trustworthiness which is imported by the circumstances under which it was prepared. It is not suggested that the code offered in evidence was a forgery. Thus the elements of trustworthiness and necessity, which form the basis for any exception to the hearsay rule, are present.

However, the plaintiff says that a code of this type is open to criticism because it represents a mere expression of opinion upon a controversial and developing subject on which opinions may change over the years. The fact that scientific knowledge on a particular subject may not be complete is no reason to exclude evidence of whatever knowledge may be available. Otherwise, expert opinions on scientific matters would never be admissible. And the fact that a witness may not be informed as to the latest developments will affect the weight to be accorded the expert's testimony or the particular publication offered, but it does not render the evidence altogether irrelevant or incompetent. ³

The validity of this approach to the question is illustrated in the circumstances of this case. While the plaintiff points a finger of accusation at all safety codes, as being mere expressions of opinion and not necessarily reflecting current opinion, he he offers no evidence that the code in question does not represent the latest and best thinking on the subject which it covers. He does say that the code was 10 years old at the time of the trial of this case; however, the date of its relevance was the date of manufacture, or at the latest, the date the ladder was placed in the stream of commerce, and that date was prior to December 30, 1962, when the plaintiff purchased the ladder. Thus the code, which was published October 4, 1956, was little more than 6 years old at the time. For aught that is shown by the record, it is still the accepted code, and there is nothing in the evidence to indicate that the code is outmoded (unless the testimony by the plaintiff's expert, that to his 'designer's eye' the two front legs of the ladder in question looked inadequate, could be thus characterized).

Conceding therefore that the code is an expression of opinions of a group of experts, those opinions are relevant on the question of whether the defendant manufacturer properly designed and manufactured the...