Opinion
For Opinion on Rehearing see, 117 Cal.Rptr. 812, 528 P.2d 1148.
For Opinion on Rehearing see, 117 Cal.Rptr. 812.
Opinions on pages 323-350 omitted. [*]
REHEARINGS GRANTED
Wise, Kilpatrick & Clayton, George E. Wise and William D. Easton, Long Beach, for defendant and appellant.
[110 Cal.Rptr. 370][515 P.2d 314] Harney, Ford, Charbonneau & Bambic and David M. Harney, Los Angeles, for plaintiff and respondent.
McCOMB, Justice.
In this case, in which a judgment was entered in favor of plaintiff in an action to recover for personal injuries sustained by him in an accident involving a motor vehicle manufactured by defendant, which accident allegedly occurred because of a defect in the gear box, a hearing was granted by this court after decision by the Court of Appeal, Second Appellate District, Division Two, for the purpose of giving further study to the question whether it was prejudicial error to admit evidence that three years after the accident occurred defendant made certain changes in the design of the gear box used on the model vehicle involved in the accident.
After such study, we have concluded that the opinion of the Court of Appeal, prepared by Mr. Presiding Justice Roth, correctly treats and disposes of the basic issue. Accordingly, the opinion of the Court of Appeal is, with certain changes, adopted as and for the opinion of this court. Such opinion (with appropriate deletions and additions as indicated ) is, as follows:
Brackets together, in this manner [ ], are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than editor's added parallel citations) are, unless otherwise indicated, used to denote insertions or additions by this court. (Argonaut Ins. Co. v. Transport Indem. Co., 6 Cal.3d 496, 500, fn. 1, 99 Cal.Rptr. 617, 492 P.2d 673.)
Multilith opinion, pp. 370, 371.
[Plaintiff] sustained serious injuries on November 8, 1964, when an International Harvester Company Scout vehicle (Scout) in which he was riding as a passenger on Nine Mile Canyon Road near Mohave, California, abruptly plunged 500 feet to the bottom of the canyon, throwing [him] into the canyon, down a slope of 60 to 70 degrees, a distance of 400 feet from the road. On a previous trial a jury was unable to reach a verdict. A retrial on February 9, 1971, resulted in an unanimous verdict of $700,000 for [plaintiff].
International Harvester Company, the sole defendant and manufacturer of the Scout, appeals.
[Plaintiff] has defined the dispositive issue before this court in the following words: 'The primary dispute in the lawsuit was whether or not the die cast aluminum steering gear box on the Scout vehicle failed while the Scout was on the roadway, thus causing the Scout to go out of control and down into the canyon or whether for some other and unknown and unexplained reason the Scout vehicle left the roadway and subsequently, while going down to the bottom of the canyon, impact forces broke the aluminum steering gear box.'
[Defendant] capsulizes the issue in the following way: 'This, then, was the crux of the case. The plaintiff contended that the gear box broke on the road through metal fatigue [ ], and the defendant argued that the gear box broke on impact as the vehicle fell down the mountain [ ].'
Some cases have referred to 'negligent design,' e. g., Brooks v. Allis-Chalmers Mfg. Co. (1958) 163 Cal.App.2d 410, 329 P.2d 575 (per Peek, J.).
[Plaintiff] and three others had driven to Nine Mile Canyon the day before the accident to hunt. The evidence showed also that: the road, 20 feet wide, was dry and without ice; the Scout vehicle had been traveling 10 to 15 miles an hour when it left the roadway; and that Mr. Hine [the owner and driver of the Scout] had traversed Nine Mile Canyon Road on two prior occasions in the Scour vehicle without any difficulty. There was no testimony from either Mr. Hine or [plaintiff] as to the accident itself, nor from their two companions, who, at the time of the accident, were following them on Nine Mile Canyon Road in another vehicle. Mr. Hine and [plaintiff] had developed retrograde amnesia and were unable to recall the circumstances of the accident, and their companions in the following vehicle were out of sight when the Scout car left the road and came upon the scene afterwards.
[110 Cal.Rptr. 371][515 P.2d 315] There was evidence which showed that Mr. Hine [ ] had consumed, along with the others, whiskey both the day before, and on the day of the accident, as well as a can of beer within hours before the accident.
[Plaintiff's] case against [defendant] rests on the malfunction of the gear box. [Defendant's] sole defense was and is that the reason for the accident was either Mr. Hines's negligence (intoxication) or some other, unknown cause and that the gear box was safe and not the proximate cause of the accident.
The accident occurred in 1946 and the action was filed in 1965. Over [defendant's] objection evidence was admitted that [although] in years previous to 1967 the Scout gear box had been constructed of aluminum 380, [i]n 1967 malleable iron was substituted for gear box construction instead of aluminum 380. Predicated upon Evidence Code, section 1151, [defendant] contends that the admission of this evidence was prejudicial error.
'When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.'
In their footnote 3 the majority refer to somewhat equivocal testimony on installation of malleable iron gearboxes in vehicles manufactured by defendant in 1963. I find it significant that in substantially adopting the Court of Appeal opinion the majority omit the following passage: '. . . all the evidence marshalled by [plaintiff] shows the feasibility of malleable iron for the use in question was not in doubt. Thus we are cited to evidence that Post Office Scout vehicles in 1963 were equipped with gear boxes mode of malleable iron and to expert testimony which showed that iron was better than aluminum.' It is undeniable that this was an issue in the case, the factual dispute was submitted to the jury, and the jury found for the plaintiff.
The sound public policy behind the rule set forth in Evidence Code, section 1151, on which the authorities are generally agreed, has been declared in Westbrooks v. Gordon H. Ball, Inc., 248 Cal.App.2d 209, 216, 56 Cal.Rptr. 422; McCormick on Evidence (2d ed.), p. 666. The reason for the exclusion of such evidence is not its lack of probative value but a broad public policy against discouraging, devising and applying new and additional safety measures. When, however, the evidence is independently relevant on an issue other than negligence, it is admissible. (Pierce v. J. C Penney Co., 167 Cal.App.2d 3, 6, 10, 334 P.2d 117; Witkin, Evidence (2d ed.) p. 343.)
[ ] [In order to show that the gear box was defectively designed, plaintiff could properly introduce evidence of the feasibility of changes in the design thereof (including the material of which it was made and the manner in which it was attached to the vehicle) so as to enhance the factor of safety. (Pike v. Frank G. Hough Co., 2 Cal.3d 465, 472, 85 Cal.Rptr. 629.) But, in view of the prohibition contained in section 1151 of the Evidence Code, it was not permissible for plaintiff, in establishing the feasibility of a change in design, to prove that defendant had, some time after the accident, taken the precaution of making the change.
Plaintiff claims that he introduced evidence that in 1963, prior to the time of the accident herein, defendant used malleable iron gear boxes in Scout vehicles manufactured by it for the United States Post Office Department; and he contends that this evidence was admissible to show the feasibility of making the change.
[110 Cal.Rptr. 372][515 P.2d 316] It has been suggested that since defendant introduced evidence that the reason for the change from aluminum 380 to malleable iron was that a new, easier shifting gear had been developed and that the malleable iron gear box was designed to house it, as well as evidence that approximately 200 companies use the type of aluminum in question in the manufacture of gear boxes for all types of vehicles, including school busses, defendant's own evidence tended to counteract any prejudice resulting from the admission of evidence of the change. It is also pointed out that the evidence was overwhelming that malleable iron was a preferable material, as a result of which the jury, even in the absence of the inadmissible evidence regarding the change, would in all likelihood have concluded that malleable iron should have been used in the manufacture of the gear box in question.
The trial court, however, not only admitted testimony from several witnesses to the effect that the change was made and testimony that malleable iron is much stronger than aluminum 380, but it received one of the malleable iron gear boxes in evidence as plaintiff's exhibit 70; and that exhibit was in full view of the jurors for the remainder of the trial (10 court days of trial, not including the time which the jurors spent deliberating). Furthermore, it was used in questioning witnesses and, together with the components of the aluminum Hine gear box and various other aluminum test gear boxes which had been received in evidence, was taken into the jury room for the jurors to examine during their deliberations. Under the circumstances, the malleable iron gear box was a constant reminder to the jurors that defendant had, some time after the accident, probably (although it contended that the change had been made for other reasons) concluded that a malleable iron gear box would be safer than one manufactured from aluminum 380.]
[ ] The trial court also admitted evidence showing that [defendant] had replaced aluminum brake pedals [on its fire trucks] with those made from malleable iron. There was nothing before the court below, and there is nothing before us, which suggests in what way the strength of [ ] brake pedals [was] relevant to the disposition of [this] case. Of course, it cannot be doubted that [defendant] was obliged, in order to prove its case, to show that aluminum was an adequate metal; similarly, [plaintiff] had to show according to [his] theory of the case that aluminum was undesirable as a component metal. Nevertheless, neither [plaintiff's] nor [defendant's] evidentiary requirements and needs excuse the application of section 1151 of the Evidence Code; that is, merely because the reliability of aluminum was at issue [plaintiff] was not free to bolster his case with repeated showings of remedial changes to prove [defendant's] negligence in relying on that metal.
[Plaintiff] called eight expert witnesses who testified in essence that the Scout's gear box had failed through metal fatigue. This showing was contested by three experts called by [defendant] who testified that there was no evidence of fatigue, and that the gear box had broken apart as a consequence of the plunge of the Scout into the canyon. The single issue before the jury was hotly contested. The evidence was closely balanced. Under these circumstances, no more conclusive item of evidence could be found than that which appeared to be [defendant's] admission of fault by making a change from aluminum to malleable iron. The errors committed in the admission of the evidence were therefore prejudicial.
[Plaintiff's complaint is based primarily on the theory that defendant is liable upon strict liability for faulty design in the manufacture of the Scout vehicle here involved, and he contends that section 1151 of the Evidence Code has no application to strict liability cases. In a products liability case in which the plaintiff seeks to recover on the theory that the product was unreasonably dangerous because of faulty design [110 Cal.Rptr. 373] [515 P.2d 317] by the manufacturer, the plaintiff does not have the burden of proving negligence (see Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 64 , 27 Cal.Rptr. 697, 377 P.2d 987); but if he proves that the design of the product was faulty, he has shown that the manufacturer did not exercise the reasonable care required under the particular circumstances. Thus, he would have made a showing of either negligence or culpable conduct on the manufacturer's part and at the same time would have established that the defect existed when the product left the manufacturer's plant. One writer has aptly stated, '[A] court which appears to be taking the radical step of changing from negligence to strict liability for products is really doing nothing more than adopting a rule that selling a dangerously unsafe chattel is negligence within itself.' (Wade, Strict Tort Liability of Manufacturers,19 Sw.L.J. 5, 14.)
Section 398 of the Restatement Second of Torts provides: 'A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.' (Italics added.)
Section 1151 of the Evidence Code, it will be recalled, refers to 'negligence' and, in the alternative, to 'culpable conduct.'
In order to show faulty design of the product, the plaintiff in a products liability case may, as in negligence cases, introduce evidence of the feasibility of a change in the design; but, in view of the language of section 1151 of the Evidence Code, he may not do so by evidence of post-occurrence changes.
In Sutkowski v. Universal Marion Corporation, 5 Ill.App.3d 313, 281 N.E.2d 749, it was held that the rule excluding evidence of post-occurrence changes in negligence cases is not applicable to products liability cases. No reference is made in the opinion, however, to any statutory provision similar to the one here involved.]
In view of our disposition of this case, it is unnecessary to consider [defendant's] remaining contentions.
The judgment is reversed.
BURKE and CLARK, JJ., concur.
WRIGHT, C. J., concurs in the judgment.
MOSK, Justice.
I dissent.
This cause of action arose out of events occurring in 1964. Nine years and two trials later, the majority in reliance upon a thin and dubious rationale reverse a substantial judgment rendered by a trial court after a unanimous jury verdict. Perhaps justice has not been irrevocably denied, but it has certainly been unduly delayed. Now finality continues to be elusive for the further period required by a third trial, and perhaps subsequent appeals.
I would hold no error was committed in admission of the questioned evidence, and in the alternative, even if there was error it was not prejudicial. Consequently the judgment should be affirmed.
Evidence Code section 1151 is designed primarily for negligence cases and in that area it serves the salutary purpose of encouraging repairs to property which had been carelessly allowed to deteriorate. Remedial measures taken after an event are, in the words of the statute, inadmissible to prove negligence or culpable conduct.
While plaintiff has one cause of action sounding in negligence and one on breach of warranty, he bottoms his complaint primarily upon strict liability for faulty design in the manufacture of the motor vehicle in which he was riding as a passenger. Since negligence and culpable conduct are not necessary elements of strict liability (Rest.2d Torts, § 398), Evidence Code section 1151 is inapplicable to this proceeding. In invoking the code section in this strict liability case, the majority are rewriting and extending the statute beyond its rational boundaries.
[515 P.2d 374] [110 Cal.Rptr. 374] Moreover, the majority's interpretation not only violates the language of section 1151, but also contravenes the history and purpose of the provision. According to its draftsmen, section 1151 was intended merely to codify 'well-settled law.' (Law Revision Commission Comment to Evid.Code, § 1151.) The rule excluding evidence of subsequent repairs originally rested on the notion that such repairs were completely irrelevant to the issue of defendant's negligence a the time of the accident. Thus, the first case to adopt this rule in California, Sappenfield v. Main Street etc. Co. (1891) 91 Cal. 48, 62, 27 P. 590, 593, stressed that 'The negligence of the employer, which renders him responsible for the accident, depends upon what he did and knew before the accident, and must be established by facts and circumstances which preceded it, and not by acts done by him after its occurrence.' (See, e. g., Helling v. Schindler (1904) 145 Cal., 303, 312-315, 78 P. 537.)
More recent cases have recognized, however, that subsequent repairs may not always by entirely irrelevant to the issue of negligence, for if they occur closely in time they may well illustrate the feasibility of the improvement at the time of the accident, one of the normal elements in the negligence calculus. (See, e. g., Johnson v. United States (Mont.1958) 163 F.Supp. 388; 2 Wigmore on Evidence, § 283, p. 159, fn. 2.) In the products liability context, of course, even the majority concede that the feasibility of a design improvement is directly relevant in determining a manufacturer's liability. (Ante, pp. 370, 371,) *
Nevertheless, despite the potential relevancy of this evidence, courts have frequently retained the traditional rule in negligence cases as a matter of 'public policy,' reasoning that the exclusion of such evidence may be necessary to avoid deterring individuals from making improvements or repairs after an accident has occurred. Section 1151 of the Evidence Code rests explicitly on this 'public policy' rationale. In explaining the purpose of section 1151, the draftsmen's comment states: 'The admission of evidence of subsequent repairs to prove negligence would substantially discourage persons from making repairs after the occurrence of an accident.' (Emphasis added.) (Law Revision Commission Comment to Evid.Code, § 1151.)
While the provisions of section 1151 may fulfill this anti-deterrent function in the typical negligence action, however, the provision can play no comparable role in the products liability field. Historically, the common law rule codified in section 1151 was developed with reference to the usual negligence action, in which a pedestrian fell on a slippery sidewalk (see, e. g., City of Miami Beach v. Wolfe (Fla.1955) 83 So.2d774) or a guest was injured on unstable stairs (see, e. g., Hadges v. New York Rapid Transit Corp. (1940) 259 A.D. 154 [18 N.Y.S.2d 304]); in such a context, it is realistic to assume that a landowner or potential defendant might be deterred from making repairs if such repairs could be used against him in determining liability for the initial accident.
When the context is transformed from this typical negligence setting to the modern products liability field, however, the 'public policy' assumptions justifying this evidentiary rule are no longer valid. The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuit and the attendant adverse effect upon its public image, simply because evidence of adoption of such improvement may be admitted in an action for recovery on an injury that preceded the improvement. in the products liability area, the exclusionary rule of section 1151 does not affect the primary conduct of the mass producer of goods, but [110 Cal.Rptr. 375] [515 P.2d 319] serves merely as a shield against potential liability. In short, the purpose of section 1151 is not applicable in the products liability area, and hence its exclusionary rule should not be gratuitously extended to that field.
The recent case of Sutkowski v. Universal Marion Corporation (Ill.App.1972) 281 N.E.2d 749, the only other decision in the country to have passed on the issue, directly supports this conclusion. Noting that in the products liability field 'policy considerations are involved which shift the emphasis from the defendant manufacturer's conduct to the character of the product' (italics added) (281 N.E.2d at p. 753), the Sutkowski court held that the Illinois statutory rule excluding evidence of post-occurrence changes in negligence cases did not apply to products liability cases. While this out-of-state case is, of course, not binding upon our court, the majority have given no indication why the reasoning of Sutkowski is not persuasive.
Given the purpose of section 1151, and the difference between negligence and products liability actions noted above, it is not surprising that in drafting the provision the Legislature confined the section to actions where the defendant's 'negligence' or 'culpable conduct' is at issue. Neither the Legislature nor the Law Revision Commission which drafted the section could have been oblivious to the likely evidentiary use of subsequent design changes in strict liability cases. Thus, the limitation of the section to essentially negligence causes of action must be deemed deliberate and significant.
Since, in my opinion, section 1151 does not apply to products liability cases, I pass on to the next inquiry: whether, in the absence of statutory compulsion, there are either precedential cases or sound policy reasons for excluding evidence of subsequent design changes.
There are remarkably few cases on the subject, perhaps because the general law of products liability has been in a process of evolution since Justice Traynor's seminal opinion in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897. Cases on faulty design are particularly rare, despite the fact that this aspect of strict liability has aroused the intellectual curiosity of commentators and legal scholars for many years. 1 In 1956 Harper and James devoted 16 pages of their text to the various problems inherent in faulty design cases (2 Harper & James, The Law of Torts (1956) pp. 1541-1557).
There are several indicia of trends. In Garcia v. Halsett (1970) 3 Cal.App.3d 319, 82 Cal.Rptr. 420, the evidence disclosed that a washing machine without a micro switch to prevent operation with the door open was responsible for the plaintiff's injuries and that had a micro switch been installed on the machine the accident could not have occurred. The court permitted evidence that machines produced by other manufacturers contained such micro switches, and that other machines produced by the defendant contained such apparatus. Under those circumstances whether the equipment should have been installed for safety purposes was a question of fact for the jury. (Menchaca v. Helms Bakeries, Inc. (1968) 68 Cal.2d 535, 540, 67 Cal.Rptr. 775, 439 P.2d 903.)
In Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 470, 85 Cal.Rptr. 629, 467 P.2d 229, the design of a paydozer was alleged to be defective in that a blind area was created during reverse movement because of the omission of two rearview mirrors. Testimony was introduced that such mirrors were used on ditchdigging equipment, although the time element was not discussed. (Also see Varas v. Barco Mfg. Co. (1962) 205 Cal.App.2d 246, 259, 22 Cal.Rptr. 737.)
In Wilson v. Gilbert (1972) 25 Cal.App.3d 607, 615, 102 Cal.Rptr. 31, over objections that 'subsequent precautions' must be [110 Cal.Rptr. 376] [515 P.2d 320] excluded, the court permitted testimony in a malpractice case that the physician-defendant had taken relevant medical courses after having negligently treated the plaintiff.
In Baldwin Contracting Co. v. Winston Steel Works, Inc. (1965) 236 Cal.App.2d 565, 573, 46 Cal.Rptr. 421, 426, the court permitted evidence of post-accident construction of safety barricades 'on the possibility or feasibility of eliminating the cause of the accident.'
In Darling v. Caterpillar Tractor Co. (1959) 171 Cal.App.2d 713, 720, 341 P.2d 23, 28, a bulldozer manufactured in 1949 was alleged to have been improperly designed in that the clutch mechanism was unenclosed. Evidence was received 'that the tractors manufactured since 1952 were equipped with an enclosure over the clutch to protect it from dust and dirt and that had the clutch in the bulldozer been similarly guarded, plaintiff's leg would not have come in contact with the moving parts of the clutch assembly.'
In Ellis v. H. S. Finke, Inc. (6th Cir. 1960) 278 F.2d 54, a hoist was sold in May 1956, and due to alleged design defects therein the plaintiff was injured. Evidence was received of a new safety device developed by the defendant manufacturer in July 1956, and which, it was claimed, should have been installed in the hoist.
One of the most significant and widely discussed cases in this field is Noel v. United Aircraft Corp. (3d Cir. 1964) 342 F.2d 232 (rehg. den. en banc). Plaintiff alleged the fatal crash of a lockheed Constellation airplane was caused by the pilot's mechanical inability to reduce the speed of a propeller when it developed overspeed. A pitch lock was devised after the sale of the Constellation and installed on all subsequently manufactured Lockheed Electras. The court held there was a post-sale duty to develop and supply curative devices for recognized serious dangers in products already on the market. Liability was found because the defendant manufacturer 'permitted the development of an effective safety device adaptable to these planes to lag behind similar development for other airplanes.' (Id. p. 237.)
It is true that the circuit court in Noel found a contractual post-sale obligation to improve its product. But upon rehearing, the court en banc based liability alternatively on the trial court's finding of negligence in design. (See Note (1966) 40 Tul.L.Rev. 436, 441-442.)
The Noel doctrine is explicated at length in a note in the Ohio State Law Journal ((1966) 27 Ohio St.L.J. 746, 756-757): 'From Noel a duty to improve arises at the time the manufacturer learns of or is chargeable with knowledge of the risk created. Such knowledge may be acquired before or after sale of a particular product unit, but the action necessary to discharge the duty must take place, in part at least, after the sale. In spite of when the duty arises, it continues until the manufacturer has developed and made available the necessary improvements (as respondent failed to do). Thus, Noel is unique in that the duty of a manufacturer to continue developing his product for the protection of persons making use of those units already sold was for the first time articulated.
'Noel results in a rather complicated concept of negligence, the operation of which may be described in general terms as follows: assuming the manufacturer knows or should know of the danger created, but the utility of his product outweighs the risk, he may design and sell the product and be excused from liability in recognition of the limitations of human knowledge and skill if the exercises care up to those limits. Although temporarily excused, he is nonetheless under a duty to use due care and a reasonable amount of his resources in developing a safety device which will reduce the risk. Once he has succeeded, he must make the device available to owners of units previously sold or be liable for injuries occurring at or after the time he should have done so. He is no longer excused from liability because the burden of improving the product no longer [110 Cal.Rptr. 377] [515 P.2d 321] outweighs the probability and gravity of injury. The result is that the manufacturer escapes liability for a period, and society or the individual bears any loss occurring, but only for so long as the manufacturer is excusably limited in knowledge and skill.' (Fn. omitted.)
Returning to the case at hand, the majority concede that plaintiff could properly introduce evidence of the feasibility of changes in the design, as we held in Pike v. Frank G. Hough Co., supra, 2 Cal.3d at page 472, 85 Cal.Rptr. 629, 467 P.2d 229. That, I suggest, is precisely what plaintiff did in this instance. He offered expert testimony on the rational preference for a malleable iron gearbox over an aluminum box because of its greater strength as a safety factor. But most significantly, unlike Noel, plaintiff produced evidence that defendant used malleable iron gearboxes in its own International Post Office Department Scout vehicles manufactured pre-accident, in 1963. 2 Thus evidence that defendant may have changed, post-accident, to iron gearboxes of the same kind in other vehicles, including the type of Scout involved herein, did not involve a subsequently developed remedy or repair and should not have been excluded. It was clearly admissible on the subject of design change feasibility; indeed, on that aspect of the case it was merely cumulative. Defendant had ample opportunity for and did present extensive explanation and rebuttal. Thus defendant's basic quarrel is with a jury which found for the plaintiff on a conflict of fact.
Even if, under some abstruse theory, this essentially cumulative evidence should have been excluded, the failure to do so could not have been prejudicial. There was substantial evidence to support the unanimous verdict of the jury. (Cal.Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
I would affirm the judgment.
TOBRINER and SULLIVAN, JJ., concur.
[*] See 12 Cal.3d 115 for subsequent opinion in case that appeared on pages 323 to 336.
The only evidence with respect to the use of malleable iron gear boxes in the post office vehicles consists of testimony by two employees of defendant, Don Hathaway, a district service supervisor, and Harry Solon, a district service manager.
Mr. Hathaway testified, as follows: 'Q. [By plaintiff's attorney] Are you familiar with the type and kind of Scout that looks like that [a Scout vehicle pictured in a brochure introduced in evidence by plaintiff, admittedly like the 1963 model here involved]-- A. Yes, sir--pardon me. Q. --that is provided to the United States Post office Department? A. I have seen them. Q. Well, they are made by International Harvester? A. That is right. Q. And they have malleable iron steering gear boxes; correct? A. To be honest with you, if you say so, yes, because I haven't been into it. I have had no problems in this respect.'
Subsequently, Mr. Solon testified, as follows: 'Q. [By plaintiff's attorney] Isn't it true that the United States Post Office Department models before 1967 had malleable iron steering gear boxes put on? A. I think you are wrong because I don't know of this. Q. You never heard of that, either? A. No.' (Italics added.)
It is obvious that this testimony does not, as contended by plaintiff, constitute evidence that defendant, as early as 1963, used malleable iron gear boxes on the International Scout vehicles used by the United States Post Office Department.