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Badorek v. General Motors Corp.

Court of Appeals of California
Oct 1, 1970
12 Cal.App.3d 447 (Cal. Ct. App. 1970)



Carol D. BADOREK, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION, Defendant and Appellant. Gary F. DUSTMAN, as Administrator of the Estate of Norman J. Badorek, Deceased, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION, Defendant and Appellant. Gary F. DUSTMAN, as Administrator of the Estate of Philip W. Dustman, Deceased, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION, Defendant and Appellant. Civ. 12007.

Mento, Buchler & Littlefield, by George K. Littlefield, Theodore H. Morrison, Sacramento, for plaintiffs-respondents. Downey, Brand, Seymour & Rohwer by John F. Downey, Sacramento, and James Melican, Detroit, Mich., Legal Staff, G. M. C., for defendant-appellant.

Carol D. BADOREK, Plaintiff and Respondent,
GENERAL MOTORS CORPORATION, Defendant and Appellant.
Gary F. DUSTMAN, as Administrator of the Estate of Norman J. Badorek, Deceased, Plaintiff and Respondent,
GENERAL MOTORS CORPORATION, Defendant and Appellant.
Gary F. DUSTMAN, as Administrator of the Estate of Philip W. Dustman, Deceased, Plaintiff and Respondent,
GENERAL MOTORS CORPORATION, Defendant and Appellant.

Oct. 1, 1970.
As Modified on Denial of Rehearing Oct. 28, 1970.
Hearing Granted and Retransferred to Court of Appeal Jan. 14, 1971.

Mento, Buchler & Littlefield, by George K. Littlefield, Theodore H. Morrison, Sacramento, for plaintiffs-respondents.

Downey, Brand, Seymour & Rohwer by John F. Downey, Sacramento, and James Melican, Detroit, Mich., Legal Staff, G. M. C., for defendant-appellant.

PIERCE, Presiding Justice.

This appeal involves three consolidated actions, two for wrongful death and one for personal injuries. All arise from the same series of events following the collision of two automobiles. Plaintiff-respondents are Mrs. Carol Badorek, who sues in her own behalf, and Gary P. Dustman, suing as personal representative of the estates of Norman J. Badorek, deceased, and Philip W. Dustman, deceased. The sole appellant is General Motors Corporation. The only other defendant whom the appeal concerns (although he is not an appellant) is Mathew Rodgers. 1

A Rambler automobile driven by Mathew Rodgers struck the rear end of a Corvette Sting Ray fastback driven and owned by Philip Dustman. Norman and Carol Badorek, husband and wife, were passengers in the Corvette. (Philip and Carol were brother and sister.) The impact of the two cars caused the fuel tank of the Corvette to rupture. Thereafter, in a resulting gasoline fire, the injury and deaths occurred. Mrs. Badorek lived but received severe facial and body burns. Norman Badorek died of burns at the scene of the accident. Philip Dustman died of his burns a month later.

The theories of the causes of action involved in this appeal were (1) negligence of Rodgers, and (2) strict liability of General Motors arising from defective design of the Corvette, which defect unreasonably increased the risk of harm to the occupants. (An outline of facts below will amplify this preliminary statement.)

General Motors' motion for summary judgment was denied. The case was bifurcated and tried to a jury. A verdict of liability was returned against Rodgers and General Motors. Thereafter the same jury returned a verdict in favor of Mrs. Carol Badorek against the same defendants in the sum of $375,000. Another jury in the death cases returned plaintiffs' verdicts in the amount of $236,152.76 (Norman Badorek) and $40,026.75 (Philip Dustman). Judgment was entered on these verdicts against General Motors whose motion for new trial was denied. It appeals. No appeal was taken by Rodgers. No judgment in the wrongful death actions was entered against Rodgers because of a purported settlement between him and plaintiffs, the validity of which General Motors disputes.

General Motors' appeal raises (essentially) these contentions: (1) that it is not liable for enhanced injuries resulting from defective design in the manufacture of one of its automobiles; (2) that the many procedural errors and alleged acts of misconduct by plaintiffs' counsel and Rodgers' counsel occurring during the approximately five months' (25 volumes of reporter's transcripts) liability trial require reversal; and (3) that error allegedly occurring in the wrongful death actions deprived General Motors of a fair trial. We will hold that the theory upon which liability was assessed against General Motors was a proper one and that substantial evidence supports the verdict and judgment in favor of all plaintiffs, including the damages awarded. Although error occurred during the liability trial, it did not cause a miscarriage of justice and judgment will be affirmed. (Cal.Const., art. VI, § 13.) Similarly, error occurring in the wrongful death actions, although requiring limited judgment modifications, does not necessitate general reversal.

Facts Outlined

The accident happened on that portion of Interstate Highway No. 80, a few miles west of Sacramento, known as the Yolo Causeway, a bridge-like part of a divided, separated highway. We are concerned with the eastbound half, composed of three 12-foot lanes of travel and--on the extreme right--a safety lane eight feet wide. To the south of that is a foot-high curb, a walkway and a substantial waist-high rail. The accident occurred at about 12:15 a. m., Sunday, July 18, 1965. The night was clear; the highway was dry. The fatal accident was preceded by the following sequence of events.

David Ramey, driving in the center lane of travel (called E-2), temporarily lost control of his car when he sought to avoid an object (part of an ironing board) lying in his path. 2 After he regained control of his automobile it was stopped in the left driving lane (called E-3).

Phillip Carlson, following Ramey's car, observed the latter's trouble. He brought his vehicle to a stop behind Ramey's car. He then proceeded west on foot to remove the road hazard.

At approximately the same time truck driver Hosford appeared on the scene, parked his truck and trailer in the safety lane and set out flares to warn oncoming traffic. Before Carlson returned Ramey was able to move his car across the highway to the safety lane where flares were put around. It was parked about 40 to 50 feet ahead (east) of Hosford's truck. Carlson's car was still parked in the fast left lane (E-3) at this time.

The Corvette driven by Philip Dustman next arrived. It was being driven in the center lane (E-2). It slowed down when Dustman observed the flares, persons and vehicles described.

The car last to arrive was the Rambler driven by Rodgers. He too was driving in the center lane. The front of the Rambler struck the rear of the Corvette which was propelled forward and which veered obliquely across the outside driving lane, thence struck and ran along the foot-high curb of the safety lane, until it came to a stop.

Almost immediately after the wheels of the Covette struck the curb the vehicle burst into flames. Eyewitness and other testimony appears to be overwhelming that flames were first seen in the rear of the passenger compartment.

Mrs. Badorek had been seated on the console between the two bucket seats of the Corvette but primarily on the passenger side. Almost immediately after the car came to a stop her husband, Norman Badorek, occupying the passenger seat, left the car through the right door and she followed. Mrs. Badorek's brother, Philip Dustman, had some difficulty removing his seat belt and thus left the car (through the left door) seconds later.

This is one of those rare accidents actually observed by the highway patrolmen who thereafter investigated it. Officers Dahler and Jones were driving west on the north sector of the causeway, 40 feet north of the south sector, at a point approaching, and thence passing, the point of impact. Both saw the flares which had been placed by truck driver Hosford. They radioed for fire equipment. At the nearest available turning point they returned to the scene, where they rendered aid, questioned witnesses and took measurements. Officer Jones saw the Rambler 'sliding into the rear' of the Corvette. He saw the collision clearly. He estimated the speed of the Corvette at that point at from 20 to 25 miles per hour and that of the Rambler at from 40 to 45 miles per hour, i. e., a relative speed of from 15 to 25 miles per hour.

Mrs. Carol Badorek was a witness at the liability trial. Also substantial portions of a deposition given by her were read. She was brought from a state of drowsiness when she heard her brother, Phil Dustman, the driver of the Corvette, state there was apparently an accident ahead. Dustman slowed the Corvette down rapidly. Mrs. Badorek noticed the flares. As they were going by these flares all of a sudden her brother cried out, 'My Cod, we are going to get hit.' They did get hit and everything happened very fast after that. She described the force of the impact as a 'hard jolt.' It could not have been too severe since it only made her sit up straight. She (inferentially unequipped with any safety belt) did not even strike the instrument panel, nor was her neck or head thrown back, and she suffered no significant head, neck or other injuries (except the burns).

In her narration of subsequent events she described hearing a 'boom or something that sounded like an explosion.' She felt heat. She noted that her husband had already escaped through the right door of the car. With Dustman still in the car, apparently unable to undo his seat belt immediately, she also escaped through the right door and ran towards the rear because she heard people's voices coming from that direction. '* * * I just ran as fast as I could.' To reach the people she ran through a fire already started at the rear of the Corvette. She did not then realize that she was already on fire, but she testified that she saw Dustman leave the car and said '[H]e was on fire.' Witness Ramey testified that Mrs. Badorek was on fire when she got out of the car. 3 Carol Badorek ran back towards the Ramey vehicle, parked several hundred feet to the rear of the burning Corvette. There Mrs. Ramey put a blanket around her and extinguished the flames. That was not, however, until she had received facial and body burns, injuries which the same jury evaluated at $375,000.

Although it was the theory of General Motors that there was no gasoline (or vapor) in the passenger compartment, it was not explained how driver Phil Dustman became enveloped in flames which according to Hosford completely consumed all of his clothing. We have noted the testimony of both Ramey and Carol Badorek that Dustman was in flames when he escaped through the left door of the Corvette.

Also Dustman did not go near the flames at the right rear of the car. He ran directly across the highway to lane E-3, 15 or more feet away from the burning car. He was seen to do so by his sister to whom he called for help. At some point she ran over to him and unsuccessfully tried to pound out the flames. Truck driver Hosford finally extinguished them with his fire extinguisher.

We think it would have been difficult for the jury to accept the contention that gasoline or gasoline fumes in the passinger compartment had nothing to do with Mrs. Badorek's burns. Even were the jury to ignore Ramey's testimony that she emerged from the car in flames, since she ran as fast as she could through the fire burning to the right rear of the Corvette, it is difficult to believe that she would have received the burns she did, especially the facial burns, by running through the fire had her clothing not already been impregnated.

Hosford had a 'ringside seat' to the accident. He saw the Corvette passing him at a rapidly diminishing speed with the Rodgers' vehicle overtaking it. He saw the Rambler go into its skid and he saw the two cars collide. The Rambler had been in outside lane E-1 originally, then before it started to skid it changed to lane E-2 where it skidded into the Corvette. The Corvette veered to the right, its metal wheel striking the curb bordering the safety lane. He saw sparks created by that contact. Ramey also saw these sparks. Hosford saw the car erupt into flames, then travel along the curb a short distance where it stopped. The Rambler, he said, traveled only a few feet after the impact. He then ran for his fire extinguisher.

The course of events as they affected Norman Badorek is only partially explained. He was the first to leave the car as it came to a stop. He left through the right door. He was seen in flames in the by-pass 14 feet below. He was seen there both by Hosford and by Police Officer Jones. The flames burning Badorek had already been quenched when Jones reached him. Mrs. Badorek testified she heard her husband calling to her as she ran from the car. She never saw him again. It has been postulated that he fell over the side of the causeway. This seems doubtful because of the height of the railing. It is more lidely that he jumped. He was seen staggering around in the by-pass in flames. Officer Jones observed him first from the top of the causeway and later below. When Jones first saw him, Badorek was 30 feet from the causeway and to the rear of the Corvette. When he talked with Jones he told him 'his baby' was in the car, and Jones returned looking for a baby. (One would surmise that Badorek was referring to his 21-year-old wife as his 'baby.')

It must have been difficult for the jury to reconcile Badorek's death by flames with the reconstruction of the accident by General Motors' experts. Certainly it could not have been expected to believe that Badorek ran to a fire already blazing to immerse himself in flames or gasoline (without having been either by his wife--who had followed him closely, in point of time, in leaving the Corvette--or the other witnesses) and from that point made his 14-foot jump (or fall) into the field below. From the testimony of General Motors' fire expert, the reader gets the impression it was his view that this victim had without reason jumped (or fallen) and that a fire-fall 4 originating at the outlet of a highway drain was the source of his burns.

Jones measured the skid marks of the Rambler. They were 78 feet long. He described what he considered to be the point of impact a few feet beyond the end of these marks. His reason for considering this the point of impact was because of the presence of a great deal of 'debris' from the two cars at that point. 5

Mrs. Badorek estimated the speed of the Corvette at the moment of impact at from 15 to 25 miles per hour. At her deposition she stated it was about 15 miles per hour. She could not fix the speed of the Rambler. We have given Officer Jones estimates of the speed of each car. Hosfore stated the Corvette went by him at about 30 miles an hour and its speed was rapidly diminishing. He fixed the speed of the Rambler at point of impact at 40 to 45 miles per hour. Ramey and Philip Carlson, other eyewitnesses, did not give speed estimates.

Returning to the accident after removing the road hazard previously mentioned, Philip Carlson had not seen the impact but had returned in time to see the fire. He observed Dustman leave the car with his clothes in flames and also saw Carol Badorek as she tried to extinguish the flames burning Dustman. At that time, as described above, the flames which had previously enveloped her had been put out by Mrs. Ramey.

Relevant Design Factors of the Corvette

The Corvette Sting Ray fastback here involved was a 1965 model. Its body material is fiberglass reinforced plastic ('f. r. p.'), a flammable material with properties significantly different from the metal generally used in car bodies. This material can withstand without deformation the application of a broad range of forces which would dent, crease or otherwise deform the body of ca conventional car. However, unlike steel, when the forces exceed the limit of fiberglass tolerance, it cannot bend but must break. Portions of the rear end of an impacted Corvette will shear off and allow transmittal of the remaining forces to its structural steel members. The back side of the Corvette gas tank is 7 and 1/2 inches from the external surface of the car's rear bumperettes. A test collision was made on behalf of plaintiffs (in the holding of which Rodgers' attorney participated) and others were made on behalf of General Motors. Involvement beyond the rearmost 7 and 1/2 inches of the Corvette occurred in even the lowest speed-test collision. The gas tank sits on top of rear steel members and is fastened to them by metal straps which are rigid at the front but form a 'J' curve at the rear. Application of force to the rear of the Corvette results in the straightening out of the 'J' strap, thus eliminating the rear anchors of the tank and allowing it to move forward and upward. The distance between the gas tank in its normal position and the two-part f. r. p. bulkhead isolating the passenger compartment is negligible. The filler neck of the gas tank is forward of the center of the tank's upper side. It extends above the point at which the two parts of the bulkhead are bonded together. Thus, either the leading upper edge of the gas tank or the filler neck is capable of impacting and displacing the upper portion of the one-tenth of an inch thick fiberglass bulkhead when force sufficient to deform the rear end of the Corvette is applied.

Tests of the Sting Ray fastback designed to duplicate the accident demonstrated that the gas tank of the Corvette was subject to rupture and displacement upon application of a wide range of impact forces, commencing with relative relocity differential of 21.6 miles per hour. These tests (performed by both parties) similarly demonstrated the vulnerability of the two-piece fiberglass bulkhead separating the Corvette gas tank from the car's occupants. It was plaintiffs' theory, as well as that of defendant Rodgers, that the Corvette was defectively designed in that a relatively minor impact force will result in the injection of gas droplets into the passenger compartment. The manner in which this transfer of gasoline occurs involves: (1) rupture and upward-forward displacement of the gas tank; (2) against the two-piece fiberglass bulkhead; (3) causing that bulkhead to separate either at the top of the car or at the horizontal bond between the two sections of the bulkhead; and (4) the movement of gasoline from the ruptured tank and/or through the now forward pointing antisurge gas cap into the no longer sealed-off passenger compartment.

Relative Speed of the Rambler and Corvette

Rodgers' Rambler laid down 78 feet of skid marks prior to what was later established by the investigating officers as the point of impact. It came to a stop four feet beyond that point. All those who observed the Rambler prior to the locked wheel skid estimated its speed as 60 plus or minus 5 miles per hour. The reconstruction experts testifying on the basis of the physical evidence established the speed of the Rambler at impact to be approximately 40 to 45 miles per hour. The speed of the Corvette at the time of impact was similarly estimated to have been 15 to 25 miles per hour. In determining the energy expended in a rearend impact the only significant factor besides the weight of the striking vehicle is the relative difference in speed between the two vehicles at impact since linear momentum is derived by multiplying velocity by mass. Thus, the forces involved in a collision between a stationary vehicle and one at a speed of 30 miles per hour are the same as in a collision between those vehicles traveling at speeds of 65 and 95 miles per hour respectively. The jury in estimating the force of impact was entitled to and no doubt did take into consideration the fact that although Mrs. Badorek, the only survivor in the Corvette, described the impact as a 'hard jolt,' it was not sufficiently severe--notwithstanding her somewhat precarious seating arrangement on the console of this sport car--to throw her against the instrument panel or to produce anything resembling a 'whiplash.' 6

General Motor's Liability Under 'Strict Liability' Doctrine

In 1965 the American Law Institute published Restatement Second of Torts, section 402A of which states: '(1) One who sells any product in a defective condition unreasonbly dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

'(a) the seller is engaged in the business of selling such a product, and

'(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

'(2) The rule stated in Subsection (1) applies although

'(a) the seller has exercised all possible care in the preparation and sale of his product, and

'(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

It would seem beyond dispute that plaintiff in the case at bench produced substantial evidence to sustain liability if the unambiguous provisions of that section apply to automobile manufacturers: General Motors was a seller engaged in the maunfacture and sale of Corvettes. Plaintiff and plaintiff's intestates (whom we will refer to hereinafter for convenience as 'plaintiffs') were all users. The Corvette was 'in a defective condition unreasonably dangerous' to them because of defective design. (There is no dispute that the Corvette was expected to reach its users without change in the condition which we have described.)

Professor Prosser in 1966 counted twenty-two jurisdictions in the United States which had adopted strict liability of the manufacturer to the consumer (Strict Liability to the Consumer, 18 Hastings L.J. 15, fn. 40), with California the first to accept the approach that if a 'warranty' was involved it was 'of a very different kind from * * * [that] usually found in the sale of goods' and not subject to the various contract rules surrounding such sales. (Id. p. 17.) The California case referred to in the article is Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897. It had preceded by two years the publication of Restatement Second of Torts, section 402A. It involved a plaintiff injured by a defective tool not bought by the user from the manufacturer who was thus not in privity with it. The court in Greenman swept aside 'privity' as a sine qua non of liability and held the manufacturer to strict liability in torts. As part of its rule Greenman states (at p. 64, 27 Cal.Rptr. at p. 701, 377 P.2d at p. 401): '* * * To establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture of which the plaintiff was not aware that made the Shopsmith unsafe for its intended use.' (Italics ours.) Two reasons are stated for the rule: (1) that the manufacturer by placing the machine on the market had impliedly represented that it was safe for use and that the plaintiff had purchased it and used it in reliance upon that representation (p. 64, 27 Cal.Rptr. 697, 377 P.2d 897), and (2) that the losses due to defective products unreasonably dangerous should be placed upon the manufacturer rather than the user because the former is in a better position to insure against the liability and distribute the premium to the public by adding it to the price of the product (p. 63, 27 Cal.Rptr. 697, 377 P.2d 897). 7

The Greenman case and the rule of section 402A of Restatement Second of Torts have been followed in California in a number of cases. There is nothing in section 402A which excepts automobile manufacturers from liability, and California has applied the 'strict liability' doctrine to several automobile cases involving both personal injuries and property damage, e. g., in Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168; in Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583, 75 Cal.Rptr. 652, 451 P.2d 84 (injury to a bystander); in Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639, 649, 55 Cal.Rptr. 94; and in Seely v. White Motor Co., supra, 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (both of the latter cases involved property damage). In the Seely case it was held that in an appropriate case contract law--breach of warranty--was still available.

The law was applied to an automotive 'paydozer' in the very recent case of Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229, and this court applied the rule in Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 46 Cal.Rptr. 552 (hear. den.).

These cases--and other cases we need not cite--have been ones in which the tort involved was a direct injury, i. e.., one in which plaintiff was hurt in an accident (sometimes called 'the first accident') caused by the defectively designed machine or some part thereof--although the accident did not necessarily involve a collision of two automobiles (e. g., in Vandermark the defective vehicle hit a light post). The case at bench is apparently the first case in California to reach an appellate court where a previous accident had occurred, but in which there were enhanced injuries (from a 'second accident') due to the allegedly defective product. Here the casualty was increased from (a) what probably would have involved primarily property damage to (b) one of serious personal injuries. Within the rule of strict liability and the reasons stated for that rule this court cannot rationalize holding the manufacturer in the one case and absolving it in the other. That, however, is the contention of General Motors.

It urges several reasons. The first is that collisions are not an 'intended use' as those words are used in Greenman. (We have quoted them in italics in the excerpt above.)

The principal case upon which General Motors relies in this respect is Evans v. General Motors Corp. (1966) 7 Cir., 359 F.2d 822. A negligence case, 8 it involved an sccident in which the driver of a 1961 Chevrolet station wagon built with an 'X' frame had suffered fatal injuries when his car was struck broadside by another vehicle. Plaintiff contended that perimeter frame rails (or something similar) used by other manufacturers should have been a part of the design and that a car with an 'X' frame was dangerously defective in that it unreasonably enhanced the risk of harm in a side-impact collision. In holding that the maunfacturer was not liable the court said on page 824: 'A maunfacturer is not under a duty to make his automobile accident proof or fool-proof; nor must he render the vehicle 'more' safe. * * *' The court also said (p. 824): 'Perhaps it would be desirable to require manufacturers to construct automobiles in which it would be safe to collide, but that would be a legislative function, not an aspect of judicial interpretation. * * * [Citation.]' The majority opinion (in a two to one decision) stated--we think somewhat unrealistically--'The intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer's ability to foresee the possibility that such collisions may occur. As defendant argues, the defendant also knows that its automobiles may be driven into bodies of water, but it is not suggested that defendant has a duty to equip them with pontoons.' (P. 825.)

The rationale of Evans is difficult to follow: to maunfacture an automobile which is accident proof is an obvious impossibility--to say so is to express a truism. To adopt that truism as the basis for a rule that, therefore, under the law of negligence, there is no duty to exercise care to design a 'safer' automobile is a non sequitur. It confuses crash-proof with crash-worthiness.

As illogical as the Evans rule is, it has been accepted in several jurisdictions. But, with one exception, the cases adopting the Evans reasoning have been ones in which the standard rules of negligence rather than the doctrine of strict liability have been applied. 9

(See e. g., Schemel v. General Motors Corp. (7th Cir. 1967) 384 F.2d 802; Schumard v. General Motors Corp. (S.D.Ohio 1967) 270 F.Supp. 311; Willis v. Chrysler Corp. (S.D.Tex.1967) 264 F.Supp. 1010.)

The exception to the unanimity with which cases following Evans apply negligence dogma is Walton v. Chrysler Motor Corp. (Miss.1969) 229 So.2d 568. Both negligence and strict liability had been pleaded, and it appears that Mississippi has recognized the strict liability doctrine. The court squarely met the issue (on p. 570): '[I]t is cleat that the alleged defect in the automobile did not cause the accident. It is equally clear, however, that the weakness of the bumper and screw [which had sheared, causing the seat back to collapse] did, or could have, added to the seriousness of the plaintiff's injury.' The court found the Evants formula palatable. It held the automobile maunfacturer was 'not liable for injuries resulting from highway collisions caused by other automobile drivers.' It deemed, as did the Evans majority, that so long as the car was designed to run safely along untenanted highways its design was neither unreasonably defective nor was a duty of care violated.

The Evans rule has not enjoyed universal acceptance (and successively it seems more and more jurists and scholars have found its reasoning faulty). At the outset it should be noted that Judge Kiley in his dissent in Evan quoted with approval a New York Times editorial entitled 'Safety Gets Into Gear,' commenting upon a hearing in the United States Senate: 'The central issue is the 'crash-worthiness' of an automobile. Since there are bound to be accidents, no one expects a crash-proof car. But cars can be designed to minimize the effects on the passengers once the collision has occurred. It is old-fashioned to think that such a car would have to look or drive like a Sherman tank. Safety and style need not be enemies.' (Id. p. 827, fn. 2.) And he stated on p. 827: 'In my view, General Motors' duty was to use such care in designing its automobiles that reasonable protection is given purchasers against death and injury from dccidents which are expected and foreseeable yet unavoidable by the purchaser despite careful use. See Restatement (Second), Torts § 395, especially comments j and k to this section, and § 398 (1965).'

Larsen v. General Motors Corp. (8th Cir. 1968) 391 F.2d 495, 498, also a negligence case involving more serious injuries after a head-on collision, did not accept the rule of the majority of the Evans case. It held that where the manufacturer's negligence in design caused on unreasonable risk to be imposed upon the user of its products (there a defect in the steering assembly) it was liable for the injury. (P. 502.) The reason for the rule was stated to be: although the intended use and purpose of an automobile is to travel the streets and highways, such cars more often than not travel in close proximity to other vehicles and at speeds that carry the possibility, probability, and potential of injury-producing impacts. The realities of the intended and actual use are well known to the maunfacturer and to the public. (Id. p. 502.)

The Larsen case states on page 503: '* * * While all risks cannot be eliminated nor can a crash-proof vehicle be designed under the present state of the art, there are many common-sense factors in design, which are or should be well known to the manufacturer that will minimize or lessen the injurious effects of a collision. The standard of reasonable care is applied in many other negligence situations and should be applied here.' Larsen expressly disapproved the Evans majority opinion.

In footnote 5, on page 503, of Larsen the court expresses a belief that the rule can rest on general negligence principles but says: 'with each state free to supplement common law liability for negligence with a doctrine of strict liability for tort as a matter of social policy expressed by legislative action or judicial decision.' (Italics ours.)

Dyson v. General Motors Corp. (E.D.Penn.1969) 298 F.Supp. 1064, is also an 'enhanced injury' case. The alleged defective design of the roof of a Buick hardtop did not cause the accident but the severity of plaintiff's injuries was greatly increased which the roof failed to support, even partially, the overturned car. Among other causes of action strict liability under Restatement Second of Torts, section 402 A was pleaded. The action was before the court on a motion for judgment on the pleadings. The court holds that the Restatement section is applicable. The Evans case is discussed. On page 1067, footnote 4, it is stated: 'Evans has not been received favorably by the commentators. (See e. g., Nader & Page, Automobile Design and the Judicial Process, 55 Cal.L.Rev. 645 (1967); Note, Maunfacturer's Liability for an Uncrashworthy Automobile, 52 Corn.L.Rev. 444 (1967); 42 Notre Dame Lawyer 111 (1967); 80 Harv.L.Rev. 688 (1966); 1966 Utah L.Rev. 698.)'

On page 1068 in footnote 6 Dyson quotes from one of these critical commentators: "The intended use standard does not in itself dictate the result reached by the court in Evans. That standard, even if narrowly construed, should not exempt the manufacturer from responsibility for the faulty performance of his product when consequences occur which he may readily foresee as incident to its normal use. * * * There seems to be no rational basis for splitting the event of the collision and allowing recovery only where the condition of the automobile caused the accident; the accident and injury are all part of the same happening in which defendant's failure to use reasonable care caused harm. * * *' 80 Harv.L.Rev. 688, 689 (1966).' (Italics ours.)

The court in Dyson reaches the conclusion, after citing and quoting from many authorities (a repetition of which here would extend this opinion in length beyond any necessity), that a plaintiff who brings himself reasonably within the provisions of Restatement Second of Torts, section 402A is entitled to recover even when the case is one of enhanced injury (or a 'second accident').

A commentator in the 1966 Utah Law Review cited in Dyson (fn. 4 thereof), also critical of Evans, supra, concludes with this statement (p. 706): 'Decisions holding that the manufacturer has no duty when the product is used in a highly unusual manner are, of course, entirely reasonable; the manufacturer should not be required to foresee every unusual use that may be made of his product nor should he be required to produce a chattel that is devoid of risk. But when the abnormal use is a common occurrence, as is an automobile accident, public policy is disserved by shielding the manufacturer from the duty to anticipate this use. Courts should impose a duty upon automobile manufacturers to produce a reasonably crashworthy car.' 10 (Italics ours.)

The rationale and the rule of the Evans case has also been rejected in two Oregon cases, Heaton v. Ford Motor Co. (1967) 248 Or. 467, 435 P.2d 806, and Storey v. Exhaust Specialties and Parts, Inc. (Or. 1970) 464 P.2d 831.

Two California cases are cited by General Motors: Poore v. Edgar Bros. Co. (1939) 33 Cal.App.2d 6, 90 P.2d 808, and Hatch v. Ford Motor Co. (1958) 163 Cal.App.2d 393, 329 P.2d 605. The first of these cases arose 24 years before the adoption of the doctrine of strict liability in California and the second five years before. Poore involved the sale of a secondhand car with a windshield of nonshatter-proof glass. That may well have seemed not in violation of a duty of care as a matter of law in 1939 but dangerously defective design to a trier of fact in 1970. (See Rest. 2d, Torts, § 402A, Comment i; Traynor, 32 Tenn.L.Rev. 363, at p. 370.) As for the theory of an 'intervening cause' in Poore see Manufacturer's Liability for an Uncrashworthy Automobile (1967) 52 Corn.L.Rev. 444, 449-450, and for the fact that intervening causes do not necessarily absolve the original tortfeasor, revisit Prosser, Torts (3d ed.) section 51, page 315. Hatch v. Ford Motor Co., supra, was a case in which a 6-year-old child walked into the projecting radiator ornament of a properly parked automobile. The facts in Hatch are so readily distinguishable from this case that we deem comparison irrelevant.

General Motors argues further: (1) that 'the public interest is best served if [safety standards] are legislatively formulated'; (2) that present statutes have preempted the field; (3) that the problems affecting automobile design are so complex that relevant evidence is so abstruse only experts in the field can understand it--it is beyond a jury's comprehension; (4) that rules of liability based either upon the judicial declaration of a duty of care to manufacture crash-worthy automobiles or one fixing liability for unreasonably defective design would create a volume of highway crash litigation that would imperil the American judicial system. We will discuss these contentions (by number) in the order in which they are stated. At the outset, however, we point out that if the arguments enumerated were sound, we can think of no reason they would not apply with equal force to direct injuries solely and directly resulting from the maunfacturer's unreasonably defective design. Acceptance by the courts generally would logically require reexamination of MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050, and in California overruling of our Supreme Court in Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168, and in Elmore v. American Motors Corp., supra, 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84.

(1) In Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901, the Supreme Court considered the public interest better served when 'injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.' In Greenman the court cited with approval the concurring opinion of Justice Traynor in Escola v. Coca Cola Bottling Co., supra, 24 Cal.2d 453, at page 462, 150 P.2d 436, at page 441, where it is stated: 'Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public.' To this court the public interest is equally 'better served' when unreasonably defective design is found to have been the cause of enhanced injuries and the manufacturer is only one of two tort-feasors as in cases where it is the only one.

(2) It is true that the legislative branches of both the state and national governments have addressed themselves to the ghastly problems of highway safety. (Our only statistics close at hand, already out of date, come from a 1965 computation--when 49,000 Americans were killed and $1,800,000 were injured; 52 Corn.L.Q. 444; 52 Iowa L.Rev. 953.) California in division 12 of the Vehicle Code and particularly in section 28100 thereof, adopting the Vehicle Equipment Safety Compact, and the federal government in the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C.A. § 1392, subd. (d)) have made a beginning towards fostering safer driving conditions and safer automobiles in which to drive. But neither Legislature nor Congress has covered, nor attempted to cover, the question of a manufacturer's liability for unreasonably defective design generally. Nor has the legislative branch of either government made any attempt to preempt the field. In fact the United States government has expressly denied any wish to do so. 11 It is stated in 52 Iowa Law Review at page 956: 'It is also significant that the manufacturers, armed with this apparent predisposition of the courts against holding them liable for negligence in design, and by general public apathy toward occupant safety, have not developed safety in design at the rate which should be expected from the highly profitable automobile industry. In contrast is the high degree of proficiency that has been developed in avoiding construction defects.'

(3) Juries decide medical malpractice and personal injury actions where damages are fixed by them on the basis of medical experts testifying to the most complex matters. Juries also establish values testified to by real estate appraisers using many factors difficult to apply. We have read the testimony of the experts in the case at bench. We find it no more difficult for a layman to comprehend than experts' opinions in many other types of litigation.

(4) As to the argument that claims for unreasonably defective design of automobiles producing enhanced injuries (or the 'second' accident) will flood the courts and 'imperil the American judicial system,' we see only another alleged tortfeasor added to an already existing controversy. Moreover, we agree with the writer in 21 South Carolina Law Review, supra, at pages 452-453, who quotes Professor Prosser, Handbook of the Law of Torts (3d ed. 1964) section 11, at page 43: "[i]t is the business of the law to remedy wrongs that deserve it, even at the expense of a 'flood of litigation,' and it is a pitiful confession of incompetence on the part of any court of justice to deny relief on such grounds."

Based upon all of these considerations we cannot reach the conclusion either that state or federal legislation has covered or preempted the field at issue in this case, or that this court is justified in creating a court-made exception to Restatement Second of Torts, section 402A, already the law generally in California, for the benefit of automobile manufacturers. Rather, we hold that such manufacturers are strictly liable for enhanced injuries ('the second accident') caused by unreasonably dangerous defective design and construction of their products under the conditions described in section 402A (which conditions exist in this case).

Participation by Defendant Rodgers in Liability Trial

The trial was bifurcated. Defendant Rodgers denied liability and (represented by his attorney, Rust) participated in that phase. Although Rodgers had denied liability, he admitted he had driven negligently and was responsible for the collision with the rear end of the Corvette. It was urged that that collision, however, called 'the first accident,' was not a proximate cause of any of the injuries; that these had resulted solely from the unreasonably defectively designed Corvette. The jury did not accept that theory. It found both Rodgers and General Motors liable.

The theory of Rodgers' position was that General Motors defectively designed Corvette and injuries resulting therefrom constituted an unforeseeable superseding and intervening cause breaking the chain of causation started by Rodgers.

General Motors urges that the question of liability should have been determind by the court from the opening statement and that a directed verdict should have been declared removing Rodgers from that phase of the trial--either by a motion by plaintiffs for a directed verdict or by the court. First, it is insisted that there was impropriety in the urging of the point by Rust; secondly, that the failure of plaintiffs' lawyer, Littlefield, to move for a directed verdict constituted an improper teaming up of adversaries against General Motors; and thirdly, that the trial court (unwittingly) furthered that unholy alliance by not removing on its own motion Rodgers (and his attorney) from the liability trial at the outset.

We do not agree. "* * * Even if a legal proposition is untenable, counsel may properly urge it in good faith; he may do so even though he may not expect to be successful, provided of course, he does not resort to deceit or to wilful obstruction of the orderly processes.' [Citation.]' (Smith v. Superior Court (1968) 68 Cal.2d 547, 560, 68 Cal.Rptr. 1, 9, 440 P.2d 65, 73; see also Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 788, 192 P.2d 905.)

Here Rust was admitting negligence but denying proximate cause; as long as he denied proximate cause he was not admitting liability to the plaintiffs; so long as there was an issue of proximate cause between Rodgers' negligence and the injuries there was a jury question as between plaintiffs and Rodgers. Further, one codefendant in a tort case may be actually and legitimately hostile to the other and attempt to shift liability to the other. (See Supreme Court's per curiam opinion denying a hearing in Goehring v. Rogers, 67 Cal.App. 253, 262-263, 227 P. 687.)

On the second point, plaintiff, through his attorney, Littlefield, is quite frank as to his reason for not moving for a directed verdict. Rodgers, the record shows, was heavily insured. Plaintiff Carol Badorek, the record also shows, was dependent upon Social Security for subsistence. In California there is contribution between joint tort feasors. (Code Civ.Proc., §§ 875-877.) Obviously, it was to the interests both of Rodgers (and his insurer or insurers) and of plaintiffs that both defendants remain in the case. There was little, if any, corresponding risk to plaintiffs that Rodgers would escape as a judgment debtor. Should the unlikely consequence of a verdict in Rodgers' favor occur, the predictably successful outcome of a motion of a judgment notwithstanding the verdict or of a motion for a new trial made the tactical decision to forego the doubtfully successful motion for a directed verdict, at the outset of the trial, a wise one. Under the circumstances the 'marriage of convenience' was proper and not unethical.

The third contention, that the trial judge of his own motion should have directed a verdict against Rodgers on the opening statement of his attorney Rust, can be disposed of in a sentence. The complexities of the application of the doctrine of superseding, intervening cause are such that to expect a trial court--before any evidence had been heard--to prophesy what would be proven would be to exact a pre-judgment dangerous, foolhardy and improper. 12

The Misconduct Claims

(1) References to the Size of General Motors.

Both Littlefield and Rust referred to the wealth and size of General Motors. The Supreme Court (in Hoffman v. Brandt (1966) 65 Cal.2d 549, 553, 55 Cal.Rptr. 417, 421 P.2d 425) and this court (in Love v. Wolf (1964) 226 Cal.App.2d 378, 388, 38 Cal.Rptr. 183 (hear. den.)) have referred to the impropriety of reference to the size and wealth of a defendant corporation. In this case such references were harmless. The position of General Motors among automobile manufacturers is a matter of universal knowledge. Moreover, timely objections were not made to such references. After reading the record in its entirety (insofar as it relates to this subject) we conclude that General Motors gambled upon the tactics now complained os as backfiring. That a party may not do and still reserve his point on appeal. (Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610-611, 39 Cal.Rptr. 721, 394 P.2d 561.) 13

(2) Effect of use of Leading Questions and Court's Allowance of Repetitious Question

To permit attorney Rust to participate in the liability phase of the trial was one thing. It was quite another matter when the trial court permitted him to frame leading questions on cross-examination and repetitiously to duplicate subject matter coverage of witnesses who, although originally called by plaintiff's attorney Littlefield were obviously not only amicable to but (in the case of expert witnesses) actually jointly hired by both Rust and Littlefield. Why the court permitted such tactics while (in certain instances) admitting it was probably error to do so is as mystifying to this court as was Rust's bland insistence at the trial of the right to pursue that course. 14 That was error. Accordingly, an evaluation of the evidence is in order to weigh the effect of such error.

The contended harmfulness of the improper cross-examination and questioning is claimed principally as regards the testimony of plaintiffs' experts James Collins and Donald Moon. Mr. Collins, a mechanial and metallurgical engineer educated at the California Institute of Technology, was employed by the University of California Radiation Laboratory at Livermore and is a specialist (and author) in the field of the analysis of highway collisions and their causes. Dr. Moon, a mechanical engineer with degrees of Ph.D., M.S. and B.S., and with his specialty in 'materials science,' had at one time been employed (as a project engineer involved primarily with transmissions) by General Motors but had left it on educational leave to pursue his doctoral studies. He was familiar with the 1965 Corvette and with the overall design of the car and was in a position to evaluate it. At the time he testified in this case he was an assistant professor at the University of California at Davis where he taught all basic mechanical engineering courses offered. During the summer of 1967 he was employed by the University of California Lawrence Radiation Laboratory at Livermore, was an associate of Mr. Collins and had, in fact, been brought by him into the case.

We have read and have attempted to analyze the testimony of these witnesses with two considerations in mind: (1) whether leading questions propounded by Rust could have had an influence on the jury adverse to General Motors and (2) as a part of the reweighing process that the finding of error imposes upon a reviewing court. (See fn. 6.)

The same reweighing process caused us not only to analyze the testimony of the two experts, Collins and Moon, but also to study with care much of the testimony in the 26 volumes of the record for the purpose of comparing the testimony offered by plaintiffs and defendant Rodgers on the one hand with that produced by defendant General Motors.

When Rust cross-examined Mr. Collins, the latter had already been on the stand for five days. It was on the sixth day that an objection was first raised to the manner of Rust's cross-enamination. He had been subjected to extensive voir dire examination, directly examined by Littlefield, cross-examined three times by General Motors' attorney Sedgwick. We have read his entire testimony. (It includes many leading questions on direct examination which had been received without objection.)

Collins, after qualifying as an expert following a thorough voir dire examination by General Motors' attorneys, made it plain, with reasons clearly stated, that in his opinion 'the placement of the 20 gallon metal tank in the particular location on the Sting Ray hardtop automobile where it is makes this vehicle an extremely * * * [defective design]; that the possibility that fuel would be deposited into the passenger compartment in the event of a rear end collision was entirely too high.' He described in detail the manner in which the gas tank was affixed and why it would rupture at (relative) impact speeds of 25 to 30 miles per hour and the manner in which the two-piece sectioned fiberglass bulkhead between the tank and the passenger compartment would break, allowing gasoline or gasoline vapor to escape into that compartment. The different means by which spark ignition of the vaporized gasoline might easily occur were described with precise clarity.

Shortly before the trial a test collision had been staged at Lincoln, California, between a Rambler and Corvette. Collins had witnessed this and participated in the recreation to permit conditions duplicating those of the actual accident (as testified to by the eyewitnesses and demonstrated by the physical evidence) as closely as possible. Moon also had witnessed the test crash at Lincoln and had consulted with Collins regarding the manner in which it should be conducted to duplicate as nearly as possible the conditions existing during the actual accident.

The gas tank of the test Corvette had been filled with water impregnated with a red dye as a substitute for gasoline. In the test collision the fuel tank had ruptured in a unmber of places, the bulkhead had broken and the red fluid had escaped into the passenger compartment. The wrecked cars were on display in the basement of the courthouse and from time to time court was held at that location. Collins testified there and by referring to the actual automobiles tested was able to demonstrate much of that to which he had previously testified. Moving pictures and photographs of the test collision were shown. Through such means further elucidation was made by Collins. Thereafter examination of Collins continued on many subjects. His familiarity with the numerous factors involved in appraising safe contrasted with defective design was thorough. We have concluded that without Rust's cross-examination and before it began the thrust of Collins' testimony had become thoroughly implanted in the jury's mind. During Rust's leading cross-examination it became apparent that Collins was not a 'yes' man. He denied categorically numerous questions suggesting a 'yes' or 'no' answer. When he disagreed with a suggestive question, he was at pains to explain his true beliefs. It would be unfair not to mention that attorney Sedgwick, representing General Motors, was himself repetitious, e. g., at the later stages of Collins' testimony questions in the nature of voir dire examination which had been extensive and torough during the first days of his examination were aganin referred to over and over.

Dr. Moon's testimony was equally explicit. He stated his opinions and gave the reasons therefor articulately. His opinion was unequivocal that the gas tank (as we have described its positioning with reference to the rear of the car, the f. r. p. bulkhead and its closeness to the passenger compartment) in the Sting Ray fastback Corvette was defectively designed. The opinion may be stated to be based upon the fact there was too great a probability that in rear-end collisions at relative speeds of from 25 to 35 miles an hour gasoline would reach the passenger compartment where it could ignite. Leading questions were propounded by Rust and permitted over objection. In some cases the questions did not violate the purpose of restrictions as stated in the Evidence Code. (See fn. 14.) Dr. Moon, equally with Collins, was an independent thinker and like Collins on 'yes' man. He conducted himself as a professor imparting information, not parrotting statements fed to him by another. One is left with the impression of a witness expressing his own positive convictions; also that the test which had been set up and held at Lincoln was fairly held and as closely similar to the fatal collision as was possible on the available information.

The conclusions drawn by General Motors' expert witnesses based on physical and empirical evidence (including five crash and similar tests) differed from those reached by plaintiffs' witnesses upon similar bases in regard to the force of impact. General Motors posited impact at the relative speed of 40 miles per hour while plaintiffs submitted it to have occurred at about 28 miles per hour. Additionally, although some of General Motors' experts admitted a broken or displaced bulkhead between the Corvette's gas tank and the passenger compartment, generally they not only denied that gasoline or fumes had caused flames which touched any of the car's occupants while they were in the car but also denied that any gasoline (or vapors) had reached the passenger compartment at all--at least until after the occupants had escaped. These opinions could only have been reached by ignoring the testimony of the eyewitnesses. 15 We have examined the testimony relative to the data sought by and submitted to the General Motors' experts.

It is our opinion, after the study we have made of the record, that the error we have reported resulted in no miscarriage of justice within the meaning of the California Constitution, article VI, section 13. People v. Watson (1956) 46 Cal.2d 818, at page 836, 299 P.2d 243, at page 254, states: '[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' We see no such reasonable probability in the case before us.

The Question of Intoxication

Rodgers was an alcoholic and was intoxicated at the time of the collision. The court denied General Motors the right to bring in evidence of intoxication because Rodgers had admitted negligence. Had such evidence been admitted it would have shown that he was found guilty of manslaughter in regard to the deaths of plaintiffs' intestates, had been convicted previously of driving while intoxicated, and was at the time of the trial serving a term of imprisonment on the manslaughter charge.

Evidence of intoxication is not necessarily to be excluded because negligence is admitted. General Motors' theory is that relevance is the first rule of admissibility and that evidence of Rodgers' intoxication was certainly relevant. We concede the first part of that contention but we are not so willing to accept the second. Before we consider the question of relevancy we will assume it and point out that such assumption does not concede the fact of admissibility. It only brings into the discussion the question of the application of the rule of 'limited admissibility.' That rule recognizes that some evidence may be valuable for one purpose and improper for another. 16 If proof of a party's intoxication would merely serve to create bias and prejudice against him on the part of the jury, such evidence should be excluded. But evidence of intoxication may also have probative value, e. g., if, in an accident case, it shows what happened (not merely why it happened). Under such circumstances the trial court must necessarily weigh the relevance against the bias-and-prejudice-producing effect. A trial court has a discretion in that determination. If in the exercise of that discretion he determines with reasonable accuracy that the harmful results outweigh the probative value he may reject an offer of proof and a reviewing court should not interfere.

General Motors contends that evidence of Rodgers' drunkenness was relevant to show the force of impact of the two cars. It makes other allied contentions of relevance. 17 We are not convinced that Rodgers' condition of insobriety made a significant contribution to the proof properly relevant to General Motors' case. Rodgers had admitted negligence. Much more than that the following facts were conceded and established beyond reasonable doubt: that Rodgers could easily have avoided the Corvette; that he, driving at a speed of from 65 to 70 miles per hour, was in lane E-1, turned into lane E-2 and went into a 78-foot skid; that his brakes were locked until the impact, wherever it occurred or within a few feet therefrom. Given those facts--undisputed--what relevance does the reason (the why) of Rodgers' bizarre behavior have? The impercipient presence of the driver of the 'bullet' car at that point was of no more relevance than if, instead of Rodgers, the Rambler had been occupied by one of the anthropometric dummies utilized by General Motors' witness Derwyn Severy--or so it seems to us. It made no difference as to the force of impact or to any of the other issues discussed in General Motors' briefs. The rule of intervening, superseding causes would stil be inapplicable to relieve General Motors of liability. The question of intoxication had minimal value, if any, for impeachment purposes. Nothing to which Rodgers testified had varied from the testimony of the eyewitnesses.

But should we have failed to notice some aspect of relevancy clearly outweighing the exclusion reasons and thus making the rejection of intoxication by the trial judge error, there are still two reasons why it was not prejudicial. It has already been stated that error in permitting Rust to cross-examine improperly was harmless. Secondly, General Motors' counsel by remarks, in his opening statement and in his argument, by questions which themselves hinted at Rodgers' condition and the frequency with which these tactics brought admonitions from the court did, in our opinion, inform the jurors of Rodgers' intoxication as effectively as though proof of intoxication had been introduced. No amount of admonition by the court in its instructions could have erased that implanted fact.

Admission of Evidence of Another Accident

Evidence of another accident was admitted into evidence. That accident, in which a 1966 Sting Ray Corvette fastback was struck in the rear by a 1961 Ford sedan, occurred on a Los Angeles freeway in January 1967. General Motors contends the admission of this evidence was error for several reasons which we will discuss.

At the outset it is settled that evidence of accidents similar to the one at issue is admissible. Although the court in Wills v. Price (1938) 26 Cal.App.2d 338, 344, 79 P.2d 406, had stated as dicta that rule was applicable only to prior similar accidents, it had been earlier applied by our Supreme Court to subsequent accidents. (Robinson v. Western States Gas etc. Co. (1920) 184 Cal. 401, 406-408, 194 P. 39.) General Motore does not challenge that evidence of subsequent accidents may be relevant in a proper case. That is the view taken in Witkin, California Evidence 2d, section 353, pages 313-314. While the author observes admissibility should be denied as irrelevant to prove the 'issue of knowledge or notice of a possibly dangerous condition at the time of the injury,' it is just as relevant as a prior accident 'to show that the condition was in fact dangerous or defective, or that the injury was caused by the condition. [Citations.]' (See also Ginnis v. Mapes Hotel Corp. (Nev.1970) 470 P.2d 135, 139-140.) We agree and hold that is a proper rule.

Since no two accidents ever happen in precisely the same way (see McCormick v. Great Western Power Co. (1932) 214 Cal. 658, 667, 8 P.2d 145), it is obvious that 'similarity' must be gauged to the facts of each case in the determination of relevancy. Therefore we are sent to the record again. It shows: 20-year-old Robert Burgard was driving his father's Corvette along San Diego freeway in medium or heavy traffic on a Sunday afternoon at 5 p. m. With him was a young lady. They were driving to the UCLA campus. There was a light rain. The stopping of traffic ahead caused them to stop about 20 feet behind the car ahead of them. They had been stopped from 8 to 10 seconds when they were his from the rear by the Ford. That car was driven by Jeffry Felz, also a young man of twenty. He was driving his father's 1961 Ford southbound at a speed of about 50 miles per hour. He noticed the Corvette when it was 7 to 10 car-lengths ahead of him. He applied his brakes immediately and they took hold. The car immediately slowed down but it struck the stopped Corvette. Felz was then traveling at from 25 to 30 miles per hour.

The Corvette was pushed forward into the car ahead. It was the second impact which caused the Corvette to burst into flames. Both Burgard and his passenger were in flames when they exited from the Corvette.

That Corvette's gas tank was brought into court in the trial of the action at bench and photographs of the two cars were compared.

We hold that the factors of similarity were sufficient to permit the admission of this evidence (see Evid.Code, §§ 351, 352): both were rear-end accidents, the design and type of the two Corvettes involved were identical (although the Ford was somewhat heavier than the Rambler, the difference in weight did not offset the other similarities), the impacting speeds were substantially the same as those described here by the eyewitnesses and as used in plaintiffs' crash tests. In both accidents the Corvette gas tanks ruptured at the first impact, there was no fire at the first impact but there was one at the second, fire in both cases appeared in the passenger compartments and the Corvette occupants left in flames. If the gas tanks and photographs exhibited were dissimilar, we are not advised in what respect.

We note that General Motors' fire expert Jasich testified that it was his opinion (ignoring eyewitness testimony) there was no fire in the passenger compartment of the Badorek vehicle prior to the exit of its occupants. Evidence adduced pertaining to the Los Angeles accident was relevant to negate that theory since it shows, at least inferentially, that passenge-compartment fire was virtually coincident with second contact.

The record shows that Burgard was in the courtroom for a brief period during the liability trial in the instant case. His testimony, however, was given by deposition (while that of Felz was given in person). There was no reference informing the jury that the person present was Burgard. We cannot agree that the presence of a person with burns in the courtroom would necessarily mean to the jury that that person was Burgard. We do not accept General Motors' contention that the foregoing incident was misconduct.

Lastly, in this connection, it is urged that it was prejudicial error for the court to admit evidence of the Los Angeles accident based only upon an offer of proof in chambers. Evidence Code section 403 is cited in support of that contention. That section places the burden of producing evidence of the existence of necessary preliminary facts upon the party offering the evidence. Section 402, subdivision (c), however, codifies former law to the effect that evidence may be held properly admitted provided there is evidence produced ultimately sufficient to sustain a finding of the existence of the preliminary fact. (Wilcox v. Berry (1948) 32 Cal.2d 189, 192, 195 P.2d 414.)

We hold that proof of the Los Angeles accident was properly received.

Exclusion of Evidence of the 'State of the Art'

Early in its opening brief General Motors' counsel observed: 'Station wagons and sports cars are no more the subject of valid comparison than potatoes and apples.' That statement must have been intended to have limited application, or to refer only to the opinions expressed by plaintiffs' experts. Sixteen pages of reporter's transcript are devoted to General Motors' somewhat undefined request to make just such comparison. It claimed the right to bring in evidence regarding the placement of gas tanks, when they would rupture, location and types of filler necks as an integral part of such, proximity of such tanks to the rear of the car (but, significantly, not the proximity to passenger compartment). Such evidence was sought generally to be introduced with reference to and (and presumably every) make and type of car excepting the Sting Ray fastback Corvette. It was sought in the name of the 'state of the art.' We have been given to understand that that term properly may be applied to how a product could have been designed with that degree of safey based upon the extent of the knowledge and experience of the automotive industry at the time the product was built--not just upon what the manufacturers of other cars had done. General Motors, however, in this part of its argument takes from context a statement by Chief Justice Traynor in 32 Tennessee Law Review, The Ways and Means of Defective Products and Strict Liability (1965) 363, 367, that the 'manufacturer is then liable for injuries resulting from deviations from the norm.' General Motors construes this to mean that regardless of how badly desiged the placement of its gas tank in signed the placement of its gas tank in the Sting Ray fastback Corvette from the passenger compartment may have been, separated as it was only be a thin two-piece fiberglass bulkhead, it could not be held accountable if it could prove that similar placement of the thanks of other makes and types of cars was 'the norm.' 18

The court, however did not give an unequivocal negative ruling. It did point out that the 'offer' as broadly made would cause the trial to 'go on forever.' It further stated, 'if you can show that there is a standard in the industry--if there was in 1965--in relation to where a gas tank should be placed, I would be inclined to permit evidence on that * * *.' No specific offer of proof has been pointed out to us where the court deviated from that ruling. Evidence was admitted as to the location of gas tanks on other sports cars, including the Jaguar XKE and the Lotus Elan. Assuming that evidence was excluded relating to gas tank placement and the other matters referred to under this caption, we hold that such rejection was within the court's discretion under Evidence Code section 352--its time consuming factor would seemingly have greatly outweighed its probative value.

Judicial Notice of Congressional Hearings

General Motors contends it was error for the court to delay the announcement of its decision to take judicial notice of certain proceedings of a Senate committee hearing until immediately after Littlefield concluded his argument. The request had been made earlier that the court take such judicial notice but the ruling had been deferred. The objectionable matter related to a statement by the executive vice president of General Motors to the committee on April 5, 1966, expressing his opposition to the imposition of federal standards of automobile safety. Admission of this evidence was sought for purposes of impeachment of General Motors' witness, Confer, that a certain crash test of a Corvette performed the day after the vice president made his statement was for purposes of preliminary standard compliance. Confer had further testified that he did not believe the test had any connection with this lawsuit. The evidence was relevant and admissible.

General Motors contends that had the court indicated its intention to take such judicial notice earlier, evidence attenuating the significance of the statements could have been produced. The fact remains that such avenues had not been foreclosed at the time judicial notice was taken. No subsequent attempt to diminish the impact, if any, was made nor was the court apprised of any such need of an earlier ruling.

Newspaper Publicity of the Trial During its Course

Certain articles were published in a local newspaper during the liability phase of the trial. These revealed the nature and extent of Mrs. Badorek's injuries. Prior to publication testimony had already been given by her to the effect that the Corvette had slowed to a speed of 15 to 25 miles per hour at the time of impact, the force of which was not unduly severe. Also, anyone observing her on the witness stand could not have failed to be aware of the seriousness of her injuries.

General Motors moved for a mistrial after the first of these articles was published July 21, 1967. Additionally, an affidavit was submitted by one of its investigators who had overheard a reference to the article by one of the jurors. (This juror did not participate in the deliberations of the jury. He was subsequently excused.) Following discussion in chambers, the jury was once more admonished against commenting about the case, discussing it, etc. The jury was even more fully admonished on July 28 following pubication the previous day of an article relating the testimony of plaintiffs' expert James Collins.

It may be noteworthy that newspaper publicity coverage more favorable to it (e. g., giving a greater relative speed at the moment of impact and stating the defendant Rodgers had been drunk and was imprisoned) is not mentioned by General Motors.

There was insinuation but no proof that one of General Motors' opponents was 'feeding' slanted news of the trial to newspapers. If that is so, it was reprehensible. There is no proof sustaining it. Neither is there proof that any juror participating in the decision failed to heed the court's admonition.

Trial on Damage Issue of Death Cases Against Genceral Motors Alone

After the original jury had determined liability, it also thereafter heard evidence on and returned a damage verdict for Carol Badorek in the sum of $375,000 against General Motors and Rodgers. A new jury was then selected to try the issue of damages against the defendants in the wrongful death actions (a procedure which had been agreed upon at pretrial).

On the morning of the commencement of the latter trial (before another judge) Littlefield declared in chambers and Rust affirmed that the two had reached an 'agreement' under which plaintiff was not going to proceed against Rodgers 'at this time,' but that Rust, who represented an insurer of Rodgers, Liberty Mutual Insurance Company, with policy limits of $100,000/$300,000, was going to pay its policy limits to Mrs. Badorek for her damages, $50,000 for the wrongful death of her husband, Norman Badorek, and $15,000 (later increased to $20,000) in the action involving the death of Philip Dustman--an unmarried person whose heirs were his parents. That meant that approval of the 'settlement' amount by a probate court and in a guardianship proceeding (since Mr. and Mrs. Badorek had a minor child) were also involved. Rust announced that he had agreed to waive his right to move for a new trial, also his right to appeal. The wrongful death actions, it was declared by Littlefield, were not to be dismissed against Rodgers, neither was there to be a covenant not to sue. The reason for this was stated: another insurer, Hartford, which carried the personal liability insurance with Rodgers' employer and which had refused to participate in the defense of the action might possibly be liable. Since Rust had agreed to assign to plaintiffs any interest which Rodgers had against Hartford, Littlefield did not wish to jeopardize that right by a dismissal of covenant. He was fearful that such action might also release Hartford. (Nothing in this opinion shall be construed to imply that such jeopardy would result in fact.) We have nothing before us (Hartford is not a party) from which this question could be determined. The trial court, of course, could not determine Hartford's liability either.

The necessity of required approval by two other tribunals because of pending probate and guardianship involving the minor was an additional, if minor, factor. 19

All of the foregoing information and most of that to follow comes to us via transcribed discussions in chambers between the trial court and counsel. The actual record of what transpired in the jury's presence has not been brought before this court on appeal.

Throughout the discussion in chambers General Motors repeatedly asserted that the stipulation was not valid because it was not in writing or that it was 'conditional' or that it was 'contingent.' 20 We do not so regard it.

Littlefield explained the reason why Rust's offer was attractive to his client, Carol Badorek; she was wholly without funds (excepting for small social security payments). This settlement would give her immediately $150,000 plus interest and court costs less attorneys fees and advanced actual costs. Were the litigation to be continued by both General Motors and by Rodgers several more years would elapse before this destitute client would obtain any damages whatever--either for her own injuries or for the death of her husband. Also, of course, there would be the removal of the risk of a reversal on appeal.

During the early stages of the discussion Rust removed himself from the damage trials and was not heard from again directly. Also during this period of discussion in chambers, the trial court stated it could see no reason to disclose to the jury either (1) that a settlement had been made with Rodgers, or (2) the amount of that settlement. It is well settled tort law that the jury does not apportion damages between tortfeasors. It is only concerned with fixing the total damages adequate to compensate a plaintiff for a wrong done regardless of whether there is one tortfeasor or a dozen. (2 Witkin, Summary of Cal.Law, Torts, § 17, p. 1186; and see BAJI No. 15.03 (5th ed.)--although we cannot tell whether this or a similar instruction was given since the instructions were not brought up on appeal.) In fact, the rule stated exists whether the defendant or defendants are or are not insured. (See Witkin, Cal.Evidence, Circumstantial Evidence, § 374, pp. 332-333; Hoffman v. Brandt (1966) 65 Cal.2d 549, 554, 55 Cal.Rptr. 417, 421 P.2d 425, fn. 2.) The trial court cited and discussed Cseri v. D'Amore (1965) 232 Cal.App.2d 622, 43 Cal.Rptr. 36 (hear. den.), where a plaintiff had sued two alleged tortfeasors and before trial had settled with one of them for $9,500. Defendant D'Amore, at the trial, moved that the settlement sum be disclosed to the jury with instructions for it to deduct the amount which had been paid from the amount of the verdict. The trial court denied the motion, holding that the jury was not concerned with and had no factual question to resolve respecting the settlement. The appellate court affirmed that ruling. It answered a number of California cases (including Steele v. Hash (1963) 212 Cal.App.2d 1, 27 Cal.Rptr. 853, and Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 155 P.2d 633) by stating they had only held it was not error to permit the jury to make the deduction. None of these cases involved bifurcated trials.

General Motors objected to the fact of settlement being withheld from the jury. It objected first on the mistaken ground that there was no settlement. Secondly, it argued that so much publicity had been given in the news media to the fact that a jury verdict of liability against both Rodgers and General Motors had previously been returned that the new jury would somehow believe that the court had found Rodgers was not liable were Rodgers not before the court during the wrongful death actions on the issue of damages. Its counsel argued repeatedly (under the the cases cited in Cseri, but contrary to the Supreme Court approved rule of Cseri itself) that the jury should be informed of the fact and amount of the settlement and instructed to deduct it (to the extent that it was fixed) from the amount which the jury allowed as total damages.

Finally, the court changed its ruling and acquiesced in this procedure. The means by which it was accomplished were: the jury was instructed to deduct from its verdicts the amount of the settlement in favor of the respective decedents and their estates and to state the sum remaining in each case as the verdict. This it did, fixing $236,152.76 as its net verdict in the cases of the heirs and estate of Norman Badorek, deceased, and $40,026.75 as its net verdict in the cases of the heirs and estate of Philip Dustman, deceased. In the verdict forms no defendant's name was mentioned. After the verdicts were returned, however, the court directed that judgment be entered against General Motors only.

The Legislature in 1957 (Stats.1957, ch. 1700) adopted the Releases From and Contribution Among Joint Tortfeasors statute. (Code Civ.Proc., §§ 875-880.) These sections provide in material part and in effect that where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them (§ 875, subd. (a)) to be administered in accordance with the principles of equity (§ 875, subd. (b)). Such right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof--in which case the right of contribution shall be limited to the excess (§ 875, subd. (c)). 'Pro rata' is to be determined by dividing the judgment equally among all of them (§ 876, subd. (a)). Section 877 provides for a release from such liability where a release, dismissal or covenant not to sue has been 'given in good faith before verdict or judgment to one or more of a number of tort feasors claimed to be liable for the same tort.' 21 (Italice ours.)

General Motors is not quite clear as to just what it is asking this court to do as regards the settlement. It apparently does not want it vacated since it demanded that the amount of the settlement (which presumably has been paid) be deducted by the jury from the amount of its award. The court complied with this demand and caused the jury to make that deduction. The jury did so. General Motors certainly cannot contend it should have its cake and eat it too. It now argues, however, that 'the death cases should not have proceeded against General Motors alone.' That may be answered by noting that so far as the trial court could control the matter it attempted to keep any belief that General Motors was the only tortfeasor away from the jury. It was General Motors itself which insisted that the fact of a settlement be revealed by having the jury make a mathematical deduction which the court just as readily could have made after verdict.

Next the argument is made that the trial court 'was necessarily required to determine the total value of the 'consideration' (as distinguished from simply the cash payments to plaintiffs) and deduct that amount from the judgments against General Motors.' Perhaps by that is meant that the value of the potential liability of Hartford should have been determined by the trial judge. But this claim could not possibly have been evaluated then nor can it be done now. Hartford is not a party. If that is not the contention, but it is being contended that the value of such payment by one tortfeasor to a plaintiff by earlier settlement is a benefit upon which another tortfeasor is entitled to capitalize, we do not agree. The law favors settlements. The contention is reiterated in the argument before this court that the trial court directed preparation of a written agreement signed by Rust and Littlefield expressing the terms of the settlement and that it be filed within 30 days. The court did so state. The time limit was declared to the end that it might be received before General Motors' motion for a new trial was due. It does not appear from the record before us that General Motors moved for a new trial after the actions for wrongful death. Since the terms of the settlement were repeated over and over again in open court, we perceive no value to a written agreement, signed or unsigned. If no agreement was ever executed, which seems unlikely, General Motors has been the beneficiary of a windfall in the deduction from the verdict. If plaintiff received a greater sum in settlement than that recited in court, there is no proof of the fact before this court.

However, there is a real issue created by the settlement and Rodgers' consequent absence from the damage trials, to wit: the effect of those factors upon the judgments entered at the conclusion thereof.

On those judgments General Motors Stands alone. However, General Motors and Rodgers earlier had been found jointly liable tortfeasors. Despite the absence of the joint money judgment required by Code of Civil Procedure section 875 General Motors' rights to contribution from Rodgers had effectually vested at the time joint liability was fixed, but, of course, would remain inchoate until such money judgment was filed and payment made thereunder by General Motors of more than its pro rata share. (Thornton v. Luce (1962) 209 Cal.App.2d 542, 551, 26 Cal.Rptr. 393; Augustus v. Bean (1961) 56 Cal.2d 270, 272, 14 Cal.Rptr. 641, 363 P.2d 873. The ever increasing use of the bifurcated trial should not provide an escape route for any one or more of several joint tortfeasors by means of a settlement privately executed with plaintiff. 22

The contribution statute as a whole expressly takes into consideration the situation after both liability and damages have been fixed (§ 875), as well as the situation before either have been established (§ 877). 23 Although it does not specifically mention the bifurcated trial with its possibility of a settlement being executed between plaintiff and one tortfeasor after the fixing of liability but prior to the establishment of damages, the contribution statute does not fail in that situation. The Legislature intended a comprehensive scheme of contribution between joint tortfeasors and intended that scheme to be operative in a bifurcated trial situation as well as in the conventional single trial.

Accordingly, we hold that once there has been a verdict of joint liability any money judgment subsequently entered must include all those held liable.

The judgment is reversed for the limited purposes of adding the name of Mathew Rodgers as a judgment debtor jointly and severally with General Motors and by noting the partial satisfaction to the extent of all payments made. In all other respects the judgment is affirmed. Respondents shall recover costs on appeal.

FRIEDMAN, J., and McGOLDRICK, J. Pro Tem., concurs. --------------- 1 The following were at one time party defendants: David Ramey, Phillip Carlson, Budget Rent-A-Car of San Jose and Jack Brothers. The case did not go to the jury against these defendants. All were dismissed either voluntarily or by nonsuit. 2 It was not determined at the trial how the board happened to be so located or who was responsible for its being there. 3 Mr. Ramey had seen Mrs. Badorek and later Philip Dustman when each left the car. He testified: 'Q And at the time you saw them getting out, they were on fire? A Yes. Q Okay. And was it the girl got out first and then the driver got out second? A Yes.' 4 Antone Jasich, General Motors' fire investigation expert, had examined marks on the pavement two years after the accident and had had a map drawn and photographs made of what he saw that he deemed significant. Among such marks was a 'moderate burn going towards the drain.' He added: 'As a matter of fact there is still evidence in the storm drain of carbonization * * * indicating that the fire--that the fluid was on fire and flowed * * *--after igniting in this area, flowed down and into the causeway, the lower causeway area.' Badorek was down there. Jasich testified: '[Y]ou have got to consider the gasoline going down the drain outlet, at the point near the fire, and actually raw gas, burning gas flowing down the drain outlet to the causeway below.' 5 The expert witness of General Motors who placed the point of impact 29 feet from the commencement of the skid marks and stated an opinion that the Rambler traveled 35 1/2 feet thereafter, not only disregards the eyewitness testimony to the contrary but ignores the absence of debris at that point and its presence substantially beyond. 6 The foregoing statement of facts, detailed as it may seem, is a bare outline. There is a conflict in some of the facts stated. At this state of the discussion we follow the substantial evidence rule (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785, 59 Cal.Rptr. 141, 427 P.2d 805) as a prelude to our determination of the issue of the liability of General Motors under the rule pertaining to strict liability. Later, when we consider the charges of error and misconduct which we find to exist, we will be bound to consider the entire record, including conflicts. (Aldabe v. Aldabe (1962) 209 Cal.App.2d 453, 457, 26 Cal.Rptr. 208 (hear. den.).) 7 It is pointed out by Professor Prosser that the second reason had already been stated by Justice Traynor, the author of Greenman, both before and later, in his concurring opinion in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 455, 462, 150 P.2d 436, and in Seely v. White Motor Co. (1965) 63 Cal.2d 9, 18, 45 Cal.Rptr. 17, 403 P.2d 145. (See Prosser, op. cit. pp. 19-20.) 8 The law of Indiana (which, according to Professor Prosser in 18 Hastings L.R. 9, at p. 15, note 40, had not embraced the law of strict liability in 1966) was held applicable. 9 Actions against automobile manufacturers based on negligence would 'require proof of four elements: (1) that the manufacturer owes the user a duty of due care in the design, construction, and assembly of its vehicles so that they are reasonably safe when involved in collisions, (2) that the maunfacturer breached this duty, (3) that the plaintiff was harmed, and (4) that the plaintiff's harm was in fact caused by the manufacturer's breach of duty.' (52 Cornell L. Quarterly 444, at p. 446.) We have already stated the criteria for strict liability as stated in Restatement Second of Torts, section 402 A. That doctrine subjects the manufacturer to liability for 'a defective condition unreasonably dangerous' even when 'the seller has exercised all possible care in * * * preparation.' 10 Law Review comments not cited in Dyson but criticizing the Evans rule, probably with even greater severity, are: Automobile Design Liability; Larsen v. General Motors and its Aftermath (118 Penn.L.Rev. 299) which states (on p. 307): 'Larson * * * stands as a landmark in automotive design liability refuting many of the shibboleths by which liability was previously avoided.' It cites Mickle v. Blackmon (S.C.1969) 166 S.E.2d 173--an enhanced injury case--and the Dyson case, supra. It characterizes the narrow 'intended use' theory and the nonliability-to-produce-a-crash-proof-automobile theory as 'ploys of overstating or misstating the negligence issue' (on p. 310) and prophesies in conclusion that 'the Eighth Circuit's opinion in Larsen marks the beginning of a new trend of decisions.' (P. 312.) A student writer in Products Liability--Duty of Care in Automobile Design--Fitness for Collision, 21 So.Carolina L.Rev. 451, commenting on the Mickle case, supra, and comparing the Evans case, supra, with Larsen, supra, is even more harsh on the former. Evans is characterized as 'ludicrous,' resulting in 'an absurdity,' 'a technique that is clearly out of place in judicial decisionmaking.' (Id. p. 455.) The article states (on pp. 455-456): 'Had the court dealt more honestly with the issue, it would simply have acknowledged the obvious--that a manufacturer may be required to conform to a higher but still reasonable standard of safety without incurring a duty to make products accident-proof.' 11 While the National Traffic and Motor Vehicle Safety Act of 1966 has provided that when a specific standard has been adopted no state or other political subdivision may cause it to be superseded, the Act in subdivision (d) (15 U.S.C.A., § 1392) expressly states: '* * * Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard.' 12 General Motors cites Bias v. Reed (1914) 169 Cal. 33, 145 P. 516, where, on totally different facts, it was held a directed verdict after opening statement was permissible on defendant's motion. We quote from a headnote of that case: 'The practice of directing a verdict, in advance of the introduction of evidence, upon the opening statement of one or the other party, is a dangerous one. * * * ' (See also Paul v. Layne & Bowler Corp. (1937) 9 Cal.2d 561, 564, 71 P.2d 817; Weyburn v. California Kamloops, Inc. (1962) 200 Cal.App.2d 239, 241 et seq., 19 Cal.Rptr. 357; Noble v. Cavalier Restaurant (1951) 106 Cal.App.2d 518, 524-525, 235 P.2d 396.) 13 Criticism by General Motors of Littlefield and of Rust is justified. It is only fair to state, however, that General Motors could and did play rough too. Wallace Sedgwick, its chief counsel and an experienced trial attorney, in the presence of the jury volunteered the following remark regarding General Motors' fire investigator: 'Your Honor, this man is an outstanding expert in the country on the cause, effect and what oocurs in fires.' That is not an isolated instance of appellant's own misconduct. The quoted instance is not cited to justify one party's misconduct by tarring another with equal fault. We mention this only to illustrate that this was a 'free swinging' adversary proceeding. Claims of error should be appraised in their proper setting. 14 Evidence Code section 773, subdivision (b), states: 'The cross-examination of a witness by any party whose interest is not adverse to the party calling him is subject to the same rules that are applicable to the direct examination.' The language is unfortunate. In a sense, of course, the interests of defendant Rodgers and plaintiffs are adverse but not with respect to the testimony of the witnesses mentioned. We are satisfied it was the intent of the Legislature and of the California Law Revision Commission which drafted the Evidence Code to limit the scope of answers 'adverse' to the subject matter of the inquiry of the affected witness, not the ultimate status of the parties. Evidence Code section 767 expressly excepts from the right to lead a witness on cross-examination situations 'where the interests of justice otherwise require.' 15 That testimony was available in the daily transcripts made throughout the liability trial. 16 'Limited admissibility' situations arise more frequently in criminal cases (e. g., where evidence of prior crimes is offered and the question is whether it merely shows a criminal propensity or whether there is substantial probative value to prove intent, motive, modus operandi, etc.), but it can and has arisen in civil cases also (see cases listed in Witkin, Cal.Evidence 2d, § 500, p. 471, §§ 1209, 1210, pp. 1116-1118). 17 The brief of General Motors captions other theories of relevancy as follows: Intoxication 'tended to prove that this was a highly unusual and unforeseeable rear-end collision'; it 'forcefully corroborated and logically explained General Motors' accident reconstruction'; it 'supported General Motors position that * * * [Rodgers'] actions constituted an intervening force which was a superseding cause'; it 'was important in evaluating the statements given by * * * [Rodgers] at the time of the accident and the testimony given by him at the trial.' 18 On this contention see the most pertinent statement of The Honorable Learned Hand in The T. J. Hooper (2 Cir. 1932) 60 F.2d 737, certiorari denied, Eastern Transportation Co. v. Northern Barge Corp. (1932) 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571, regarding the necessity that ocean going tugs be equipped with radio receivers, irrespective of the then idustry standard: 'Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission. [Citations.]' (P. 740.) 19 From hindsight we deem this factor to be insignificant. Under the circumstances now present, we can conceive of no possibility that a probate court (or court in the guardianship proceedings) could or would make any decision withholding approval to the recovery. 20 Although the settlement was not in writing, it was made in open court and it was in no sense contingent. Regarding it the court stated: 'It was very clear. I asked the specific question. I think I said, 'Are you going to execute a release or covenant not to sue or something else?' And the answer was, 'yes.' 'The only thing that remains is the approval of the compromise of the minor?' 'Yes.' 'And the probate?' 'Yes.' So, under those circumstances I felt very assured and I said, 'Well, then, gentlemen, all that remains is the drafting of some documents or something of that sort.'' The court specifically questioned these attorneys, asking if that were not true, and there was no dissent from the judge's statement. (Our own reading of the transcript shows that the conclusion stated by the judge was fully justified by the record.) Nor was the settlement conditional: the only condition expressed was that if General Motors were to be successful on its appeal (which--again from hindsight--we can say it has not been), the settlement figures paid by Liberty Mutual Life Insurance Company would be increased from the amounts there agreed upon to the policy limits. 21 Subdivisions (a) and (b) of section 877 provide: (a) It shall not discharge any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater; and '(b) It shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasors.' 22 To be sure, all those found jointly liable may negotiate a settlement or settlements with plaintiff after liability is found but before money damages are assessed. This accords with the policy of the law favoring settlements. 23 See discussion of the contribution statute at page 54 ante.

Summaries of

Badorek v. General Motors Corp.

Court of Appeals of California
Oct 1, 1970
12 Cal.App.3d 447 (Cal. Ct. App. 1970)
Case details for

Badorek v. General Motors Corp.

Case Details

Full title:Carol D. BADOREK, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION…

Court:Court of Appeals of California

Date published: Oct 1, 1970


12 Cal.App.3d 447 (Cal. Ct. App. 1970)
12 Cal.App.3d 447

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