Nordstrom v. White Metal Rolling and Stamping Corp.

*643 Hale, J.

(dissenting)—All Philip J. Nordstrom wanted to do was buy a stepladder. He bought one at the Fuller Paint Store, 720 North Fairview in Seattle, for $17.32, thinking he knew what he was about. Little did he know, for the ladder gave no premonitory signs, that one day, in a court of law, its buyer would be required to meet and match the combined cerebral output of representatives from Associated General Contractors of America, Association of Casualty and Surety Companies, Association of American Railroads, American Ladder Institute, American Petroleum Institute, National Association of Mutual Casualty Companies, American Federation of Labor, Congress of Industrial Organizations, the Army, United States Department of Agriculture, Bell Telephone, American Telephone and Telegraph Company, National Lumber Manufacturers Association, Metal Ladder Manufacturers Association, United States Department of Labor, Bureau of Labor Standards, and other organizations, including mechanical engineers, safety engineers and fire fighters.

Plaintiff brings this action on the theory that, when he bought the stepladder, he thought it would be reasonably safe to stand on. He now complains that, one time when he was standing on it, it buckled and threw him onto a cement floor. Defendants Fuller Paint, which sold him the ladder, and White Metal Rolling and Stamping Corporation, which manufactured it, say, inter alia, that the ladder was all right because it met the standards promulgated, approved and published by the aforementioned delegates at their conclave in New York City October 4, 1956. These American Standards Association standards apparently were promulgated in a document which appears to have been sponsored by the American Ladder Institute, American Society of Safety Engineers and the National Association of Mutual Casualty Companies. I am sure that Mr. Nord-strom has not ceased to wonder how a household stepladder could bear the weight of so heavy a sponsorship and support a householder, too.

The document, considered in evidence as defendants' exhibit No. 17, was entitled the “American Standard Safety *644 Code for Portable Metal Ladders,” and had been published by a private organization which calls itself the American Standards Association, Incorporated. Received in evidence over what I consider sound objections that it was hearsay, not the best evidence and constituted opinion evidence by means of a written document beyond the reach of cross-examination, I would add that it was palpably self-serving, too.

The ASA standards (exhibit No. 17) were offered, through the testimony of Mr. Records, a professional mechanical engineer who served as plant manager and chief engineer for defendant White Metal Rolling and Stamping Corporation at Warsaw, Indiana. He testified that his company accepted these standards and produced its ladders to meet them. He had not participated in making the standards, in adopting them, or in the conclaves which led to their adoption. Other than understanding its contents 'and accepting the standards as sound, the witness had no greater testimonial knowledge of what transpired at the New York meetings than did the court or jury. His company, he said, subscribed to and accepted the ASA standards and then built its ladders better than the minimum requirements set forth therein. All ladders produced by his company, he said, exceeded the ASA standards and would have a greater load carrying capacity and stability than ladders designed strictly according to it. He conceded the code did not have the force of law and admitted that it was, as he expresed it, no more than “A suggestive code for a basic standard for ladders,” binding on no one and prepared merely for the benefit of those engaged in the business of manufacturing ladders.

In my opinion, the ASA code amounted to little more than an endorsement of the ladder manufacturing industry, ladder merchants and representatives from selected groups presuming to speak for users of the product. Although providing useful information, this kind of sponsorship in commerce did not, in my judgment, impart such a degree of reliability to the ASA safety standards code as to warrant its admission over objection. As evidence, it was and *645 is palpable hearsay, and I see nothing in the majority opinion to remove it from that category.

The ASA code itself contains all of the insufficiencies and indicia of unreliability which should exclude it as hearsay. It says, “The code under the above title was first approved on July 25, 1923. Revisions were approved on April 11, 1935, April 2,1948, and November 10,1952,” and shows that the edition in evidence was promulgated October 4, 1956. It occurs to me that something so intrinsically reliable as to be admitted in a court on the basis that its contents express a quasi eternal verity should not have been subject to such frequent amendment.

I think it good that improvements in ladder technology are reflected in the literature on the subject, but this fails to provide, in my opinion, a basis for assuming that the literature is not hearsay. There is nothing so intrinsically trustworthy about the American Standards Code as to warrant an abrogation of the long-standing rule against hearsay evidence in general. Thus, I am in disagreement with the majority that the ASA code is compatible with Wigmore’s recommendation that private safety codes may be admissible on the basis of necessity. 5 Wigmore, Evidence § 1420 (3d ed. 1940). Here the declarant was not a person but purportedly a committee or panel of interested persons meeting to adopt a code of standards at a time nearly 10 years before trial, and in a quest for trustworthy evidence there was no greater necessity to admit the code than to exclude it.

If a ladder manufacturer or merchant wishes to call expert witnesses, he may do so, subject, of course, to the universal principle that they may be cross-examined. Here there was no declarant but rather a committee speaking through a formalized document and leaving the declarants unidentified and unresponsible for its contents. Added to this unreliability, we have the further deficiency of hearsay compounded, for the witness under whose testimony the document was offered in evidence was not present at the conclave which promulgated it.

*646 Subject to certain exceptions, hearsay is universally excluded as being incompetent evidence upon which to establish a fact (29 Am. Jur. 2d Evidence § 493 (1967)), and in those instances where an exception prevails and the hearsay is admitted, the hearsay must rest on circumstances establishing a guaranty of trustworthiness of such force as to supply the legal equivalent of the declarant’s oath. 29 Am. Jur. 2d Evidence § 496 (1967). Thus, a document and its contents may be admissible in evidence where, from its age, nature or inherent quality, and because of the declarant’s long-established independence from the offer or its verity should not be doubted, and it could not otherwise be deemed self-serving. Under this principle, such things as mortality tables, government prepared tide tables, newspaper stock market reports and journals reflecting the prices of commodities as of a given date, if of general circulation, are admissible. Meyer Bros. Drug Co. v. Callison, 120 Wash. 378 , 207 Pac. 683 (1922). But these are things in daily use and acceptance by organized society at large, and if they are untrustworthy that fact would in the ordinary course of continued usage probably emerge. However, this is not the case with a stepladder code of standards.

Even the rule that hearsay evidence may be received to establish pedigree or family relationship is hedged with the safeguard that the declarant must not be available, his statements must have been made prior to trial, and there was no motive or purpose to deceive. McCormick, Evidence § 297 (1954). And, in case of paternity dispute, the deceased parents’ statements as to paternity are admissible only if made at a time when there was no motive to deceive and clearly not in 'anticipation of litigation. Carfa v. Albright, 39 Wn.2d 697 , 237 P.2d 795 , 31 A.L.R.2d 983 (1951). The ASA standards meet none of the requirements which would warrant admission as an exception to the rule against hearsay.

Some scholars reject the broad abrogation of the rules against hearsay evidence. Professor Meisenholder, for example, says that Washington law authorizes the cross- *647 examination of experts from treatises and textbooks but insists that a foundation must first be laid showing that the witness either admits or in some other way shows that the book or treatise is authoritative. The use of textbooks “on direct is not authorized because the hearsay nature of the text is . . . apparent.” Meisenholder, 5 Wash. Prac. Evidence § 358 (1965). Significantly, nowhere in Professor Meisenholder’s discussion of the hearsay rule or exception thereto, is it stated that safety codes not having the force of law may or ought to be admitted on direct examination. See Meisenholder, 5 Wash. Prac. Evidence, chs. 20 and 30, 374, 499 (1965).

Finally, I do not read Hartman v. Port of Seattle, 63 Wn.2d 879 , 389 P.2d 669 (1964), in the same way as does the majority. That opinion, I think, on the question of the admissibility of safety codes was neither dicta, archaic nor lacking in a strong rationale. In passing directly on the admissibility of electrical workers’ safety rules not having the force of law but promulgated by the Department of Labor and Industries of this state, this court declared what it considered to be the majority rule, stating, at 886:

We believe the ruling of the trial court was correct. The general rule is stated by the author in 75 A.L.R. (2d) 778 at 780:

“The majority rule is that evidence of codes or standards of safety issued by governmental bodies as advisory material, but not having the force of law, is not admissible on the issue of negligence, . . .”

So-called standards which do not have the force of law are nothing more than the unsworn opinions of their authors and the authors are not subject to cross-examination. Even the opinions of the authors may change after their rules are written. Mississippi Power & Light Co. v. Whitescarver, 68 F. (2d) 928 (5th Cir. 1934). Cf. Grant v. Libby, McNeill & Libby, 160 Wash. 138 , 295 Pac. 139 (1931); Hanson v. Columbia & Puget Sound R. Co., 75 Wash. 342 , 134 Pac. 1058 (1913).

The holding in Vogel v. Alaska S.S. Co., 69 Wn.2d 497 , 419 P.2d 141 (1966), based as it was on Provenza v. American Export Lines, Inc., 324 F.2d 660 (4th Cir. 1963), cert. *648 denied, 376 U.S. 952 , 11 L. Ed. 2d 971 , 84 Sup. Ct. 970 (1964), in which, excerpts from the “Safety and Health Regulations for Longshoring” promulgated by the Secretary of Labor pursuant to 33 U.S.C. 941, et seq., were admited in evidence, in my view constitutes authority for rejecting the ASA code before us. That case, in my view, supports the proposition that, although safety standards and codes having the effect of law or promulgated by a governmental agency having jurisdiction in the industry, business or calling under regulation are admissible in evidence, such codes or standards are not admissible if emanating from a nongovernmental source.

The reasons supporting the admission of governmental codes and standards 'and rejecting private ones is that the intrinsic qualities of trustworthiness mentioned by the majority may be said to inhere in the former and are wanting in the latter. But parenthetically, it should be noted that in some jurisdictions even governmental codes are not admissible. 29 Am. Jur. 2d Evidence § 891 (1967). See Annot., 75 A.L.R.2d 778 (1961).

I would, therefore, reverse on the grounds that the ASA code was erroneously considered in evidence and that, as evidence, it was of sufficient importance and weight to and probably did affect the result of the trial.

Hunter, C. J., and Neill, J., concur with Hale, J.