*1 Dist, No. Second Five. Apr. 37672. Div. [Civ. 1972.] KASEL,
EDWARD W. Plaintiff Appellant, COMPANY, INC.,
REMINGTON ARMS Defendant and Respondent.
Counsel Fink, for Plaintiff Ap- Max James R. Bramble and R. Duke Stephen pellant. *6 Marshall for Defend- McNicholas and Wenzel & William Morgan
Morgan, ant and Respondent.
Opinion verdict for REPPY, This is from a J. an on appeal jury judgment Inc., a Delaware Arms defendant and respondent, Company, (hereinafter, its home office in Connecticut corporation, Remington), having (hereinafter, W. Kasel and Edward plaintiff), and plaintiff appellant against of the injuries explosion action and out for personal damages arising an of a shell. 12-gauge shotgun
I. Statement of Facts
A. Injury and Source Shell Plaintiffs of Defective California,
In late left Los January Navojoa, 1965 plaintiff Angeles, Mexico, on a with two He carried hunting trip along companions. his four Ex- 12-gauge him boxes Remington shotgun ammunition, press that the amount of Mexico being ammunition which allowed hunters to the country. into bring California,
Plaintiff’s while still in had for the party, arranged purchase Sonora, of more ammunition from a The shotgun Mr. Mexico. McElroy was there. The purchase shells were On completed Remington Express.1 evidence, we but that an conflicting weighted way, finding, implied disturb, cannot was made that these shells were manufactured in Mexico. 30, 1965, January On went was plaintiff’s hunting, plaintiff party the shells using in Mexico.2 Toward the end of the purchased day, plain- back, tiff that it was time to suggested but his friends that go urged they continue shooting for more As minutes. shot in this closing plaintiff hunt, of the period his His hand was gun exploded. right badly injured by the blast.
An witness testified that in expert his explosion gun opinion had been the result of excessive which had resulted an ex- pressure cessive charge shell fired Evidence powder shotgun by planitiff. was contrary so that it must be that insignificant the shell accepted
was defective. There is no basis for an argument jury’s general verdict based on an was not finding shell defective. implied B. Remington’s Relationship to the Shell Defective defective shell had which caused the been manu- injury plaintiff Mexico,
factured in Mexico called Cartuchos De by company Deportivos (hereinafter, CDM). S.A. The evidence the record indicates that Reming- created, ton had caused CDM was affiliated with CDM through the outstand- Remington’s ownership percent stock ing interlocking common of CDM the existence of common (see Cal.Jur.2d, use of interchangeable Corporations, p. § terms) directors and officers. from the Particulars record pertinent under review follow: problems *7 Barth, acting 1It appears party, that for the made as to inquiry who was Sonora,
Remington Remington dealer McElroy in Mexico. was a dealer. record, likely 2Under of the circumstances it most so all disclosed in the by shells plaintiff much of these as were taken would him first be used in Mexico specific hunting any on the and then left over in California where he resided. trip an in became interested creating In of Remington operators license, in Mexico. affiliate to under ammunition Remington produce, in forming business interests local They motivating assisting projected con- also factory They a to and run a there. Mexican build corporation Rem- Harmon, Jr., an (Harmon), employee B. Howard templated for the Mexican Connecticut, in would be the director of ington operations and a of CDM’s board plant member of.directors. In furtherance of its plans
CDM was in November 1961. organized to the manu- with CDM relating entered into three Remington agreements ammunition trademarks: facture and Remington’s under marketing Informa- Trademark License Contract for Sale of Technical Agreement, tion, and Technical Services Contract.
Pursuant to the License Agreement, Remington granted Trademark nonexclusive, use Remington’s CDM a license to nontransferable 20-year CDM. Under registered trademarks on manufactured ammunition its had to use of trademarks agreement right Remington approve ammunition, Rem- on advertising. packages, any ammuntion of all also had the to and control ington ammuni- right quality inspect exchange, were used.3 In CDM to agreed tion on which its trademarks pay sales Mexico. a of 0.5 on all net of CDM within Remington royalty percent Information The Contract for the Sale of Technical provided manufacture of sale relating scientific Remington’s processes $100,000. CDM to insert sum. of A condition ammunition required trademarks, words, on in to all shell addition Remington’s packages, Arms “Manufactured Mexico contract Remington Company, under (CDM Inc.” the insertion in Spanish.) made to itself Remington obligated
Under the Technical Services Contract CDM, and to to train CDM Connecticut provide personnel personnel advisor, ad- and a sales director of production including operations, on also assistance and consultation agreed visor. Remington provide machines, and on marketing procurement production techniques laborator- testing Remington’s raw materials perform equipment ies, was to receive on ballistics. In Remington and to advise exchange, may part, toward assurance that none of the pointed, 3This have been well someone, injure a result which manufactured would be defective and posed little likelihood reputation would tarnish the even if it liability on its part. Incidentally, although Agreement gave Remington this the Trademark License CDM, right quality to exercise controls over the of ammunition manufactured right except apparently did not to test one batch of shells exercise May 1965 and another six months later. batch *8 fee of net 1.5 on all sales for the term of the contract of CDM percent (20 years).
Before and after of execution the aforementioned agreements Reming- ton financed facilities CDM. June 1961 substantially Remington at In $160,400 commenced this CDM purchasing in sponsoring program by It stock. increased its stock CDM additional common in ownership pur- $269,280 $113,067 1961, chases in amounting February in August $273,899 $16,972 $48,960 October August trial, 120,000 December at held shares of CDM 1966. time of Remington, 300,000 out of shares Because of this stock owner- outstanding. percent characterized as its CDM affiliate. Besides ship having acquired stock, $408,327 also issued Remington CDM bonds in Janu- purchased $125,701 ary of which was and the balance converted into repaid new bonds in 1967. February
Three Mexican had nationals sent to Connecticut been Remington’s plant training 1961. returned to CDM sometime in They 1962.
Mexican nationals constituted the work force of general plant. 30, 1965, accident,
As of the date January a Mexican plaintiff’s was the national chief executive officer CDM. of CDM was Management in the hands of its board of directors. It consisted of 10 members regular and 9 alternates. Four of the regular members were Remington officials from the United States. One of the was such a alternate directors Reming- official, and director, ton national, another alternate a Mexican was a member of the law firm represented Mexico. CDM had four officers two who were also officers of including Remington.
two additional officers were Mexican nationals.
Harmon, as director of on was CDM’s from 1961 operations, payroll until However, June when he left his Mexico. he home in Con- kept necticut; he the continued enjoyed his retirement protection insurance; fund and and he received a bonus from while group CDM, he was in Mexico. he While worked for directly Harmon reported vice-president Remington. Much was installed in the Mexican heavy working equipment plant and delivered All the for the ma- procured Remington. specifications at the used CDM were at chinery Remington’s Connecticut developed plant plant. established,
While the CDM 18 Remington plant getting employees were sent down Mexico the Technical Contract pursuant to Services assist CDM in the and sales establishment manufacturing operations. *9 in cases to a month from few some days
They stayed periods varying others, in to four and one-half in the case Harmon. years
CDM started shells in June 1963. producing Remington Products C. or Use Circumstances Purchase Influencive of Mexico in in boxes the shells
Plaintiff introduced evidence several purchased and the words there. The boxes are red and contain “Remington” green side in white on the front and side “Remington panels script. Express” bearing in and gold also contain a of a shell picture shotgun green panels words, of the white. All the rest again, “Extra in Long Range,” printing also one of shells on the box is Plaintiff introduced in Spanish. its on in The shell is There boxes Mexico. purchased green. stamped words, 12 Ga.” Plain- “Remington base the Express brass combination tiff certain differences compo- stresses certain similarities and Remington do not American We sition and of Mexican product. design to a that either circumstance is of great proper disposi- feel consequence However, might we do wherein the similarities tion of this case. later note have some trial had court. significance extensive An advertising campaign.4 ample an
Remington engaged maga- carried on in was in California. Much of was centered proportion addition, distributed through In annual was Remington’s catalogue zines.5 11,000 12,000 in California. the United States with throughout dealers Also, (15,000 there were distributed in 1966 for example) pic- circulars this all of dealers. The matter of torial signs displayed by subject ammunition. shotgun Expendi- included advertising Remington “Express” Remington’s hundred dollars That annually. tures were several thousand the countries wherein was international reflected coverage scope existed or was for.6 Remington prod- of its trademark registration applied aspect brought interrogatories answers proof 4This out in were received evidence exhibits. Ammo, Journal, Rifleman, 5Magazines Guns and listed were: American Farm Mechanics, Journal, Illustrated, Field Popular Argosy, Camping Mechanix and Trade Science, Stream, World, Life, Hunting, Sports Popular Guns & Gun Outdoor Afield, and True. Canada, Bolivia, Australia, Austria, Brazil, 6Argentina, Belgian Congo, Belgium, China, Colombia, Rica, Curacao-, Denmark, Chile, Cuba, Re Costa Dominican Greece, Guatemala, Ecuador, France, public, Haiti, Honduras, Britain, Egypt, Germany, Great Kuwait, Korea, India, Indonesia, Iran, Israel, Jamaica, Italy, Japan, Panama, Zealand, Pakistan, Liberia, Malaya, Nicaragua, Norway, Netherlands. New Peru, Rico, Salvador, Paraguay, Philippine Portugal, Singapore, Republic, Puerto Africa, Sweden, Switzerland, Thailand, Turkey, Nam, Spain, South Viet South Uruguay, and Venezuela. nets It were sold all these countries two is inferable exceptions. its international would known become aspect through circulars and advertisements.
catalogues, *10 did a was business in California. Plaintiff and Remington large acquired a and other Remington was a consumer of using Remington shotgun products. Proceedings
II. at The Trial made a in the case and raised Remington objec- no general appearance tion to the court. of “forum” the Pursuant jurisdiction stipulation counsel, the trial was divided into session the two first was for phases. determine, court purpose of the trial without a whether Mexi- having jury, effect, can or California law In it was was that Mexi- applicable. stipulated law did not can was Evidence8 recognize theory liability.7 products received that Mexican law did not for and showing suffer- compensate pain cases, in that ing counsel for stated he had no personal injury plaintiff basis for Mexico. court such The trial decided that law recovery California would be Counsel for made the commit- then applied. plaintiff ment was that he on out (ruling going proceed products liability negli- and the gence), for advised the trial court that this was attorney with him. satisfactory evidence,
After the offered numerous submission of plaintiff special jury which were instructions all refused trial court. In related to by they part different theories California law for strict plaintiff’s liability imposing tort as “an integral overall part mar- producing keting of the defective enterprise product” court, motion,
The trial on its that own instructed the the law as to jury in tort would to the case if (1) found: that liability apply jury shell in was manufactured actually the United question by City 7A on Mexican brief law issued a Mexico law firm and submitted Remington’s attorney was in file and plaintiff before the trial Counsel court. for stipulated correctly it that stated the law. He further stated it was that his under standing plaintiff right recovery had no in Mexico on what is prod called liability agreed ucts in California. The trial court appraisal. that Counsel for Remington stipulated “that way is the brief brief] that reads.” The was [the received in I sets evidence. In that provides out Civil Code of the State of Sonora recovery “physical” for “moral” “acts areas occasioned in violation of care”; accepted implication law or the that standards of “there no that such wrongful person causing are derived acts from contract entered into between the damages injured person.” pro and the In different articles of the Code Sonora Civil recovery “property profits” vision made for expected loss or losses of for contract violations. The inference concept. Sonora no brief is that had brief 8The same referred to in 7. footnote Mexico, CDM
States; that, was (2) or the shell manufactured although of it. was in manufacture agent Remington’s verdict for on the returned verdict Remington. Judgment The jury entered. for trial that it was error asserting for a new trial
Plaintiff moved any plaintiff’s court to have refused to the jury requested special give error the trial court have in- instructions and that it was further on a that was conditional Remington’s premise structed jury shell, it was on the actual manufacturer of defective premise CDM, manufacturer, was as actual agent Remington. acting *11 of the on the verdict favor Plaintiff from in appeals Reming- judgment ton,9 the it his dissatisfaction is the outcome of only clear that making the has filed an as either of Remington second not appeal phase phase. the court committed trial. that trial plaintiff urges prejudicial On appeal in the it for new error had at the motion trial. argued respects
III. Discussion Liability A. Issue Products fact,10
After to aid the in a of finding, instructions giving jury question or trial instruc- gave whether not there was court agency, following tion: I will case if you
“The instruction am about this you apply give find one of two to be true: statements following
“1. That the shell in was manufactured the defendant Rem- question States; in the United ington
“or in Mexico “2. That the shell in was manufactured [CDM] question of in . the manufacturing further . . Remington agent [CDM] the shell.” Remington Com 9Appellant actually appealed verdict favor of Arms from “the in Inc., 1970,. Judgment Page 27.” We construe pany, July on Book entered judgment is a copy appeal judgment an as so A to be entered. Weis, (See part appeal. Cal.App.2d [217 on Robins of the record 156].) P.2d agency were law which offered several instructions on the 10Plaintiif himself concluded that this circumstance and
refused the trial court. We have considered offered error. instructions were plaintiff’s action did not constitute invited Plaintiff’s jury’s consideration its intention to limit the trial court indicated because agency. finding of either actual manufacture (Products The court then BAJI11 instruction gave Liability— No. 9.00 Tort). Strict Liability hable in mind three bases for
Having finding Remington strictly possible tort of the defective (i.e., 1. that was the actual manufacturer Remington shell; but acted as 2. that CDM was the actual manufacturer Remington’s and 3. that was an agent; integral enterprise court, commerce), the defective shell the stream of the trial placed effect, found an as matter of law that was not integral part thus submitted the actual manufacture enterprise questions agency jury.12
It is our that the trial court erred in limiting appli .opinion cation of strict in tort to factual of either actual manufac finding ture or an between CDM and by Remington agency Reming relationship ton. The evidence of was un involvement in Remington’s “enterprise” contradicted and was sufficient so that the trial court should have found as a matter of law13 was an integral part composite business defective shell in the stream of com enterprise placed merce, and should have instructed the that would be liable jurors strictly if (1) found: that the shell had been market cir they on the under placed *12 cumstances wherein it was known that it would be used without inspection defects, (2) which, for was caused a defect unbeknown to injury use, (3) made it for that plaintiff, its intended unreasonably dangerous it was used for the for which it was being purpose designed.14 11 ed.) 9.00, Jury (5th California Instructions Civil page rev. No. 275. effect, holding it was 12In the trial court as the manufacturer or agent as the principal of an could manufacturer be considered enterprise placed shotgun Clearly, the defective shell in the stream of commerce. at point accepting trial court was the stream of commerce involved as and, originating undoubtedly, mostly continuing in Mexico as in Mexico. any joinder 13We have not found decision party’s wherein the issue of a the responsible enterprise put jury to a under instructions from the court. In examined,
many pertinent facts that issue were not more settled nor con vincing than those in the instant case. 9.00, 14Paraphrased among from BAJI No. the comment to which au cites other Products, Inc., Cal.Rptr. thorities: Greenman v. Yuba Power 57 59 Cal.2d [27 1049]; Co., 377 P.2d Cal.Rptr. 13 256 A.L.R.3d Vandermark v. Ford Motor 61 Cal.2d [37 Torts, 168]; Witkin, (7th ed.) Summary 391 P.2d of California Law 672-684; 1967); (3d ed.) pages (Supp. sections 388-A—388-O Prosser on Torts 9; Prosser, Liability California, (1966) Hastings Strict to the Consumer in 18 L.J. Co., 493]; Norton Restatement Cal.App.2d Cal.Rptr.
McCurter v.
263
402
Second
[69
Torts,
Corp.,
i);
(com.
724
courts,
the forefront of the
prod
long
development
for
law,
strict tort liability
uct
have
rule
adopted
places
and marketing enterprise
defective
the overall
products
producing
commerce.
in the stream of
such
responsible
placing
products
manufacturer,
entities besides the
obviously
principal
following
one,
enter
have
be
particular
been found to
integral components
on the market:
defective
alleged
prise responsible
placing
Co.,
Equipment Rental
274
(McClaflin
Bayshore
Cal.App.2d
lessor
v.
Co.,
v.
Oil
2 Cal.3d
and Price
Shell
446
Cal.Rptr.
[stepladder]
[79
337]
truck]); a
178, 466
[gasoline
developer
245
P.2d
Cal.Rptr.
[85
722]
Homes, Inc.,
v. Eichler
224
(Kriegler
Cal.Rptr. 749]
269 Cal.App.2d
[74
homes15]); a licensee
mass tract
builder
engaged
development
[a
Halsett,
v.
(Garcia
3
launderette
319
Cal.Rptr. 420] [a
Cal.App.3d
[82
have
the use of a
machine to plain
owner who was said to
licensed
washing
Co., supra,
Ford
limited to note that engages of a lender . . . .” scope it the of the activities where acts “outside arising dynamite explosion, a the cause of which was is an action 16Canifax large dynamite Defendant Hercules was manufacturer traced to a defective fuse. actually dynamite jobber supplied took an order for and fuses from a who who them to the customer. The however, fuses, by Coast Manu were manufactured facturing jobber. shipped directly Coast to The court still found Hercules the Torts, f, enterprise, quoting as Restatement Second of liable comment described, 402A, “Thus, stating, operations with the of Hercules section delegate to undoubtedly be included within The fact that it chooses should the rule. ship fuse it causes the manufacturer to the manufacture of the to another liability.” product directly escape to avoid the the consumer cannot be an hatch to 52.) (P. which strict cited and we have found none Plaintiff has no cases apply franchisor, as in the in tort to a trademark licensor liability upward and CDM were between instant case. the Although agreements because not labeled franchise agreements, analogy pertinent back technical know-how are the of trademarks and the sale of licensing a Franchisor Acts (Liability bone most franchising operations. Franchisee, 144.) However, as as the long 41 So.Cal.L.Rev. a link in the
franchisor or trademark licensor can be said to be marketing commerce, a defective within the stream of enterprise placed product strict in tort to such there is no reason in to refusing apply liability logic an entity.17 stream-of-commerce
The above listed cases have stressed that under the member of to strict no liability legal relationship approach precise the defect to the member most causing to manufactured or enterprise the courts will connected with customer is before closely required connection, for his strict It is the defendant’s liability. impose participatory benefit, or other with the and with personal injury-producing product profit and reliance created consumer demand for enterprise (and not the (such defendant’s product legal agency) relationship the manufacturer or other entities involved in the manufacturing-marketing Halsett, (Garcia which calls for of strict system) liability. imposition 325): supra, (at “The wherein the court stated p. Cal.App.3d precise between the has not legal signifi relationship parties particularly played cant role in the cases imposing liability.”) California has
Also utilized of commerce enterprise-stream liability the strict field without for the individual defend- regard concept control, ant’s control over cause of defect in product, although such exists, if it would remain a factor. In Vandermark v. Ford Motor significant Licensors, entitled, Liability 17In'an article Tort Trademark Iowa Law Review argues products liability the author for an extension of to include trademark licensors, concluding, products is “The rationale should be extended to the manufacturers, producers, licensors of It trademarks. inconsistent hold supply respect in the line of to a standard the public, others of care with and at permit escape responsibility by entering same time the trademark owner agreement. a license If product, the mark owner were to utilize the mark on his own products liability injured provide the traditional theories of would consumer with remedy. *14 important product The that the trademark is an facts factor in consumer great quality and that mark owner has a influence on the of the selection final changed changed product licensing agreement. are not All that is the mark duty respect products.” to the article public owner’s to those And an Franchisee, Liability University of San entitled A Franchisor's the Torts his for Stuart, 118, 134, author, opines, page Law Review at John F. “Products Francisco Franchising’s very put liability naturally system. purpose is to fits into the franchise Thus, franchisor’s products depending into ‘stream commerce’. recovery.” liability significant be a vehicle of product, to the strict can relation Co., Ford, a defective 256, the retailer of supra, 61 Cal. 2d Bell Maywood automobile, against to actions strict in tort that argued applied manufacturers are engaged The court stated: “Retailers like manufacturers. are an the business of distributing They integral part goods public. cost that should bear the of the overall and marketing enterprise producing (P. 262.) Barth v. B. F. defective In injuries resulting products.” Co., Whitelaw, & supra, Perry Goodrich Tire 265 Cal.App.2d liable in and retail Goodrich tires was held strictly wholesale distributor for tire in tort it neither manufactured nor sold the defective although question, (the benefited from Goodrich’s that distributor servicing emphasizing manufacturer’s) national accounts.18 Corp., Hearst Hanberry that this court in
We recognize Cal.App 173], A.L.R.3d refused to .2d 687-688 apply [81 Cal.Rptr. endorser; of that in tort to a however the rationale product Hearst, (1) magazine, decision was as of Good publisher that Housekeeping for or manufacturing supplying not involved directly prod not and ucts to the and was a part manufacturing consuming public shoe, Hearst, that (2) that supplying enterprise produced defective control over the The such lacked rationale any manufacturing process. Hanberry (The not in the instant case. ration applicable Hanberry warrant in the of the articles here light ale of reevaluation may it can be established defendant tofore cited. Where its avowed was the inducement for the we see responsible purchase testing by plaintiff, Appeal verted form him that the tires could be it of tire installation for the indicating that the tires had been ordered accounts, ing enterprise Goodrich distributor instructed rich to office butor, indicated that the tires were sold to Goodrich and were to be delivered to American actual sale of the tires American turn, for business and after, Perry 18In transaction charged warranty. billed notifying evidence, however, question Biltmore. Barth, supra, minor fee of disagreed. furnish like tire. In fee, Perry Biltmore, & Whitelaw to Biltmore. American, jurors as well as a credit was removed from replacement them ... personal Goodrich tires.” addition, Perry “Perry [11] & Whitelaw benefited from Perry $4.13 and he plaintiff and Whitelaw received a credit from Goodrich for the and allowed Clearly, installed needed plaintiff in addition to its other retail & Whitelaw indicates Perry use. His they picked up tires, then received a draw realized no had to find that Perry & Whitelaw sent this two the tires for the had been & (P. and in 1961 Perry that its role was not that minor. As Perry employer before Whitelaw new tires argues merely at & tires removed from its Perry & Whitelaw’s stock Whitelaw & Whitelaw a from mid-western B. F. Goodrich distri from stock. the court’s they profit given had an & Whitelaw in San stamped for the vehicle. He received a a its plaintiff could a car on the Perry was a order from Biltmore arrangement italics.) invoice installed the tires in servicing service its name on the wrote his & Perry transaction. The uncontro held his Whitelaw wholesale business. The stock. tires, employer, & liable. The Court charge Goodrich’s national the overall market Whitelaw’s invoice Goodrich, with B. Francisco'. employer’s The trial court had made an an besides, authorized American, informing Goodrich F. handling question who- in cost to There Good home reply *15 in the instrument necessary was not a to that defendant no reason hold commerce.) stream had recently relatively Remington
At the times of plaintiff’s injury, its own aggrandizement. of CDM for in the instrumental organization been its from the course, advantages operations was enjoying Remington, could in the Remington Besides the reserved royalties agreements, protegé. but also in in Mexico of its not only further
anticipate exposure products have consumers who to California United States particularly respect in or motivating to Mexico. In hunting participating access in ready machinery specifi CDM with in ganizational supplying procedures, control ammunition, right in reserving for the manufacture of cations trade which its CDM upon of ammunition manufactured the quality in financing, supervising plant was to be setting up mark placed,19 boards of Mexico, of the common members maintaining in in respective trademarks directors, under its advertising and in broadly products some Remington would have fostered the CDM degree, which enterprise the defective shell had more involvement produced enterprise the courts retailer, distributor or wholesaler whom than typical have had no trouble strict liability. imposing California, that because of international seems to
Remington argue stream- entrenched should not use its otherwise enterprisal complications, of the of-commerce when the manufacturer component enterprise concept (individual or when the is a citizen of a foreign country corporate) is within the stream-of-commerce involved almost boundaries entirely the foreign country. believe, has that there as argued,
Although temptation as it be field of strict liability the international is to dealt with in the aspect and federal exists in and that the stream-of-commerce foreign call for a new limitation on the features might applicability policy doctrine, us that this more careful has convinced analysis problem properly laws and is to be resolved on conflict of rests the “choice of law” area court, wherein a conflicts issue hap- Once California facing principles. have foreign of American country policy foreign aspects
penings the choice of an- not influencive of and have been found been considered (see later law, law the one to determines its own apply other proper that those reason it should rule discussion), there seems no good why stream- constitute a limitation on its enterprise same factors should special event, we area. In in the any of-commerce policy may operated have CDM trademark under which 19The fact Remington’s position not in Mexico does weaken been one that obtained enterprise. so-called *16 728 not suffi-
feel that the these factors are by contingencies allegedly presaged close in effect of a ciently or deleterious to warrant the as promulgation spe- field. on California’s well set course in the cial limitation Moreover, where, here, effect of the and the activity advertising of commerce” tends to create a demand Californians hunt- “local stream article, in Mexico for the the international con- ing foreign produced policy fails of conviction. cept manufactured, facts that the defective was shell sold
Remington-stressed Mexico, and used and that activities in Remington’s promotional Mexico of CDM were a of United States productive operations part foreign should be considered in the contacts between policy Mexico balancing California' as has of the determination regarding jurisdiction case, the more interest in the or if fed- significant possibly determining eral law should be used because of the dominance of the foreign policy feature, akin to the theory.20 preemption
B. Law Choice Issue mentioned, the trial below was
As so trial arranged stages court, without a first determine whether Mexican or sitting jury, might case, California law should California for plaintiff contending apply Mexican law. The trial court determined California law should apply.
Plaintiff asserts that because failed to appeal, However, to choice of law is final. under the adjudication respect 906,21 of Code of Civil Procedure section we the trial authority review may court’s decision that California law should determine order to apply whether was or was not the trial court’s prejudiced by plaintiff questioned Horstmann, (Mott v. 388, 11]; instruction. 36 Auer Cal.2d 393 P.2d [224 Frank, 684, 1108]; 8 A.L.R.3d Cal.App.2d Cal.Rptr. [38 District, Manufacturing Supervisors, Central Inc. v. Board 176 Cal.App. 733].) Plaintiff, course, 2d would not be preju [1 Cal.Rptr. diced erroneous instruction rela- agency finding an requiring 20Remington sought never removal to the federal courts. 21Code of Civil Procedure section derived from former Code of Civil Pro cedure provides part: respondent, party section “The favor the or in whose
judgment given, may, judgment, was without appealing request such re from viewing may any foregoing to and it deci court review matters verdict or [the any ruling, proceeding, sion and order or decision which involves the intermediate necessarily judgment merits appealed affects the or order from or which substan tially rights including, judgment, any party, any affects the on appeal determining purpose order on motion for a new whether or not the trial] appellant prejudiced appellant] the error or which he relies errors [the judgment appeal is taken.” for reversal or modification of the from which the could ap- between and CDM before tionship determine that the court if we should improperly applied plied *17 that Mex- so because it was all concerned agreed by This is law. practically tort, let alone the stream- ico does not recognize enterprisal rule, which for had limited his claim. of-commerce to basis liability plaintiff alternate argument we consider Remington’s will Accordingly, the law that California the court erred in its decision applied that trial facts case. The determination of issues raised this pertinent need only set forth. We made this have been ruling already the trial court the trial court received opinion advert to the fact that the expert again and Mexican law does not pain a Mexican that attorney compensate Mexican law no re it was in effect gives and that suffering stipulated that as we were We also remind under a covery liability theory. in the liability finder’s resolution of conflicts
bound the fact material by case, we are to view the circumstances in light of this obligated phase in, this most favorable to the trial court’s the choice of law phase ruling case. have evolved the determination of
A number of modern theories well and considered a lead choice of law issues. are summarized They Law in Products (Kühne, 60 California Choice article Law Review Liability, 1). (1) “The Jurisdiction-Select- 60 Cal.L.Rev. are: Briefly, they factors as of manufac- ing Method” such single connecting involving place ture, sale, (P. 12.) (2) and residence. “The injury Center-of-Gravity Ap- “The (P. 13.) (3) of contacts. Governmental- entailing proach” counting Interest the ascertainment of interest involving Approach,” laws. have in their own substantive competing jurisdictions might applying 16.) some, (P. are considered as involved For the interests of parties in this this we discuss it more theory. embraces so will concept, (4) hereafter. “The thoroughly Most-Significant Relationship Approach.” (P. 20.) This is rule Second of Restatement Conflicts of adopted Law, This is based on contacts which are to noting section 145.22 theory to their relative with to the according be evaluated importance respect par- “(1) rights text and parties 22The Restatement is as follows: liabilities of the which, respect to an issue in tort are determined the local law of the state with issue, respect significant relationship to with to that has the most the occurrence and (2) parties principles under the stated in section 6. Contacts to be taken into H applying principles applicable section 6 to law account in determine the an occurred, (b) (a) injury place where the where the place issue include: conduct occurred, domicile, residence, causing (c) nationality, place injury (d) incorporation parties, place where the place of relationship, of business of the any, to>be parties if between the is centered. These contacts are evalu according respect particular importance ated to their relative issue.” (5) (P.23.) ticular issue. “Cavers’ This Principles-of-Preference Approach.” recognizes three of clashes between approach types varying competing jur- isdictions to them five is the con- This principles applies preference. which makes distinctions between true and (6) false conflicts.23 “Lef- cept lar’s Better (P. 25.) Law The author out that not Approach.” points the various courts using forum have considered unexpectedly theory their own law (P. 26.) to be the better law. This he has been system, says, bound, characterized an attribute which the doctrine “is plaintiff-biased, (P. 27.) its (7) to reflect . . . .” must now very What be con- purpose, sidered the latest Leflar theory, by the pointed espoused *18 Review, author in the California Law is “the law most favorable to the (P. 30.) One of the is: of this plaintiff.” pillars supporting concept “[T]he policy the substantive law of underlying products liability-consumer pro- tection—has be to full in the choice of law . . . given weight process. an alternative reference rule for the Accordingly, of the calling application law most favorable to the chosen from the laws of the of plaintiff, places manufacture, sale, of (P. 38.) of would be injury, How- appropriate.” ever, the author out that his thesis “does not to a points supply purport final solution to all law choice of problems involving products liability.” 32); and he (p. concludes that his rule “coincides with the rationale that area, often underlies decisions in this and once judicial this basis is gener- further will ally refinements follow as in the accepted, development 38.) Therefore, that, other new (P. we are not alarmed principles.” of his one of the mentioned selected standpoint theory, not places govern.
It is that we adhere to the conflicts proper set our policy Supreme Court. At time the same it is not that we borrow non- improper pertinent conflicting from other theories. concepts indicated,
As California’s to conflicts has approach problems been is, characterized as the “governmental interest” That approach. courts of this state have attention to given the actual interests of the special concerned states resolution of the issue particular presented formula, court. In terms of Restatement in California is emphasis on the (see 22) last sentence of the Restatement formula fn. rather than on a mere mechanical In Reich Pur contacts. v. balancing cell, 551, Cal.2d 31, 67 553 727], 432 P.2d the California Cal.Rptr. [63 Court stated the to a Supreme conflicts approach proper problem multi-state tort as follows: “In a situation multi-state complex involving 23In the instant case it can be said that clash between Mexican law and Cali governing fornia principles disposition law plaintiff’s for the is a claim false to Mexican law for the illogical conflict because it is use disposition of a suit between litigants. two United States
731 exclusively be contacts, however, can deemed to create no state alone single search to- find the The forum must rights. proper governing [Citations.] litigants and the involved interests based law apply course, to a state added.) This (Italics concept, applicable states.” v. (Tramontana our versus a entity country. country political foreign Grandense, F.2d 468 A. Aerea Rio Empresa [121 S. De Viacao 338].) App.D.C. forum was the that California undisputed
It should be emphasized law. its own a definite interest action. The forum has in applying is a forum, if there The law of the “will compelling displaced de reason so.” It is unless either plaintiff for doing “applicable would such contact as been forced a forum devoid of any fendant has into (1962) Conflict of Laws its own law.” justify Ehrenzweig, application Comp. 213, Thus, Travelers Ins. Co. Workmen's 555. section page Bd., App. 434 P.2d (ques Cal.2d 11-12 Cal.Rptr. [64 992] Bd., LeVesque App. Comp. tioned v. Workmen’s Cal.3d [83 here), court 432], 463 P.2d on a Cal.Rptr. point inapplicable stated, mechanical solutions “California has traditional rejected *19 it is law when foreign only appropri choice-of-law problems adopted in the case. The signifi ate in interests significant light particular nature the directly varies with the cance of extra-state elements of forum’s Fowler, 55 Bernkrant v. given (Italics added.) (See case.” also: interest in 906]; v. Schim Cal.2d 596 360 P.2d Schneider Cal.Rptr. [12 mels, 273]; v. Wilshire 256 373 Cal.App.2d Cal.Rptr. [64 Ramirez Co., 895].) Ins. Cal.App.3d Cal.Rptr. [91 are relevant contacts
Under the interest governmental approach the of analysis not but are with the examined in connection disregarded, issues, the of the tort and interests of involved states-in the the character the relevant of the tort rules under consideration. purposes was in case limited plaintiff,
The basis for the instant by recovery satisfaction, sets confines tort. This the to strict in Remington’s the in contacts of features of the The significant important inquiry. of volved are as follows: California is residence jurisdictions plain business and in which It of the states in which does Remington tiff. is one of is the state of Remington advertises its Delaware quality products.24 expected, by Remington, 24It that of could have been in fact was desired residents Remington fa purchase would ammunition in Mexico based on their California through through miliarity tising, product exposure to- adver with the States use at United similarity by they and that would be attracted thereto least packaging and Mexican appearance and their between the American shells dealing impressed was those similarities product. trial court entitled The issue. choice law the state of Reming Connecticut Remington, incorporation manufacture, ton’s ultimate of business.25 Mexico is the principal place place purc How use of and the defective shell. hase,26 injury by shotgun ever, it is in this action. significant litigants no Mexican nationals are of these when the liti importance elements diminishes certainly gating are United the fact that each citizens of the States parties despite have had in Mexico which might that events occur expectations might would call them for claims. making defending
Moreover, it must be that at the choice of law rul remembered time the ing made trial court at end of the first procedural phase case, was a “candidate” for vicarious actual or (through of the defective shell. agency) manufacturer The complaint charged (which “defendants” included the defective manufactured Remington) shell. Plaintiff offered shell’s manufacture Con proof suggestive necticut and transmittal to CDM inclusion in its stock trade. All that was needed at the choice level was the of law that an arguable position situation existed which included order to make enterprise a conceded Of interest defendant. is this Law Southland Mill concerning comment Review author Fat, Vege 1965) Co. ing (E.D.Ill. Inc. 482: “The court felt F.Supp. unable to solve choice of law of facts problem insufficiency .... aAs tentative choice of law ... stated solution that ‘the fac simply tual at the state of this with, allegations action indicate transac present tion most associated the State of closely Illinois concerns the lia ” (60 1, 15, of defendant.’ 83.) Cal.L.Rev. bility fn. case, *20 In the the instant trial court made its choice of law based on the then, in the evidence submitted first not As had been irrevoca- phase. it concluded that bly the Remington was not In the second manufacturer. if it felt phase, Remington, evidence come in to stronger had show that manufacturer, it was moved, move, not the have did but not for a might reconsideration of the choice of law issue. We do believe that not such a move would have been but we the above rationale as availing, al- present ternative trial the court’s decision on the support sustaining conflicts issue. fact, defendant,
As a with matter the chosen being trial, CDM being not the is litigant reasonable to substitute for the parties urged 25Neither of has the law of Delaware or Connecticut is applicable. argument Remington 26In oral this factor as the one of most importance; stressed hardly but place this can be true in a purchase situation wherein the of sale and foreign country litigants but both are American citizens.
733 itself made whence manufacture, place place the stream shell into defective which overall placed of the enterprise were Connecticut, where the plans be chiefly This would of commerce. scale broad California, of the where some and, ato degree,
formulated out. was carried advertising commented 556, court Purcell, 551, Cal.2d supra, v. 67 Reich
In within conduct concerned with “Missouri that: accident] place [the interest of she has and as to such conduct predominant her borders were here issue involved that if the It would seem the states involved.” concern, Mex be of then conduct would paramount active negligence, with as the jurisdiction ico would become somewhat more important However, that issue. interest in resolution most significant an It is actually conduct. with such tort is not concerned strict liability a defec in placing an is instrumental that once entity policy expression consumer that the reasonable (where there is no expectation tive product com stream of use) into the defects said will prior product inspect (fault). to conduct merce, attaches without regard liability then on the consumer with injured doctrine is concerned compensating sustain, able victim to is more than injured theory enterprise suffered as them, of the costs of injuries it can the burdens because spread Products, Inc., Yuba Power (Greenman v. a result of the defect. product’s Co., 63; supra, v. 61 Cal.2d 57, Ford Motor supra, Vandermark 59 Cal.2d Co., 256, 261-263; supra, Tire Barth B. F. Goodrich Cal.App.2d entitled, Liability and Products 228, 251-253.)27 As stated in a Comment 1461, Law, 1452, at Harvard Law Review The Choice page aimed at seems most frequently tort] “The measure [strict user at evaluating injuries for the assuring injured [and] compensation the business enter such costs in terms of money upon spreading At of its all ultimately products.” page prise purchasers writer, in tort as a viewing primarily compensa- Hotel, expressed v. Lone Palm Cal.3d philosophy 27Note also Haft result is also consistent 478 P.2d “This Cal.Rptr. 465]: footnote [91 assigning liability posi to a who is in the best emerging policy party tort (See, e.g., reasonably should bear them. group to distribute losses over tion Calabresi, *21 245, (1970) generally 251-252 See Oil Co. 2 Cal.3d .... Price v. Shell 499.) (1961) the 70 Yale L.J. Thoughts Law Torts on Risk Distribution Some of owner, generally the entire class more motel the case the defendant instant In view, motel, were, beneficiaries in an frequent defendants’ economic of those who lifeguard. better It is savings’ nonemployment of accompanying the ‘cost of ‘economy,’ resulting from this the loss group bear the burden of entire assigning By guest to absorb the entire loss. require particular to one than rather causation, evidence establishes in which no direct liability motel those cases damages, since of these guests bear their fair share that all motel we make sure insurance, actual costs liability or the likely either the costs of owner is to treat motel accordingly.” and establish its fees expense its business litigation, a direct of of 734 scheme,
tory state suggests, “A think itself may country responsible abroad; citizens, for injured of its even when security they are it may, cases, have to care for the pressing or his One injured person dependents. for of strict the state purpose adoption liability of residence is no doubt to scheme provide of for the satisfactory compensation injured, ap- its law when one of its plying citizens is the would serve to further plaintiff added.) such a (Italics purpose.”
Where the real issue involved in a case is of the compensation injured California courts have tended law person, of the apply place domicile, injured’s that that state has the finding greatest interest in com Purcell, 551, its domiciliaries. Thus pensating supra, in Reich Cal.2d 67 the court refused to the Missouri limitation on for apply damages wrong where, ful death to a case Missouri, the accident occurred in although decedents had plaintiffs’ resided in Ohio and their estates were being pro there, death, bated stating, “Limitations of for how damages wrongful ever, have little or to do nothing with conduct. are concerned not They with how should behave but with how survivors should be people compen sated. The place state wrong has little or no interest in such compensation when none parties there.” (Italics added.) reside (See Co., Ryan v. Clark Equipment also: 268 Cal. Cal.App.2d [74 329]; Fuller v. Greenup, Rptr. 531]; Cal.App.2d Cal.Rptr. [72 Schimmels, Schneider v. supra, 372-373.) 256 Cal.App.2d Mexico would have Although an interest in its manu regulating citizens, facturers in order to insure of its which insurance inci safety visitors, be dentally might foreign Mexico cannot be said to protective have a interest in within its comparable foreigners injured compensating course, borders. This is not to Mexico or at odds with concept, peculiar it is that it more principle protection; equal simply significant a given Further, to have its jurisdiction citizens redressed. the fact own manufacture, sale and use of the defective shell all occurred in Mexico diminishes in when isit remembered that no Mexican importance national is a in this case. party Co.,
Ryan Equipment v. Clark supra, Cal.App.2d appears be the decision which discusses the modem conflict of laws rules in strict situations. In that case the central issue was choice of law limitation of proper regarding for damages wrongful However, death. the court did note that there was no authority prop osition that the law of the of manufacture is place in strict controlling cases, (P. 682.) In that the law of the deciding place plaintiff’s residence should to the limitation of applied damages respect death, concluded, wrongful the court interest in the “Oregon’s compensa-
735 concern of death overrides wrongful any possible for of her residents tion in the regu- the defective product] of manufacture of Michigan place [the so, the instant (P. Just in 683.) manufacturers.” lation of the activities of residents injured by has its case, in compensating the interest in the have regula- Mexico may interest any defective outweighs is a to the citizen party where no tion of its own manufacturers Mexican even the doctrine law does not recognize and where Mexican action an injured for in tort or make provision compensating person constitute the policy both of which public for or suffering, principles pain 28 California. evidence it be inferred that there some from which might Further is In fact the shell in Mexico was more or less fortuitous. exploded Grandense, supra, Aerea Rio Empresa A. De Tramontana S. Viacao v. 468, Northeast Air 472, Kilberg v. F.2d the court in distinguishing
350
lines, Inc.,
133,
526],
fortuitous.” In supra, (wherein chosen), law was foreign however, nor her decedent residents of the forum neither were appellant D.C.) and the fatal was to have been a local (Washington, flight flight, under destination within Brazil. “The place origin injury, place circumstances, 472.) these . .” Like the (P. was not fortuitous . . clearly Kilberg, state in has added forum interest in an compensating its own residents where the less fortuitous. place more injury case,
In the instant of commerce was Mexican although stream oriented and there was the likelihood that would fire the defective plaintiff did, shell in Mexico as he had the shoot that day, plaintiff proposed ending and it that the the end of its Plain near hunting jaunt. appears party tiff could have reserved the of this shell fired it use easily particular later when he California. sometime was at home in Remington argues that this alternative cannot be considered on the that for ground plaintiff to have United unused CDM shells into the States brought any shotgun would have in violation of federal laws restricting been importation (Mutual munitions Act of 22 U.S.C. Security § supplemented C.F.R., 121 et and articles with by trademarks. seq.), deceptive § (19 C.F.R., 1526 as U.S.C. 11.14 et Our § supplemented seq.) § indicates that these rules would not unused and lim analysis apply ited individual and number shells shotgun acquired by plaintiff. casual transmission of a few unused CDM shells type shotgun plaintiff have might occurred would seem to fall within the contractual not However, li its we note that the trademark concept. assuming relevancy, cense between and CDM did some agreement contemplate merchandise, since it that as to manu ammunition exportation provided factured trademark CDM would ... distinctive export “apply ap did marking—two CDM such a proved by [Remington].” sep incorporate (United arated half circles on the of the shells States Reming base stamped circle). ton shells had a continuous The indicated contractual provision be construed as the consent mentioned of section might part 11.14(a) of title of Code of states that: “The Federal which Regulations of merchandise of . . . manufacture is if importation foreign prohibited . such merchandise bears mark . . which . . . simulates a trade-mark . . . recorded . . . unless such merchan in the Treasury Department of, . . dise is . with the consent owner of written imported pro However, tected trade-mark.” it more of sub plausible (b) division would which states that “merchandise manufac govern tured ... . . . ... is recorded under foreign country laws, . . . trade-mark shall to . . . simulate United not be deemed such trade-mark ... if . . . . . . and United States such trade-mark such (P. . States trade-mark . . are owned the same . . . corporation.” *24 foot- 11.14, indicated as Moreover, of section coverage the entire 240.) at dealers. seems aimed Federal Regulations, in Code of noted material of transmission such an incidental to Remington’s suggestion As afoul the Mutual Se- of would run the United States Mexico to shells from therefrom.29 Act, excepted, ammunition we note that shotgun curity the applic conviction respecting our strengthens which Another factor as a fact that Remington,, action is the law in this California of ability available to matter, plain of enterprise is the member practical in developing considerations One of the policy tiff in California. cases that in some reason very concept enterprisal of an manufacturer, enterprise, suable or other logically component other rea lack of suit through jurisdiction
would not be amenable to Co., supra, 61 v. Ford Motor son, (Vandermark an injured plaintiff. members integral one of the 262.)
Cal.2d Where is a Cali and the injured to jurisdiction amenable enterprise member that that citizen, interest in insuring California has strong fornia consumers, his partic and among bears the cost of such injuries spreads recovery would afford no law the jurisdiction when the ularly competing California citizen. the injured be considered it should not argues manufacturer, the main CDM, compo would be of which as enterprise be the law, allowed to nent, because, was not Mexican under inter CDM, even its allowed minority and because element dominating take notice are asked to judicial We est was subject expropriation. 121—Arms, Am Regulations “Part excerpts Federal 29Pertinent from 22 Code of Implements
munition, and of War” are as follows: “§ The U.S. munitions list. 121.01 designated hereby following are authority articles supra cited “Pursuant arms, ammunition, implements and of war. “Category — Firearms I length ....
“(a) [Sjhotguns 18 inches in with barrels less than Artillery Projectors “Category — II
“Category — Ammunition III Categories II . “(a) I and ... the arms in Ammunition for shotgun) . . (excluding . . “(b) : following components . . . [SJhells Interpretations “Definitions casings Cartridge and shell “§ 121.04 Munitions United States Category II of the saying that these are included in [After useless, section states:] rendered
List unless “ List.)” Munitions included in the (Shotgun is not . . ammunition . Chile, certain laws and even acts but the foreign appropriation Code, pertinent (Evid. of the laws have not been furnished. portions §§ event, (b), (b).) subd. connecting subd. In the items Rem- any identified, with the which did we have ington exist enterprise estimation, themselves; our were controlling sufficient' of the addition of stock was not ownership necessary. heed, weight contends that California should in giving pay doctrine,
to this aof availability defendant responsible possibility *25 that the sued) local to be (chosen the United States to will entity push of such suitors over of to expense compensating foreign component thus aid with United States “enterprise,” interfering to foreign policy nations, friendly, if the was situated underdeveloped foreign component in such a This is feature which California should country.30 probably examine, but in the instant case the likelihood that would affiliate, funnel such to its it could expenses only even if contrac- foreign and not tually, them over its entire marketing contractual spread spec- trum too remote.31
That an that California law should be chosen a Califor- adjudication forum, nia with the result that the theories of strict (with on the of responsibility enterprise emphasis policy thereby causing the sued to the cost of risk all customers of the broad entity among spread licensor, be would cause a such as enterprise) would trademark applied, to withdraw or Remington, from amend its to a higher arrangement place licensee, on the or would chill the of a similar obligation pursuit program others, in frustration of of the United to foreign States foster policy “regulations 30It true provided relating foreign that it is in the to . . . trade” that “export controls significantly ... are used foreign policy . . . further [t]o (15 C.F.R., the United States responsibilities. and to fulfill its international . . .” B, ch.3, 370.1, (a)(2)); subtit. pt. § export subd. and that the from the United (defined any States technical data as information of kind that can be used articles) license; accomplished through manufacture of must be and that in some respects efigaged However, type export. in that appears to set commanding why no litigation reason Mexican govern law should be chosen to the instant type obligor where no Mexican entity or citizen will or can the direct Rather, a compensatory applying award. it would be more aof reason for federal court, removing litigant law or for to federal neither of which alternatives was sought by Remington. noted, As one tenet products liability point imposi of the doctrine is the that its broadly. tion causes risk anticipate to be distributed reasonable to It is that Rem ington will enterprise’s distribute the risk which arises from the of Mexi introduction (the can manufactured ammunition into a happening stream of commerce of which brings Remington remuneration) (in marketing substantial over its spectrum entire cluding the vast price structuring power) over which it has and not shift it all foreign (by higher figures to the royalty negotiating affiliate might be when same possible) which caused a defective item to enter its stream of commerce. too thereof, our need is in opinion, nations in economic growth friendly we case. What law in this of choice of remote to become the factor pivotal may instant situation is imposition do see in respect and con- to of its reserved right inspect cause to make full use trol the of CDM quality production. the verdict of jury to the circumstance
Remington points that, therefore, could have rested one, and it reasons jury was general circumstances (under which verdict either on a agency its no finding have been an error instructions would giving prejudicial erroneous in assuming given or finding, agency properly to on plaintiff) granting Reming reloaded structions, McElroy. shell had been shotgun set was so show that CDM’s machinery ton refers its tending proof shell, since it would shut an overloaded that it could not have up produced It is doubtful of too much down introduction powder.32 prevent case. Any such would be in a products liability whether proof meaningful be no feel that there should pre it mounted little We strength. way, very for the on that the verdict rested Remington’s nonresponsibility sumption *26 the alternative bases for rather that the existence of but overloading elements, a determination us that the verdict rules out by any possibility other foundational than application participation-in-the-enterprise, law above) we were as matter of (which of strict listed present issues only. have a remand for the trial of damage which might prompted law, to choice of and affirm the trial court’s decision with We respect in- thus we cannot find that was not erroneous by prejudiced plaintiff struction of the trial court. what is the of California’s
With to our on ruling respect scope law, that we stress point aspect, particularly enterprise case, our decision is confined to the facts this but not including, specific formed, limited to the that caused CDM to- be circumstances Remington launched, not thereafter and and that the accident occurred long equipped CDM, Reming- while still had at that implementing personnel nationals, were Mexican trained of CDM’s who many key employees ton CDM, was financing that had substantial stock ownership directors, bonds and had common officers and that Remington through status with CDM substantial revenue from its contractual receiving was shown of the (established the terms of the contracts and what op- that, erations), had of control over particular, Remington rights 32Remington testimony plaintiff’s would bet that the shell also alludes he McElroy. question had been reloaded The which elicited this remark was with objection, response out of evi drawn after and it must be considered that the went event, any speculative; and even from speculation, dence with it. In the remark was party against operates, whom it is of little value. Reming- resembled closely CDM’s that CDM’s product quality product, units, bear the “manufac- ton-made that containers had to and did legend, ,” . . . tured Mexico contract with under to California.33 had borders contiguous involved foreign country with the and remanded for retrial consistent is reversed judgment views in this expressed opinion. P.J., concurred. Acting
Stephens, AISO, J., of reversal I concur judgment Dissenting. Concurring The threshold and but dissent as to the basis for reversal. piv respectfully law the California otal issue law is to be under case what applied connection, mind that to bear in of conflict of laws. In this it is important the choice of law should kept separate factors pertinent question under the Cali from the factors of liability relevant to apart question fornia law pertaining liability. relations, marital status or e.g., pro-
In this case no (involving personal are: bate), (1) the basic facts the choice of law issue place on operative sale, manufacture, (4) of the in- (2) (3) of injury, place place place Mexico-; the residence. The locale of the first three factors is jured person’s contact California is residence. plaintiff’s or “The Most Rela- Under the so-called “center of gravity” Significant the Restatement Second of Conflicts tionship Approach” (adopted law is that of Mexico. Law as noted *27 by applicable clearly majority), factor o-fresidence over the other three results To weight happenstance in a throwback to law” and the of the vestiges “personal perpetuation (See: (1965) the doctrine Harv.L.Rev. Comment extraterritoriality. the author 1465.) This is not out clearly pointed appropriate Law article discussed Nor should California Review majority. we that the law of an injured person’s overlook possibility completely be his The so-called recovery. “gov- residence not favorable to may may has similar inherent weaknesses. theories interest Both theory” ernmental de- uncertainties as o-f generate foreseeability liability by potential fendants. (1967)
Reich v. Purcell
On the other do majority adoption espouse he be a or a that the law most favorable to the whether resident plaintiff, nonresident, alien, a citizen or an applied. be sustained
The result reached can “gov- majority interest areas such as welfare relief has been ernmental which in theory,” to erosion. subject
I would conclude law selecting the trial court erred in as the under the facts of this case and that the case should law applicable be retried the law of Mexico. applying for a Court was denied
Respondent’s hearing by petition Supreme May 1972.