*1 April 10, Banc. 39316. En [No. 1969.] Philip Rolling J. Appellant, Metal Nordstrom, v. White Stamping Corporation et al., Respondents. [*]
*Reported in 453P.2d 619.
Harry Knapp Brooke, & McMullen, J. Scharnikow and by appellant. Grenier, for Brooke, Robert E. by Moren, David Rohrback, &
Horswill, Keller, Waldo respondents. Hiscock, for injured The plaintiff he fell J. when was Rosellini, by climbing manufactured
while was ladder which Stamping Corporation Rolling defendant Metal White by Stores, Inc. Fuller Paint and sold to him the defendant collapsed Contending him, he had that the ladder prod- respectively, theories, that the sued these two designed negligently manufactured, and that uct was jury warranty, The had before breached. fitness of both tried found favor defendants. case was plaintiff assigns appeal, error to the admission On assignment is as follows: certain evidence. The first admitting, objection, testi- over The Court erred purchased by Appellant mony and manu- that the ladder Rolling Stamping Corpora- White Metal factured up standards set and exceeded the tion met Standards Association Metal Portable the American admitting, objection, erred in over Exhibit Ladders and Safety Copy Standard of the American 17 which was Metal Ladders. for Portable Code assigned the admission of exhibit error is While by the excluded trial court. in fact this exhibit was rejection” plaintiff the “admission and later asserts error, incurable but he offers constitutes of this exhibit argument support statement the error record, however, examination of Our was incurable. testimony ábout this that there was considerable reveals certainly importance indelibly im- exhibit planted jury. assume in the minds of therefore We will any, error, that the if was incurable. testimony jury
The evidence which went Rolling and witnesses for the defendant Metal White Stamping Corporation describing generally composition purpose of the American Standards Association and the publication declaring of exhibit that the stand- ards set forth therein were met and exceeded the defend- jury ant manufacturer. The trial court instructed regard to this as follows: during concerning Evidence was admitted the trial Safety
American Standard Code for Metal Lad- Portable compila- ders. You are instructed that this “Code” is not a regulations any governmental tion rules, or laws provisions division and that the of the Code do not have Noncompliance compliance the force or effect of law. provisions with the negligence of this Code not of itself either negligence or lack of aas matter of law. You *3 may only consider the evidence of the Code in connection bearing upon question negli- with other evidence the gence. having assigned giving No error the to of this in- struction, it the law of the case.
According to the law, instruction, as stated published by code the American Standards Association was negligence, although compli- relevant on the noncompliance ance or with it was not in itself determinative question. plaintiff of that The nevertheless contends this relevant evidence was inadmissible because it was hearsay. says: He general objection safety The is made to codes
being express used in cases of this kind is that such codes opinions they given any and are not under oath with opportunity They for cross-examination. also deal with developing subjects opin- the controversial and ions in which years may change. over In case, code for ladders that was admitted in evidence over years ten old at the time of this trial. objections
The answers to such and the criticisms many of the rule of exclusion have been stated 632 Ms Wigmore Professor are summed up by
writers1 and is, rule hearsay treatise Evidence.2 The purpose may evidence which basically, untrustworthy to exclude inability or It is cause defense. prejudice litigant’s when its author of a contents publication, cross-examine the issue, renders of a fact wMch offered as proof However, are many pub- there objectionable. publication common which, experi- lications have attributes which as any us, trustworthy ence tells render them cross- withstood successfully who has given by a witness examination. Safety Standards, Codes, Philo, 1See, examples, and Use H. Lawyer Note, (1965); Litigation, 1 Dame Practices in Tort Admissibility 41 Notre Necessity, Hearsay 13 on Trustworthiness Based Ferguson, (1961); Evidence and the New & L. Callahan Stan. Rev. 945 Newton, (1937); Procedure, Civil 47 Yale L.J. 204-7
Federal Rules of Exception Hearsay an The Admission Rule, Printed Material as also, McCormick, Hearsay, Baylor (1967); L. see Rev. Harum, Rutgers (1956); Evidence and the L. Research Rev. 630-31 “Hearsay” Rule, 39 B.J. 419 Fla. necessity questions are discussed 2The of trustworthiness (3d ed., 1940), Evidence, Wigmore, 202-03 J. § Hearsay “Principle Exceptions Rule,” heading, wherein the author states: key Hearsay purpose is the The reason of the rule Exceptions to it. many 1362) theory Hearsay (ante, rule that the may inaccuracy possible and untrustworthiness sources of can assertion of a witness best lie underneath the bare untested brought light exist, exposed, the test of cross- if be given security may instance be But in a examination. this test sufficiently clear, instance, may superfluous; in that that the be enough inaccuracy free risk statement offered is untrustworthiness, be the test of cross-examination would so that impossible supererogation. Moreover, the a work of test *4 employment—for example, of the declarant— reason death of the necessity all, that, is there a for if his to be used is so shape. taking it in the untested Probability considerations—a Circumstantial of Trust- These two Necessity, evidence—may worthiness, for the and a be examined taking closely, first the latter. more impossible applica- (1) of cross-examination is the test Where rendering tion, or declarant’s death some other reason the cause stand, on the now as witness we are faced with him unavailable receiving test, his alternatives of statements without that or of having groups or is persons If a produced publication discussion, subject regarding knowledge special every rather having no motive to but falsify, and having author to the are known reason to state the facts as be would cross-examination authors, them to subjecting or Furthermore, a publication where a superfluous activity. one or where is number produced by great persons, either must died, more of the authors has publication authors on witness be admitted putting without leaving knowledge altogether arises unutilized. The his investigation more whether of efficient would suffer interests might by adopting the latter or the former alternative. Whatever thought general policy choosing be the former alternative of the any that, requirement, far without further is clear at least so given as in a found instance some substitute for cross-examination is ground making exception. present, to have been there for .an is necessity taking statement, mere alone of instead of untested might all, suffice; if, necessity, none at to this there is degree added situation in which some of trustworthiness more than ordinary predicated statement, can be there reason admitting merely got it as not the best that can from that be witness, ordinarily expected but better than could be without test of cross-examination. We thus come to consider the second essential element. (2) many easily There are situations which it can be seen required security, that such a test would add little as a because purposes already substantially accomplished. had been If a statement has been made under such circumstances that' even a skeptical upon trustworthy (in ordinary caution would look it as instance), high degree probability, pedantic in a it would be object already Supposing insist on a test whose chief secured. exists, properly received, such a situation could statement especially person if no other evidence from that was now available. properly The law of evidence can assumes such situations exceptions exist, Hearsay do and the rule are concerned with defining them. perception principles A of these two and their combined value responsible Hearsay has been exceptions.. for most of the Each exception, sure, to be has come into existence and been maintained independently peculiar and amid considerations to itself alone. comprehensive carrying-out system prin- There has been no of a ciples. Yet the results be coordinated under those two heads. rarely any judicial, summing-up yet principles; There has fully perceived judicially their existence has been and often stated. (Footnote omitted.) *5 must be therein
stand, or the valuable evidence contained lost. publication of a
Thus, where evidence of the contents information and material must admitted if the relevant be the trier of to therein is to be made available contained publication reasonable facts, and the is one which trustworthy, agree appears to be minds would there why The excluded. reason such evidence should be sound by hearsay purpose rule not offended the introduc- of the of such evidence. tion beyond established
The of exhibit was trustworthiness thorough any published re- after cavil. It was reasonable study appropriate assigned by special search committee ladders, a sub- construction, care and use standards for The ladders. on metal committee of which did the research represented manu- personnel interested of the committee organizations (represented facturers, such consumers Gen- the Associated Labor, American Federation of as the American Association America, the eral Contractors of Fight- of Fire the International Association Railroads, and Society ers) (such groups professional the American , Safety Society Engineers and the American Mechanical agencies companies, Engineers), of insurance associations Agriculture, Department (such as the United States Department Bureau of Labor, the United States Corps Army, Department Standards, and the Safety (Liaison)), A Council. Engineers the National objectivity organizations represented. was If of 23 total parties, representation of interested not this established presumably objectivity demon- be could the lack of such challenge seriously it, plaintiff. not He did strated difficulty have had no court should however, and the trial trustworthy. deciding A motive to the code was group; hardly falsify a diversified such could survive of standards pertinent code on which base facts knowledge participants. code This were within litiga- giving promulgated rise the facts before favoring a view to with occurred; and it was drawn tion any litigation. other position in this or a manufacturer Wigmore of neces- mentions, that other The factor which it is material sity, relevant, and present. The code is is also prepared it who defense, those to the manufacturer’s many testify. participants are too are not available highly widely It would and too scattered. in number *6 together gather to impractical, impossible, them to if not testimony testify if their trial, and it is doubtful at the im- anything is which the trustworthiness add would prepared. ported by which it was the circumstances under suggested in evidence was offered It that the code is not necessity, forgery. and the elements of trustworthiness Thus hearsay any exception rule, which form the basis present. are type says plaintiff this that a code of
However, the expression represents open a mere is to criticism it because subject developing opinion upon on a controversial and years. may change opinions that The fact which over subject may knowledge particular not scientific on a be complete evidence of whatever is no reason to exclude may expert opinions knowledge Otherwise, be available. And the on never scientific matters would be admissible. may informed as to the latest fact that a witness not be weight developments accorded the ex affect the will publication pert’s testimony particular offered, or the altogether irrelevant it does not render the evidence incompetent.3 theory portion Wigmore this in that of his work 3Professor discusses admissibility among question treatises, of learned devoted to the safety (See Wigmore, Evidence,
which he includes codes. 6 J. (3d edition, ed., 1940, Supp. 1964), 8.) In volume six of the third says: section he experiment shifting; (2) been told that Science is We have discovery continually altering and render- are scientific theories ing valueless; which was a standard them so “a medical book agree- year year”; that there is last becomes obsolete this testimony among scientists, characterized such ment uncertainty untrustworthy. instability and is They exaggeration charges. ignorant attribute in these There is instability body knowledge the due to entire of scientific sciences; progress departments rapid in certain casual proportion ignore departments they even those small to'the is illustrated validity this approach question- in the circumstances of this case. While plaintiff points ex- finger codes, accusation at all mere being current pressions necessarily reflecting not opinion he does opinion, offers no evidence that the code not subject the latest on the represent thinking and best possible change large the field of area established bears to the leaving objection But, aside,- truth. we find that accepted legal practices, itself if inconsistent with and would consistently applied exclude all even on the stand rejected scientific For if these are because witnesses. works embody science, the latest shall be said results what specialist general? witnesses hundreds of scientific Out of the experts testifying justice, how who are this month in courts of
many speaking thorough acquaintance from a with the latest subjects? many possible in their For researches how of them is steady pace daily progress How maintain with the of science? many testifying are not obtained at a medical or information ago, other technical books school a decade or more in the standard day? conflicting true, of that It where views are advanced *7 expert an cannot his on recent state views to be founded the most investigations, naturally that inferior his views are entitled to experts weight; seriously any but could it to all occur one to exclude acquaint- stand, from the not or that in fact no because this one has many profession, ance with the recent literature of his but because among body may possess acquaintance? the whole not such going exaggeration all, involved, Yet after back to the is the objection appreciable magnitude? here,” one of “I not once will sit Dallas, Chief said Justice “and hear science reviled and the recorded misrepresented leading only researches of the medical world uncertainty.” there in fact theories Is such conflict of beliefs and of, as Courts must take notice of these works? exclusion say practical legal purposes, controversy, It safe that topics exception the uncertain can are the the If we not rule. imagine proposal given to exclude a witness an event because possibly person possibly present, some other was who would relate version, possibly correct, a different which would be more we shall analogy objection. some to the true have force of this short, In if witnesses had never contradicted each other and experts might urged differed, on the stand had never it with agreed. some show of reason that writers treatises are often not guilty It is not to be wondered at that a the circumstances inconsistency feeling arises, and, sometimes in the words of a work, learned editor of Professor Greenleaf’s Greenleaf [Croswell’s Evidence, I, 497, 15th ed. n. “Courts manifest a consciousness § 4.] principle upon excluding of the want of which the rule such testi- mony rests.” (Footnote omitted.) Wigmore, Evidence, 1690, (3d ed., 1940). 6 J. at 3-4 years say it He covers. does the code was that old however, the date the time of the case; trial of this latest, the manufacture, relevance or at was the date of placed commerce, date the ladder was in the stream prior 1962, that date when the to December plaintiff purchased code, which was the ladder. Thus published years more than old October little aught at the récord, time. is still For is shown accepted nothing code, and evidence to there (unless indicate that the code is outmoded plaintiff’s expert, “designer’s eye” his that to legs inadequate, question two front looked ladder in characterized). could be thus
Conceding expression therefore that the code is an opinions group opinions experts, of a those are relevant on the of whether the defendant manufacturer properly designed question; and manufactured the article in opinions and if on the latest best subject, brought plain- could fact have out been tiff, either on cross-examination of the who testi- witnesses by introducing fied code, about the his own evidence on the matter.
Nor do we think that the'fact that the code has not been enacted into law renders it valueless. It is true that were it applicable compliance statute, contained in an with it would presumption at least care, create a of due the fact given that it has not not mean the force of law does complied evidence that defendant manufacturer weight properly with it carries at all. trial court jury weight instructed the that it should determine the *8 given testimony concerning compliance be with the standards in set forth this code. complete
It should
noted
that our cases are not in
admissibility
question
accord on the
of evidence of
adopted by
4The
held
National Electrical Code was
to have been
legislature
approved
an'
of
as
standard
construction under RCW
19.28.060,
Robinson,
760,
19.28.010 and
in
58
Folden v.
Wn.2d
364 P.2d
thereby
according
924
We
that it
created a rule of evidence
held
compliance
proof
presumptively
to which
code
of
with the
established
conformity
approved
of
with one
the most
methods of construction.
safety
type.
783,
In
the anno
75 A.L.R.2d
standards of this
among
minority
approving
places
in
tator
this court
designed
admitting
to have
evidence of standards
in
legal
applicable
particular
law,
in the
the force of
but not
minority position
the annotator
circumstances, a
of which
R.R.,
approves.
& P.
Hanson v. Columbia
S.
case cited is
sought
(1913). Recovery
was
134 Pac.
Wash.
resulting
of a
in
action for
death
switchman
reasonably
provide
equipment
aon railroad
failure to
safe
judge
not err in
held that
trial
did
car. This court
illustrating
admitting
plate
the distribution
evidence
stirrups upon
grabirons,
cars
ladders, and
handholds,
of
prescribed by
according
the Interstate
to the standards
although the
not
Commission,
action was
Commerce
Liability
plate
brought
Act,
the Federal
since
only
as
to illustrate
witnesses
admitted
was
safety ap
reasonably adequate
were the usual
what
pliances.
Seattle, 63
However,
Hartman v. Port
in the case of
(1964),
rule
cited the
Wn.2d standards of issued evidence of codes or having governmental advisory not material, bodies negligence. not on the issue law, the force of admissible has been se- No fact that this rule note was taken verely however, observe, court did criticized. This (contained concerning question standards Code) Safety introduced in the Electrical Workers’ through testimony the exclusion held that witnesses therefore, prejudicial case, That the code not error. type embody holding of this that codes does not direct deny particular rele- their it does not inadmissible and vance. Valley Inc. Office, Land
However, the recent case of (1967), O’Grady, court v. 432 P.2d 72 Wn.2d that evidence Hartman had held in the case stated that it safety, ad- governmental issued as codes standards having visory law, is admissible force of not material negligence. The merits the issue of that case. not discussed in *
639
Libby,
Libby,
160Wash.
&
In
v.
McNeill
the case of Grant
(1931),
trial court
that the
295
court held
138,
Pac. 139
excluding
copy
Electrical
National
err
a
did not
installation
of electrical
Code,
referred to varieties
which
This
concerned.
other than
one
the case was
with which
supra,
cited
R.R.,
P.
were
case and Hanson v. Columbia & S.
supra,
not as
Seattle,
Port
the court in Hartman v.
of
worthy
being
authority
of com-
rule,
but as
parison.
evidence
course,
of
the offered
case,
In the Hanson
held
admissible.
only authority
v.
the rule
in Hartman
cited for
stated
Light
supra,
Mississippi
&
Co. v.
Port
Power
Seattle,
of
(5th
1934).
1961,
In
Whitescarver,
It is the court therefore, whether proposition upon decided case relied for the stated in supra, Hartman v. Seattle, Port endorse would proposition today. early
In cases, another of our v. North Coast Schotis Stevedoring (1931), Co., 1 221 163 Wash. P.2d it was regulations Department held that of the United States applicable Commerce to American vessels were inadmissible foreign Again, with reference v. vessel. as Grant Libby, Libby, supra, proffered McNeill & pass relevancy. failed to test majority holding has,
This court
course,
followed the
mortality
purpose
tables,
admissible
offered for the
showing
expectancy.
life
Seattle,
Bradshaw v.
43 Wn.2d
Cherry
On the held admissible points these tables have been out5 excluding although necessity, practical the rule out of *10 consistently applied, exclude would treatises, learned if points out, are based Furthermore, he these also. as averages, working probabilities and do not upon mere dignity are data which of other collections of have the conscientiously expertly compiled which but more admitting mor- not in The error is- excluded as unreliable. tality misconstruing qualities of other the true in tables but publications. scientific Ry., Sage 6, 380 62 Pac. Wn.2d
The case of
v. Northern
by
v.
(1963),
Hartman
the court
P.2d 856
was not cited
supra.
held,
dis-
In
case
without
Seattle,
we
Port of
question,
did not err in
trial court
that the
cussion
the
admitting'
National
a
issued
in evidence
booklet
safety
Safety
standards
Council,
concerned
which
carryall,
carriage
equipment
a
such as
in vehicles
of loose
a new trial.
admissible
and that such evidence would be
419
Vogel
497, 502,
Co., 69 Wn.2d
v. Alaska S.S.
And
defining
regulation
(1966),
held that a federal
P.2d 141
we
ship
admissible
of a
standards of seaworthiness
negligence
shipowner, sued
of a
evidence on
by
issue
though
the act did
nonemployee,
its terms
a
even
liability
shipowner
govern
an action
not
Export
Quoting
nonemployee.
Provenza v.
American
1963)
(4th Cir,
cert. denied
Hartman v. Port Seattle, we are now opinion admissibility extended this rule of should be by private bodies, to include codes issued which have the relevance and of the code trustworthiness which preliminary was offered in action. The decision particular relevancy, whether document meets test necessity judge. trustworthiness, and is for trial The weight to be attached to it is for the trier of facts. harmony indicated,
As we have this rule is not out of previous exception Valley with our decisions, with the O’Grady, supra. language Office, Land Inc. v. in Hart supra, suggests man v. Seattle, Port that we follow majority jurisdiction, what has rule in this is at best Furthermore, dictum. in that case the of trust worthiness was discussed, nor merits of the particular publication, insofar as its relevance and authori holding tativeness were concerned. The of the case was that, presented since evidence of the standards was *11 jury, plaintiff prejudiced by the was not the exclusion of publication. the proposition Insofar as stand for the governmental that evidence of pub standards or standards by private lished bodies, which not have do the force of trustworthy law necessary but which relevant, are and prove the Valley matter contained therein, inadmissible, is O’Grady, supra, Land Office,Inc. v. and Hartman v. Port supra, hereby Seattle, are overruled. of assignment The pertains second of error to the admission testimony concerning of performed by tests the defendants’ expert witness. This witness had ladder tested a of the same purchased by kind as plaintiff, that the under various weights, positions in various to determine the conditions Although under placed which it would fall. the witness the positions during ladder in a number different experiments, he position was not certain that the exact the ladder at the time of the fall had been The simulated. plaintiff’s expert performed witness also tests in his lab- oratory purpose determining for the same strength attempt of the ladder and did not to simulate the conditions existing of these tests Evidence at the time of accident. by prior evidence introduction of was introduced to the plaintiff error it was Nevertheless, the contends defendants. of the defendants’ tests. to admit evidence purpose show how It not the of the tests to hap happened, could have accident to show how performed purpose pened. the tests This also the competent expert. plaintiff’s evidence is Such Any dissimilarity conditions relevant. between existing performed those a test of kind is weight goes evidence time of the accident jury. Poinier, Bichl v. evaluated and is matter to be any (1967). ob Furthermore, Wn.2d P.2d might plaintiff jection type of evidence which the to this of his have had he introduced was waived when own tests. plaintiff the trial
The final contention of the testify expert permitting erred in the defendants’ court concerning concerning properties ladders, of metal objection that the witness was had made. The he tests expert qualifications qualified. of an The judged not be court, and determination will the trial showing dis an abuse in the set aside absence Corp., 177, 390 64 Wn.2d Bon Marche cretion. Mason v. had that the evidence showed witness P.2d 997 chemistry degree physical and metal taken his doctor’s Branch lurgy; Mines the Canadian he had worked with large industry years in reduc with a a number of engi metallurgical taught he had research; tion and Washington, University and then had neering at the of materials field in the become a consultant The trial court *12 application and their service behavior. their testify. permitting him to discretion did not abuse weight witness’s observed, the court As the trial jury determine. was judgment is affirmed. JJ., McGovern, Hamilton, and Weaver, Finley, Hill, concur. Philip (dissenting)—All Nordstrom wanted J. J. Hale, bought Fuller buy one at the stepladder. He do was a $17.32, Seattle, for
Paint 720 North Fairview Store, know, thinking did he Little he about. he knew what day, signs, gave premonitory that one for the ladder buyer required and match meet court of law, its would be representatives Asso- output combined cerebral of Cas- America, Association ciated General Contractors ualty Surety Companies, of American Association Institute, American Petroleum Railroads, American Ladder Casualty Com- Institute, Mutual National Association of panies, Congress of Indus- Labor, American Federation of Organizations, Department Army, trial United States Agriculture, Telephone Telephone, Bell American Telegraph Company, As- National Manufacturers Lumber sociation, Association, Metal United Ladder Manufacturers Department Standards, Labor, States Bureau of Labor organizations, including engineers, and other mechanical safety engineers fighters. and fire brings theory
Plaintiff that, this action on the when he bought stepladder, thought reasonably he it would be complains safe to that, stand on. He one time now when standing he it, him it buckled and threw onto cement Paint, floor. Fuller him the Defendants which sold Rolling Stamping Corporation, ladder, and White Metal say, it, manufactured inter alia, the ladder was right promulgated, ap- all because it met the standards proved published by delegates the aforementioned City their conclave in New York October 1956. These American apparently Standards Association standards promulgated appears in a document which to have sponsored by the American Ladder Institute, American Society Safety Engineers and the National Association Casualty Companies. of Mutual I am sure that Mr. Nord- stepladder strom has ceased to wonder how a household weight heavy sponsorship support could bear the of so a householder, too.
The document, considered in evidence as defendants' Safety No. 17, exhibit was entitled the “American Standard *13 published for had Ladders,” Code Portable and Metal private organization American itself the which calls Incorporated. Association, Received in evidence Standards hearsay, objections over I what consider sound it was opinion and evidence best constituted beyond cross- means of a document the reach of written self-serving, palpably I examination, would add it that was too. offered, (exhibit 17)
The ASA standards No. through professional Records, a me- of Mr. engineer plant manager and chief chanical served as who engineer Rolling Stamping for defendant Metal White Corporation com- Warsaw, Indiana. He testified that his pany produced accepted its ladders these standards and making participated meet He stand- them. had not adopting led to ards, them, which or in conclaves understanding adoption. 'and than contents their Other greater accepting sound, had the standards as the witness knowledge transpired York at the New testimonial meetings what jury. company, said, he than His did the court accepted and then to and the ASA standards subscribed requirements set its ladders better than the minimum built company, produced he therein. All ladders his forth greater and would have a said, exceeded the ASA standards designed capacity stability carrying ladders than load strictly according the code not have it. He conceded did expresed it, was, he the force of law admitted that suggestive for “A code for basic standard no more than merely binding prepared no one and ladders,” manufacturing engaged in the business of those benefit ladders. my opinion, to little more
In the ASA code amounted industry, manufacturing ladder an than endorsement groups representatives from selected ladder merchants and Although product. speak presuming for users of sponsorship in providing information, kind of useful degree my judgment, impart such not, did commerce reliability code as to war- standards ASA objection. evidence, it was over As rant its admission majority opin- nothing palpable hearsay, and I in the see category. ion to remove it from that ASA code all of the insufficiencies itself contains hearsay. unreliability it as
indicia exclude should says, approved It code title first “The above *14 July April approved on 25, 11, on 1923. Revisions were April 2,1948, 10,1952,” and shows that November promulgated the edition in evidence October 1956. intrinsically something It occurs me to so reliable as a be admitted in court its contents basis that express quasi verity subject a eternal should not have been frequent to such amendment. good technology improvements
I think in ladder subject, are reflected in the literature on the but this fails provide, my opinion, assuming a for that the basis hearsay. nothing intrinsically literature is not is There so trustworthy about American Code as to Standards abrogation against long-standing an warrant hearsay rule general. disagreement evidence in I Thus, am in majority compatible with that the code is ASA with Wigmore’s may private recommendation that codes necessity. Wigmore, be admissible on the basis of 5 Evi- (3d 1940). § dence 1420 ed. Here the declarant was not a person purportedly panel but a committee interested persons meeting adopt a code of a standards at time nearly years trustworthy quest 10 trial, before greater necessity evidence there no to admit the code than to exclude it.
aIf ladder manufacturer or ex- merchant wishes to call pert may subject, witnesses, course, he do so, may principle universal be cross-examined. Here speaking there was no declarant rather a committee through leaving a formalized document the declarants unresponsible unidentified and for its contents. Added to unreliability, deficiency hearsay have the we further compounded, for the witness under whose present document was offered in evidence was not at promulgated conclave which it. universally
Subject hearsay exceptions, to certain being upon incompetent excluded as (29 (1967)), § 493 establish a fact Am. Jur. 2d Evidence exception prevails and and in those instances where an hearsay hearsay on circum admitted, must rest guaranty establishing such stances trustworthiness legal supply equivalent declarant’s force as to (1967). Thus, docu oath. Am. Jur. 2d Evidence where, in evidence ment its contents be admissible age, quality, and because from its or inherent nature long-established independence offer or from the declarant’s verity it could not doubted, should not be otherwise things self-serving. principle, be deemed Under this such mortality government prepared tables, tables, tide news journals reflecting paper reports and stock market given prices date, of a if of of commodities as Drug Meyer Co. v. Cal Bros. circulation, are admissible. Pac. 683 But these lison, 120 Wash. *15 society by organized daily acceptance things in use and untrustworthy large, that fact would if are at emerge. usage ordinary probably the course continued stepladder code of not case However, this is the with standards. hearsay may received
Even
rule
be
the
that
hedged
family relationship
pedigree
or
with
establish
safeguard
available, his
the
must not be
the
that
declarant
prior
trial, and there
have
made
must
statements
purpose
McCormick, Evidence
deceive.
or
was motive
dispute,
(1954).
paternity
§
the de
And,
case
paternity
parents’
are
as to
admissible
ceased
statements
only
to deceive
there was no motive
when
if made
a time
litigation.
clearly
'anticipation
Al
v.
not in
Carfa
(1951).
bright,
Some scholars the hearsay against Meisenholder, for ex- evidence. Professor Washington ample, says law authorizes cross- that experts examination of textbooks but treatises and showing insists foundation laid must first be way the witness either admits or in some other shows the book or treatise is authoritative. The use textbooks hearsay “on direct is not authorized nature of because apparent.” the text is . . . Meisenholder, Wash. Prac. (1965). Significantly, Evidence 358 in Professor nowhere hearsay exception Meisenholder’s discussion of rule or safety having thereto, is it stated that force codes not may ought of law admitted on be direct examination. See Meisenholder, 5 Evidence, Wash. Prac. chs. 20 and 374, 499 Finally, I do not read Hartman v. Port Seattle, 63 (1964), way
Wn.2d
material,
not
law,
force of
is not admissible
negligence,
on the issue of
.
.
.”
So-called standards which do not have the force of law
nothing
are
opinions
more than the unsworn
of their au-
subject
thors and the
authors
to cross-
opinions
examination. Even the
of the authors
change
Mississippi
after their rules are written.
&
Power
*16
Light
(2d)
(5th
1934).
Co. v. Whitescarver, 68 F.
928
Cir.
Libby,
Libby,
Grant v.
McNeill &
138,
160
295
Wash.
Cf.
(1931);
Puget
Pac. 139
Hanson v. Columbia &
R.
Sound
(1913).
Co., 75
342,
Wash.
648 Sup. Ct.
denied, 376 2d 84 970 Ed. U.S. L. which, (1964), “Safety excerpts and in Health from the Secretary Regulations Longshoring” promulgated for seq., pursuant 941, et admited of Labor to 33 U.S.C. authority rejecting my evidence, in view constitutes supports my view, case, the ASA us. That code before proposition although standards codes that, by governmental having promulgated effect of law industry, agency having jurisdiction or call in the business ing regulation evidence, such codes are admissible in emanating a non or standards are not if admissible governmental source. governmental supporting admission of reasons rejecting private 'and ones is that the
codes and standards qualities the ma- intrinsic mentioned trustworthiness wanting jority to inhere in the former and are be said parenthetically, the latter. should noted that in But governmental jurisdictions even ad- codes some (1967). Annot., 2d See Am. Jur. Evidence missible. A.L.R.2d 778 grounds that would, therefore, I on the reverse erroneously that, code considered ASA weight importance evidence, sufficient it was of probably affect the result of the trial. did J. J., Neill, J., C. Hunter, Hale, concur with