Kuiper v. Goodyear Tire & Rubber Co.

NO. 82-224
I N THE SUPREME COURT OF THE STATE OF MONTANA
1983

DENNIS KUIPER,
Plaintiff and Respondent,

-vs-
THE GOODYEAR TIRE & RUBBER COMPANY, et al.,
Defendant and Appellant.

APBEWL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable H. William Coder, Judge presiding.

COUNSEL OF -CORD:

For Appellant:
Dzivi, Conklin & Nybo; William Conklin argued,
Great Falls, Montana
John C. Noonan argued, Kansas City, Missouri
Kenneth R. Betzler, Akron, Ohio
For Respondent :
Conner, Baiz & Olson; Dennis P. Connor argued,
Great Falls, Montana
Niewald, Risjord & Waldeck; John C. Risjord argued,
Kansas City, Missouri

Submitted: May 12, 1983
Decided : Novernber 25, 198 3

Filed:
NOV 2 j 1983

Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d the Opinion of
the Court.

P l a i n t i f f , Dennis Kuiper, brought a p r o d u c t s l i a b i l i t y

a c t i o n a g a i n s t t h e Goodyear T i r e and Rubber Co. (Goodyear)
a f t e r h e was i n j u r e d w h i l e w o r k i n g on a m u l t i - p i e c e truck

w h e e l rim. Following a twenty-five day t r i a l i n t h e Eighth
J u d i c i a l D i s t r i c t C o u r t f o r C a s c a d e C o u n t y , t h e j u r y awarded

p l a i n t i f f $325,000 i n c o m p e n s a t o r y damages and $ 1 , 5 0 0 , 0 0 0 in
punitive damages and judgment was e n t e r e d based upon the
jury verdict. The District Court denied a new trial.
Goodyear a p p e a l s . W r e v e r s e a n d remand f o r new t r i a l .
e
On A u g u s t 1 3 , 1 9 7 9 , p l a i n t i f f , a twenty-two year old

newly-married man, was employed a t a n i n d e p e n d e n t Goodyear

d e a l e r s h i p i n G r e a t F a l l s , Montana, known a s A n d y ' s D & K.

H e had b e e n employed f o r o n l y a s h o r t p e r i o d o f t i m e and was

working in the shop as a tire repairman, called a
tirebuster. L a t e i n t h e a f t e r n o o n of August 13, t h e s e r v i c e

manager instructed Kuiper to do a flat repair on a

multi-piece t r u c k t i r e w i t h a r i m known a s a Goodyear K-28.
Kuiper had never worked on that type of a wl~eel, s o a

co-worker, David H u s t o n , helped Kuiper dismount t h e tire,
repair the tube, and i n s t r u c t e d K u i p e r how t o p u t t h e t i r e
and rim back together. Huston left t o work on another

project, and K u i p e r a s s e m b l e d t h e r i m a n d t i r e a n d i n f l a t e d

t h e t i r e i n a s a f e t y cage. After t h e t i r e was i n f l a t e d ,

K u i p e r r o l l e d t h e t i r e t o t h e t r u c k and p r o c e e d e d t o mount
t h e t i r e and w h e e l on t h e w h e e l l u g s . As h e was m o u n t i n g
t h e t i r e and w h e e l t h e r i n g e x p l o s i v e l y s e p a r a t e d f r o m t h e
r i m b a s e and s t r u c k K u i p e r in the face. Kuiper suffered
multiple facial fractures, jaw fracture, loss of teeth,

d i p l o p l i a o f t h e r i g h t e y e , f a c i a l p a r a l y s i s and a c e r e b r a l
contusion. Doctors testified that as a result of these

injuries, Kuiper c o n t i n u e d t o s u f f e r from f a c i a l p a r a l y s i s ,
loss of sense of smell and taste, loss of memory and

concentration, anxiety, d e p r e s s i o n and traumatic neurosis.
M e d i c a l e v i d e n c e was c o n f l i c t i n g a s t o w h e t h e r K u i p e r had

s u f f e r e d o r g a n i c b r a i n damage.

After partial recovery, Kuiper returned to work at

Andy's D & K a s a salesman. Be was u n a b l e t o f u n c t i o n a s a
s a l e s m a n d u e t o memory l a p s e s a n d l o s s o f c o n c e n t r a t i o n . He

next returned t o work i n t h e s h o p b u t was u n a b l e t o c o p e

with the anxiety he experienced while working there.
Following medical recommendations that he should change

o c c u p a t i o n , Kuiper e n r o l l e d a t a v o c a t i o n a l t e c h n i c a l s c h o o l

i n Missoula studying f o r e s t r y .
On December 28, 1979, Kuiper filed a complaint in

District Court against Goodyear. The complaint sought

damages f r o m Goodyear a s t h e d e s i g n e r and m a n u f a c t u r e r of

t h e K-type w h e e l , f o r s t r i c t l i a b i l i t y f o r d e f e c t i v e d e s i g n ,
f a i l u r e t o w a r n , m a n u f a c t u r i n g d e f e c t and m a l i c i o u s c o n d u c t .
Because t h e c a s e is r e t u r n e d f o r new t r i a l , we n e e d
n o t review t h e e x t e n s i v e f a c t u a l record. Our f a c t u a l r e v i e w

w i l l b e b r i e f w i t h t h e aim of i l l u s t r a t i n g the contentions

of the parties. The wheel which separated and caused

Kuiper 's injury is a Goodyear K-type-28, manufactured in

March, 1 9 4 4 . The w h e e l h a s two p a r t s : (1) a s p l i t b a s e ( 2 )

a combined slide ring and locking ring. Plaintiff's
mechanical e n g i n e e r w i t n e s s t e s t i f i e d t h a t t h e most p r o b a b l e
c a u s e o f t h e s e p a r a t i o n was t h e a b s e n c e o f a p o r t i o n o f t h e
g u t t e r hook on t h e s p l i t b a s e which s e r v e s t o h o l d t h e s l i d e

r i n g and l o c k i n g r i n g i n p l a c e when t h e p a r t s a r e a s s e m b l e d
and t h e t i r e i s i n f l a t e d . That witness t e s t i f i e d t h a t t h e
m i s s i n g p o r t i o n of g u t t e r hook was a m a n u f a c t u r i n g d e f e c t
which may h a v e b e e n i n c r e a s e d w i t h t h e u s a g e o f t h e wheel,

and he f u r t h e r t e s t i f i e d t h a t t h e l o c k r i n g was m a n u f a c t u r e d
.032 of an inch too large. He also testified that the

missing g u t t e r hook and oversized ring caused the unsafe
assembly which explosively separated while Kuiper was

m o u n t i n g t h e w h e e l on t h e t r u c k . He further testified that

a locking device patented t o Goodyear i n the 1930's could

h a v e b e e n p l a c e d on K-type wheels t o decrease t h e r i s k of

explosive separation.
Goodyear presented expert testimony that the K-type

wheel was not defectively designed and that the wheel
involved in Kuiper's accident was not defectively

manufactured. Goodyear e x p e r t s t e s t i f i e d t h a t t h e m i s s i n g
g u t t e r hook was c a u s e d by wear and t h a t K u i p e r s h o u l d h a v e

recognized the dangerous condition of the wheel and not
reassembled it. Such experts testified that the K-type
w h e e l i s a s a f e w h e e l i f p r o p e r l y m a i n t a i n e d and a s s e m b l e d
a c c o r d i n g t o Goodyear ' s i n s t r u c t i o n s . A Goodyear witness,

t i r e s u p e r v i s o r f o r a G e o r g i a e x p r e s s company, t e s t i f i e d t h e

K-type w h e e l i s s a f e i f p r o p e r l y m a i n t a i n e d and a s s e m b l e d ,
although he testified that his shop had two accidents
involving K-type wheels caused by improper mounting

procedures.
Kuiper introduced evidence of other accidents
i n v o l v i n g m u l t i - p i e c e w h e e l s i n g e n e r a l and K-type w h e e l s i n
particular. One exhibit reveals that as of May 1981,
G o o d y e a r h a d n o t i c e o f a s many a s e i g h t y - s i x other reported

accidents involving K-type wheels. No evidence was
i n t r o d u c e d s h o w i n g e x a c t l y how o t h e r a c c i d e n t s o c c u r e d , n o r

the age o r c o n d i t i o n of t h e exploding wheels. Plaintiff
introduced an inter-office memo w r i t t e n by a manager of

f i e l d e n g i n e e r i n g o f t h e m o t o r w h e e l d i v i s i o n o f Goodyear i n
which he stated that parts of the multi-piece rim are
i n h e r e n t l y d a n g e r o u s b o t h on t h e h i g h w a y a n d i n t h e s h o p .
H e s a i d t h e p a r t s "sometimes c a t a s t r o p h i c a l l y c e a s e t o s e r v e

their intended purpose" and that "the time a t which the
u s e f u l n e s s c e a s e s i s d e p e n d e n t on c h a n c e , s e r v i c e p r o c e d u r e ,

maintenance, proper use of tools, and t h e use, a b u s e and

misuse of which parts have been subjected during their
lifetime." That w i t n e s s e s t i m a t e d t h e u s e f u l l i f e of the
a v e r a g e K-type w h e e l a t t w e l v e t o f o u r t e e n y e a r s . The w h e e l

involved i n t h i s c a s e was a p p r o x i m a t e l y thirty-five years
old.

It is significant to note that Goodyear ceased

p r o d u c t i o n o f t h e K-type w h e e l i n 1 9 6 8 , p r i o r t o a n y o f t h e
i n c i d e n t s r e f e r r e d t o i n t h e t r i a l of t h e c a s e .
With r e g a r d t o t h e Goodyear p o l i c y o f notifying tire
r e p a i r shops of t h e n e c e s s i t y o f u s i n g c a r e i n h a n d l i n g t h e

wheels, Goodyear presented evidence showing t h a t Goodyear
had distributed a multitude of charts, posters and

advertisements which demonstrated the proper assembly of
multi-piece rims. A Goodyear witness testified that the

charts, posters and advertisements warn that multi-piece
rims can be dangerous i f t h e y a r e n o t p r o p e r l y assembled o r
if the parts are worn or abused. Goodyear also had
a v a i l a b l e a f i l m e n t i t l e d , "You May Not G e t a S e c o n d Chance"
which showed explosive separation of a multi-piece rim. The
film was shown at some seminars and was available to
independent dealers for a fee. The service manager at
Andy's D & K testified there was some of the multi-piece
warning posters and literature in the shop, but he did not
recall exactly which ones.
In 1977, during the administration of President Carter
and subsequent to the problems of the Nixon administration
which are later discussed, the Director of the Office of
Defects Investigation of the Department of Transportation
reopened the K-type wheel investigation. In November, 1979,
he transmitted a letter to the Vice President of Goodyear
stating:
"By 1973, inclusive, we have identified
at least fourty-two accidents and twelve
deaths involving the explosive
disassembly of K-type rims. All types of
multi-piece rims can be subject to a
variety of servicing procedures,
including the use of warnings, corroded
or mismatched parts. When recognizing
this, the significantly higher number of
accidents found among K-type rims is
totally unacceptable and points to an
inherent safety defect in these rims."
He requested Goodyear to notify him within seven working
days whether they would conduct a safety recall. Goodyear
reponded to that request stating they would attempt to
recall the K-type wheels rims by replacing, without charge
those manufactured in 1968 or purchased after January 1,
1971. Wheels manufactured prior to 1968 could be replaced
with a new type rim at a discounted price. The recall was
unsuccessful. Originally Goodyear offered ten percent of
cost discount and later raised that to twenty-five percent.
Following are the issues:
1. Did the trial court err in admitting the following
irrelevant and prejudicial evidence in connection with the
plaintiff's allegations of political bribery and lying to
the Ervin Committee:

(a) the political campaign contributions by
Goodyear ;
(b) all of plaintiff's references to Watergate;
(c) the DeYoung videotape?
2. Did the trial court err in admitting the following
irrelevant and prejudicial evidence of other accidents :

(a) documents mentioning other accidents
dissimilar to the plaintiff's accident;

(b) testimony by Youngdahl from a document
identified as Phase 111;

(c) a video-taped dramatization of other
accidents, which was shown to the jury;
(d) the Brandford letter?
3. Did the trial court err in submitting instructions
13, 27 and 41 to the jury:
(a) were instructions 13 and 27 erroneous
because they did not include "without substantial change in
condition" as an essential element of plaintiff's proof;

(b) did instruction 41 erroneously equate
"unjustifiable conduct" with malice?
4. Did the trial court err in submitting the issue of
"failure to warn" to the jury?
5. Was the jury verdict influenced by misconduct of
the bailiff?
6. Was the jury verdict excessive, based on an
unsupported assumption, and inspired by passion and
prejudice?
 We will discuss those issues which require reversal or
which may cause problems on retrial.
Issue 1 relates to plaintiff's opening statement to
the jury, plaintiff's evidence and plaintiff's closing
argument with regard to an un-taxed slush fund in a Swiss
bank account used by Goodyear as contribution to CREEP
(Committee to Re-elect the President), extensive references,
by name, to those persons involved in the Watergate scandal,
with particular emphasis upon those convicted of crimes in
the Watergate scandal, a video-tape of Goodyear chairman
DeYoung appearing on television before the Ervin Senate
Committee to discuss the campaign contribution, and the
conviction of Goodyear in regard to that contribution.
The theory upon which the plaintiff contends that all
of such matters are admissible is under Section 27-1-221,
MCA, which provides that exemplary damages may be allowed
where a defendant has been guilty of "oppression, fraud, or
malice, actual or presumed." The general standard for the
recovery of punitive damages is restated in Graham v. Clarks
Fork Nat. Bank (Mont. 1981), 631 P.2d 718, 721, 38 St.Rep.
1140, 1143, 1144, to wit:
". . . we stated the general rule
respecting punitive awards:
"'To warrant the recovery of such damages
the act complained of must not only be
unlawful, but must also partake somewhat
of a criminal or wanton nature. And it
is an almost universally recognized rule
that such damages may be recovered in
cases, and only in such cases, where the
wrongful act complained of is
characterized by some such circumstances
of aggravation as willfulness,
wantonness, malice, oppression,
brutality, insult, recklessness, gross
negligence, or gross fraud on the part of
the defendant.'" (emphasis added)
The Goodyear act complained of is the alleged defective
design, failure to warn or manufacturing defect of the
K-type wheel. The record fails to disclose any relationship
between the political activities of Goodyear and the wheel
case at issue here.
We recognize that the purpose of the opening statement
is to inform the jury of the evidence to be presented to
justify recovery and place it in perspective. In
plaintiff's opening statement, it is apparent that the
intent was to persuade the jury that the criminal and wanton
conduct of Goodyear in making its political contribution to
CREEP and supporting the scandalous conduct of the Nixon
administration, was a proper reason to conclude that
punitive damages should be awarded against Goodyear,
regardless of the presence or absence of a direct connection
to the design, production and manufacture of the K-type
wheel.
Plaintiff's opening statement to the jury fills
approximately seventy-two pages of transcript. Over forty
of those pages are devoted to a recounting of the political
slush fund, the contribution to the Nixon administration,
and the Nixon Watergate scandal, with great emphasis placed
upon the names of those who were convicted of various crimes
in the Nixon administration. Following are illustrative
portions of plaintiff's opening statement:
". . . It developed that in the 1960fs,
Goodyear, through their foreign
affiliates in Europe, were getting
kickbacks or rebates from suppliers to
their foreign affiliates, and rather than
report them honestly and on the books,
they decided not to pay any tax, not to
report them on their books, to issue by
some kind of a financial controller's
gimick [sic] a bank check to the
subsidiary and aquire the cash rebate.
They were always paid in cash, and put it
in a secret account that they set up with
nothing but a code name. That code name
of that account was Goyeda. That bank in
Switzerland accumulated the cash then
over a period of time.
"One of the purposes, or the one we're
concerned with of that cash fund, was to
build up a domestic political slush fund
in this country. ..

"The opportunity to use it in influencing
domestic politics arose either late 1971
or early 1972. ..

" ... In December 1971, the White House
operative for personnel, the man who was
doing the job in the federal government,
he's the key man, was Fred Malek. ..
"Fred Malek was on the Nixon White House
Staff in the Office of Management and
Budget as the personnel director. If you
wanted a fat federal job, you saw Malek
... you will recall that the Chief of
Staff of Nixon's White House was the
gentleman named H.R. Haldemann. In
December of 1971, Malek suggested in a
long memorandum, which is a public
government record, that Haldemann allow
Malek to set up a program, which he first
talked about politicizing the
bureaucracy, by which fancy words he
meant, 'We're going to make the people
who are civil servants in Washington and
work in the departments such as the
Department of Transportation, work for
the re-election of the president.'
"They finally smoothed this out to a
euphamism called the responsiveness
program, by which they proposed to make
the departmental people in the executive
branch of government responsive to the
President's needs to be re-elected. And
as you'll all recall, Mitchell became the
chairman of the committee that became
notoriously known as CREEP, the Committee
to Re-elect the President.
"He had been the Attorney General.
Maurice Stans had been the Secretary of
Commerce and became the Chairman of the
Finance Committee to Re-elect the
President. ..

"In February, 1972, . . . Maurice Stans
at a business counsel meeting in
Washington meets Russell DeYoung. Who is
he? Russell DeYoung is the Board
Chairman of the Goodyear Tire & Rubber
Company, and he asks Russell DeYoung if
he can come and see him. The testimony
will be DeYoung responds, 'You don't need
to come and see me, I'll send a man to
see you.' And he does.
"The man he sends is the man that's in
charge of the slush fund, Mr. Arden
Firestone.
"DeYoung and Firestone agree that they're
going to contribute $20,000 to the
request of Stans, and they hand-carry in
cash $20,000 by way of courier, Firestone
to the Off ice of the Finance Committee to
Re-elect the President.

"When Firestone carries the money in the
bag wrapped in brown paper, it is
testified, to 1701 Pennsylvania Avenue
and delivers it to the Committee to
Re-Elect the President, Stans advises him
that he is disappointed, it is not
enough, and sends him back to Akron for
more. Firestone consults with Russell
DeYoung and they agree between themselves
they will add another $20,000 to the
ante. And then DeYoung decides that he
will add $3,000 of his own, and a check
from his wife for two more. A total of
$45,000. The other twenty comes out of a
safe, and now they are up at $45,000.
Firestone returns to Washington with the
cash, delivers it to Stans, and it is
accepted without comment.
"Now, it develops that the Finance
Committee to Re-elect the President is
made up of, among other people, of
Maurice Stans, of course, and a budget
committee serving with him, and Magruder,
and on the political committee is Fred
Malek. ..

" . . . In January 1972, following the
Nixon re-election, the president of the
Union Oil Company, Claude Griniger,
G-R-I-N-I-G-E-R, I believe, became the
Secretary of Transprotation. His
righthand man, Dr. James Gregory, became
the Administrator of the National Highway
Traffic Safety Administration. The other
Secretary of Transportation, and the
evidence will be that Mr. Malek proposed
that we work through the undersecretary,
he's our man--the Undersecretary of
Transportation, Egil Krogh. He--strange
name, E-G-I-L K-R-0-G-H, but pronounced
like the bird. Egil Krogh had been in
the Nixon White House Staff. He had been
the man who organized the White House
security force that became known as the
plumbers.
"Egil Krogh acted under Secretary of
Transportation through the spring of
1973, before the plumbers and the grand
juries finally got to him.

". . . In April 1973, fact, Common Cause,
a consumer public interest group,
following the burglary and the aftermath
of the Watergate, files a lawsuit in the
United States District Court for the
District of Columbia against the
Committee to Re-elect the President.
"In April, they're asking for records of
the contributors to the Finance Committee
to Re-elect before the April 7, 1973
deadline. ..

"Firestone advises him, we'll have to get
back to Stans. He talked to DeYoung.
Stans and DeYoung conclude that they'll
give them some phoney names. Stans and
DeYoung met with the executives of
Goodyear, that included Mr. Pilliod, Mr.
Lane, who is their public relations man,
and others. They explained the
situation, and those gentlemen agree that
their names can be misrepresented as the
contributors, when they didn't give a
cent of money.

"Well, by July, Common Cause, it now
appears to the lawyer for the Finance
Committee to Re-elect, that the judge is
going to make him reveal the records of
who it was that gave this pre-April 7th
money. Now, the only evidence, the only
 record of it, because they destroyed all
the evidence, was a list prepared at F.
CREEP, and sent down the street a block
to 1600 Pennsylvania Avenue, addressed to
Rosemary Wood, the personal secretary to
Richard Nixon. That became know as
Rosemary Smith, and Rosemary's list was
the only record of the contributors prior
to April 7th, coding, cash or whatever.
Goodyear employees appear on Rosemary's
list, which will be in evidence.

"Mr. Meyers and Mr. DeYoung and Mr.
Firestone consult with outside counsel,
and they decide the jig 's up, so they go
to the Watergate special prosecutor, who
you recall is Archibald Cox at the time,
to his staff, and they tell their story.
"Archibald Cox charges Goodyear with
violation of the federal election law,
felony offense, or it could be a felony
offense, and also charges Russell DeYoung
with that same crime. ..
"On April 19, 1973, Russell DeYoung
pleads guilty to violating the federal
election law by giving the corporate
contribution, and the Goodyear Tire &
Rubber Company pleads guilty to the same
charge, or substantially the same. Those
guilty pleas are a matter of record and
they'll be before you.
"Mr. DeYoung is subpoenaed to appear
before the Irvin [sic] Committee, that's
the Committee of the Senate, Senate
Select Committee on Presidential Campaign
Activities. It's chaired by Sam Irvin
[sic] from North Carolina. He appears on
November 15, 1973, and before the Irvin
[sic] Committee and a television audience
of 50 million, possibly including some of
yourselves. He testifies under oath
about the scenario of these payments."
No statement was made by plaintiff's counsel in the
opening statement to connect all of the foregoing to the
Department of Transportation, the wheel investigation and
this case. Goodyear moved for a mistrial at the conclusion
of plaintiff's opening statement, on the basis that the
plaintiff had failed to state sufficient facts to show any
relationship to the actions of the Department of
Transportation and its investigation of the K-type wheel.
Counsel also argued that the plaintiff had not stated
sufficient facts to show a basis for an award of punitive
damages based on the political contribution issue. The
District Court considered the objections and denied the
motion stating in part:
"THE COURT: Okay. Well I don't need any
further agrument, gentlemen. There isn't
any question about it that references to
Watergate and the participants in this
thing is prejudicial. I agree with that,
John [Goodyear's counsel] .
There's just
simply no question about that. Whether
or not we can overcome that by
admonitions and instructions to the jury
from here on out remains to be seen.
"The difficulty I have with the motion
for a mistrial is that granting that
would prevent the plaintiffs from putting
on their case, and they've got a right to
their theory of the case.
"And accordingly, predicated upon that
fact alone, the motion for a mistrial is
denied. The same is denied, however,
without prejudice to resubmit that motion
or any other relevant motion having to do
with the prejudice or the removal of this
particular issues from the case.
Alright?"
From opening, through plaintiff's case-in-chief, to
closing, plaintiff presented his theory of the Goodyear
political contribution to the Nixon Administration in an
unsuccessful attempt to tie the activities of the Nixon
Administration to the investigation of the K-type wheels.
In addition to the motion for mistrial at the conclusion of
the opening statement, Goodyear moved for mistrial at the
close of plaintiff's evidence and again at the close of all
evidence. All motions were denied.
The record shows that Goodyear admitted that it had
p l e a d g u i l t y t o making a c o n t r i b u t i o n t o CREEP, t h a t those

c o n t r i b u t i o n s w e r e i n v i o l a t i o n of T i t l e 1 8 , U.S.C., Section
601, a misdemeanor, a n d Goodyear p a i d f i n e s o f $5,000 and
$1,000.

Throughout t h e t r i a l , p l a i n t i f f attempted t o l i n k t h e
Goodyear contribution to an attempted avoidance of the
r e c a l l of t h e K-type wheels. Testimony b e f o r e t h e S e n a t e

E r v i n Committee was shown t o t h e j u r y , w i t h e m p h a s i s on t h e
e f f o r t s o f Mr. Malek, a member o f t h e Committee t o Re-elect

the President. Malek, who testified before the Ervin
Committee, denied knowing of any situations in which

p r o c e e d i n g s b e f o r e any department o r agency were i n t e r f e r e d
with, influenced or obstructed.

Plaintiff's theory in offering evidence of the

Goodyear c o n t r i b u t i o n t o t h e j u r y was t o s u g g e s t t h a t t h e

c o n t r i b u t i o n was made i n o r d e r t o p r e v e n t t h e K-type wheels

from b e i n g recalled. It s h o u l d b e n o t e d t h a t i t was n o t
u n t i l 1974, a f t e r t h e i n v e s t i g a t i o n had b e e n c l o s e d , that
NHTSA (the National Highway Transportation & Safety
Administration) was empowered to order any recall. In
a d d i t i o n , e v e n a f t e r t h e 1974 s t a t u t o r y c h a n g e which a l l o w e d

recall, NHTSA c o u l d o r d e r r e c a l l s o n l y i n s i t u a t i o n s w h e r e

t h e r e had been a f i n d i n g o f s a f e t y - r e l a t e d defects. Up t o
t h e t i m e o f t r i a l , t h e r e was n e v e r a f i n d i n g by NHTSA t h a t

t h e Goodyear r i m s had a s a f e t y - r e l a t e d d e f e c t .
Our c a r e f u l r e v i e w o f t h e v e r y e x t e n s i v e r e c o r d , shows

a total absence of evidence connecting the political
c o n t r i b u t i o n o f Goodyear t o t h e i n v e s t i g a t i o n by a f e d e r a l
agency of multi-piece rims o f t h e t y p e which injured the
plaintiff. As a result, it is c l e a r t h a t the evidence of
Goodyear's contribution to the Committee to Re-elect the
President was inadmissible under Rule 402, Mont.R.Evid.
In allowing the injection of the Goodyear political
contribution, its criminal conduct in making that
contribution, the Watergate scandal, and the references to
the criminal participants in that scandal, the trial court
allowed a relatively simple products liability case to
become a political circus and denied the parties the right
to a fair trial. We note that the jury split 8-4 on
liability indicating it was rather close on the products
liability questions. However, the vote for punitive damages
was 12-0. This suggests improper influence of the jury on
the punitive damage question.
In failing to exclude the prejudicial statements and
prejudicial evidence, the trial court permitted the jury to
indulge in improper speculation and guesswork contrary to
our holding in Graham v. Rolandson (1967), 150 Mont. 270,
435 P.2d 263.
It has long been the law in Montana, that to sustain a
recovery the evidence relied upon, whether direct or
indirect, must be substantial--more than a mere scintilla.
Escallier v. Great Northern Ry. Co. (1912), 46 Mont. 238,
127 P. 458; McIntyre v. Northern Pac. Ry. Co. (1920), 58
Mont. 256, 191 P. 1065. A verdict cannot rest upon
conjecture, however shrewd, nor upon suspicion, however well
grounded. Olson v. Montana Ore Purchasing Company (1907),
35 Mont. 400, 89 P. 731. In Monforton v. Northern Pac.Ry.Co.
(1960), 138 Mont. 191, 211, 355 P.2d 501, 511, this Court
held:
"The record presents no evidence whatever
that appellee's attention was distracted
 by the Cloyd car or that Monforton,
because of any distraction, failed to
make the necessary look-out for the
train. To find otherwise involves an
assumption or inference based upon
speculation or conjecture that the Cloyd
car did distract his attention and the
second assumption or inference based on
the first, that this distraction was the
cause of the failure of Monforton to
discover the train's approach. But under
section 93-1301-1 to 4, and Fisher v.
Butte Electric Ry., 72 Mont. 594, 235 P.
330, one inference cannot be drawn from
any other inference or presumption."
See also Graham v. Rolandson, supra; Hageman v. Tourance
(1965), 144 Mont. 510, 398 P.2d 612.
In allowing this evidence to be admitted the jury was
allowed to speculate concerning the government's
investigation into the K-type wheels, known as the IR-215
investigation, despite the fact that Goodyear voluntarily
discontinued the manufacture of the K-type wheels three
years earlier and despite the fact that NHTSA had no power
to order any of those rims to be recalled. It allowed the
jury to speculate about on the Malek memorandum, and to
surmise, with no evidentiary support, that Goodyear believed
that there was a commitment by the White House prior to
making its contribution. It allowed the jury to conclude,
with no evidentiary basis, that unknown persons in the White
House knew of Goodyear's preferences and were in a position
to order them to be carried out. It allowed the jury to
think, despite all the evidence to the contrary, that Andrew
Detrick was moved to the head the Office Defects
Investigation, the ODI, by the Secretaty of the Department
of Transportation at the direction of unknown White House
employees. Finally it allowed the jury to assume, with no
evidence to support the assumption that Detrick closed the
IR-215 investigation in 1972 differently than those closed
by his predecessor. We find no evidence to support these
conclusions, much less proof that these inferences and
conclusions are reasonable or even probable. The evidence
of Goodyear's contribution should not have been submitted to
the jury under Rule 402, Mont .R.Evid.
Unquestionably, the plaintiff's allegations of
political bribery were prejudicial to the appellant
Goodyear. Circumstances pertaining to the Watergate
investigation and subsequent name dropping of the notorious
parties had no connection with the cause of action. As
previously noted, the trial court observed, "advice of ...
mentioning Watergate and all the rest of it is inherently
prejudicial." The court also noted that the prejudice of
putting such evidence before the jury outweighed its
probative value.
As we review the order of the District Court in the
present case, we conclude that it is possible that the trial
judge misunderstood our holding in Kuiper v. The Dist. Court
of the Eighth Judicial Dist. (Mont. 1981), 632 P.2d 694, 38
St.Rep. 1288. In that holding, we allowed the plaintiff
considerable latitude in discovery including, taking the
depositions of Goodyear executives and requesting production
of documents. However, our holding in that case did not in
any manner reduce the duty of the District Court to pass
upon the admissibility and relevancy of information produced
in the course of discovery.
Last we consider as a part of issue 1 the
admissibility of the DeYoung videotape. On retrial this
tape should not be played to the jury. It fails to show
anything directly connected with the K-type wheel
i n v e s t i g a t i o n o r t h e a c c i d e n t which i s t h e s u b j e c t of t h i s
action. S e e Montana Rules of Evidence 402 and 403; 31

C.J.S. Evidence, S e c t i o n 108.

After a careful review of the extensive record

including the transcript, we conclude that the District
C o u r t e r r e d i n a d m i t t i n g i r r e l e v a n t and p r e j u d i c i a l e v i d e n c e

of t h e Goodyear p o l i t i c a l c a m p a i g n c o n t r i b u t i o n and a l l o f
the evidence relating to Watergate. In reaching that
c o n c l u s i o n , w e d o n o t i n a n y way c o n d o n e t h e s u r r e p t i t i o u s

contribution of $40,000 by Goodyear to the Committee to

Re-elect the President. T h a t was g r o s s l y i m p r o p e r c o n d u c t .
Similarly, we do not in any way approve or condone

Watergate, including the participants and their actions,
which were s o g r a p h i c a l l y d e s c r i b e d t o t h e jury. That is a

national s c a n d a l of which none o f u s a r e proud. The k e y
e l e m e n t is t h a t p l a i n t i f f completely f a i l e d t o connect t h e

political contribution of Goodyear to the federal
investigation of the multi-piece wheels. The plaintiff
failed t o prove that t h e c o n t r i b u t i o n was related i n any

manner t o t h e m u l t i - p i e c e w h e e l , which e x p l o d e d and c a u s e d

the injury to the plaintiff. W agree with the D i s t r i c t
e

C o u r t ' s c o n c l u s i o n t h a t t h i s e v i d e n c e was e x t r e m e l y d a m a g i n g

and obviously inflamatory in nature and should have been
admitted only upon proof showing its relevance to the

present action. The r e c o r d d i s c l o s e s a total failure to
e s t a b l i s h such relevance. The p o s s i b i l i t y o f p r e j u d i c e i s
c l e a r l y p r e s e n t upon t h e e x a m i n a t i o n o f t h e v e r y s u b s t a n t i a l
punitive damages. We regret that counsel deemed it

necessary to bring in this totally extraneous and
prejudicial material. It prevented his seriously-injured
client, as w e l l as the defendant, from receiving a fair
trial.

The s e c o n d i s s u e t o b e c o n s i d e r e d i s w h e t h e r t h e t r i a l

c o u r t e r r e d i n a d m i t t i n g i r r e l e v a n t and p r e j u d i c i a l e v i d e n c e
of other accidents. This issue is subdivided into

sub-paragraphs. We will direct our attention to those
sub-paragraphs covering material that should not be

c o n s i d e r e d on r e t r i a l . I n R u n k l e v . The B u r l i n g t o n N o r t h e r n
(Mont. 1 9 8 1 ) , 613 P.2d 982, 37 St.Rep. 995, t h i s Court set

forth the test for determining the relevancy of "other
accidents" evidence. The admissibility test for such

evidence is to whether the circumstances surrounding the
p r o d u c t i n v o l v e d i n o t h e r a c c i d e n t s were s u b s t a n t i a l l y t h e

same o r s i m i l a r t o t h e a c c i d e n t a t i s s u e . This r u l e should
be t h e g u i d e f o r the t r i a l c o u r t on r e t r i a l . A concerted
e f f o r t s h o u l d b e made by t h a t c o u r t t o a l l o w t h e a d m i s s i o n

o f e v i d e n c e of o n l y t h o s e a c c i d e n t s w h e r e b o t h t h e p r o d u c t

and t h e c i r c u m s t a n c e s s u r r o u n d i n g t h e a c c i d e n t w e r e s i m i l a r
t o t h e case a t bar. In a products l i a b i l i t y case t r i e d i n

the federal court, Rexrode v. A m e r i c a n L a u n d r y P r e s s Co.
(10th C i r . 1 9 8 2 ) , 6 7 4 F.2d 826 a t 8 2 9 , t h e c o u r t h e l d t h a t

s u b s t a n t i a l s i m i l a r i t y is r e q u i r e d i n o r d e r t o " p r e v e n t t h e
j u r y f r o m b e i n g m i s l e d , " and t h e c o u r t f u r t h e r h e l d t h a t t h e
party offering the "other accidents" bears t h e burden of
showing s u c h s i m i l a r i t y .

With these rules, the trial court can on retrial
carefully protect the record of admissions of the
respondents here.
I s s u e No. 5 i s d i r e c t e d t o w h e t h e r t h e c o u r t c o m m i t t e d
e r r o r i n d e n y i n g a new t r i a l f o r t h e a l l e g e d m i s c o n d u c t o f

the bailiff. T h i s i s s u e is d i s c u s s e d p r i n c i p a l l y b e c a u s e
t h i s case is being remanded f o r retrial. While the fact

s i t u a t i o n involved h e r e i n might n o t n e c e s s i t a t e a r e v e r s a l

on t h i s i s s u e a l o n e due t o the f a c t that the defendant's

c o u n s e l l e a r n e d of t h i s m i s c o n d u c t w h i l e t h e j u r y was s t i l l
out and failed to bring the matter immediately to the

a t t e n t i o n of t h e t r i a l c o u r t , it i s o f s u c h i m p o r t t h a t w e

u r g e t h e t r i a l judge t o i n s t r u c t t h e b a i l i f f s of the court
t o f o l l o w t h e s t a t u t e a s t o t h e i r d u t i e s and n o t communicate
with the jurors during t h e i r discussions.

The p e t i t i o n f o r a new t r i a l a l l e g i n g t h e m i s c o n d u c t
of the bailiff was made under PICA, 25-11-102, which

provides :
" G r o u n d s f o r new t r i a l . The f o r m e r
v e r d i c t o r o t h e r d e c i s i o n may b e v a c a t e d
and a new trial granted on the
a p p l i c a t i o n of t h e p a r t y a g g r i e v e d f o r
any of t h e f o l l o w i n g c a u s e s m a t e r i a l l y
a f f e c t i n g t h e s u b s t a n t i a l r i g h t s of s u c h
party:

" ( 1 ) i r r e g u l a r i t y i n t h e proceedings of
t h e c o u r t , j u r y , or adverse p a r t y o r any
o r d e r of t h e c o u r t o r abuse of d i s c r e t i o n
by which e i t h e r p a r t y was p r e v e n t e d f r o m
having a f a i r t r i a l ; "

Here the affidavit of counsel for the defendant

Goodyear s t a t e d t h a t , (1) t h e b a i l i f f t o l d t h e j u r o r s n o t t o
" g e t hung up" on t h e i n s t r u c t i o n s i n d e c i d i n g t h e c a s e ; a n d ,

(2) during the deliberations while several jurors were
t r y i n g t o a p p l y t h e i n s t r u c t i o n s , t h o s e j u r o r s were reminded

by another juror of what the bailiff had said about not
" g e t t i n g hung up" on t h e i n s t r u c t i o n s ; a n d , ( 3 ) t h e b a i l i f f ,

upon being informed by a juror that there were "four
h a r d - n o s e d women i n t h e r e you c a n ' t g e t a n y t h i n g d o n e w i t h , "
responded, "well, can't you work around them?" and, (4) when
a juror gave the bailiff a written question about an
instruction, the bailiff stated that the question was
"self-explanatory." Such conduct by a bailiff cannot be
tolerated.
The appellant next argues the question of instructions
given, and whether the court erred in submitting
instructions 13, 27 and 41 to the jury, and that these
instructions did not include "without substantial change and
condition" as an essential element of the plaintiff's proof.
This Court entered into the age of product liability
in 1973 with its opinion in Brandenburger v. Toyota Motor
Sales, U.S.A.. Inc. (1973), 162 Mont. 506, 513 P.2d 268. In
that opinion, we adopted Section 402A of the Restatement of
Torts (2nd Ed.), as the applicable law in Montana for strict
product liability cases.
That opinion was further developed in a case of this
Court that came down five years later, Brown v. North
American Manufacturing Company (1978), 176 Mont. 98, 576
P.2d 711. Many of the arguments of defense counsel in this
case were made in Brown. This is particularly true as to
the argument of appellants that the danger was "open and
obvious" and that the product was not "defective" or
"unreasonably dangerous" if the danger, occasioned by the
use, is open and obvious to the user.
As we noted in Brown, supra, the appellant advanced
the "open and obvious danger," or "patent-latent" rule as a
bar to the plaintiff's recovery under the theory of strict
liability. There we rejected such rule noting also that it
had been rejected by many other jurisdictions.
 We held in Brown, that the "open and obvious dangern
rule is not contained in 2 Restatement of Torts (2nd Ed.)
Section 401A, nor in the comments thereto. The source of
that rule was a New York case, Campo v. Scofield (1950), 301
N.Y. 468, 95 N.E.2d 802. However, that rule was abandoned
by the New York Court of Appeals in a later case, Micallef
v. Miehle Co., Division of Miehle-Goss Dexter, Inc. (1976),
39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571.
In Brown, following the better reasoned cases, we held
that such a rule would operate to encourage misdesign. The
fact that it was a patent danger does not prevent a finding
that the product is in a defective condition or unreasonably
dangerous to the particular plaintiff. Rather, the obvious
character of the defect or danger is but a factor to be
considered in determining whether the plaintiff in fact
assumed the risk. We held in Brown, supra, that, "a showing
of proximate cause is a necessary predicate to plaintiff's
recovery in strict liability." Strict liability is, of
course not "complete liability without fault." There is no
absolute immunity. Plaintiff's behavior may result in a
break in the chain of causation and operate to bar recovery
as discribed in 2 Restatement of Torts (2d Ed.), Section
402A, comment (n).
We further hold that the above standard of conduct,
set forth in Section 402A, comment (n), of plaintiff as
related to the injury must be considered on the assumption
of risk when applied to strict liability cases. We further
hold that in considering assumption of risk in strict
liability cases, the actions of the plaintiff are to be
judged by applying a subjective standard to plaintiff Is
conduct rather than the objective standard of a reasonable
man.
The evidence produced in this case, including t l ~ ~ ?
appellant Goodyear's records and records from federal.
government investigation of the rim design, indicates that
there were numerous accidents experienced over a
considerable period of time involving the K-type rim.
Testimony from both the Goodyear engineers and plaintiff's
experts, as well as Goodyear's field surveys and their
conclusions, indicates that the K-type rim was an inherently
and unreasonably dangerous design, and that for some years
Goodyear had knowledge of that fact. Part of the testimony
of Goodyear's expert, a field engineer, R.M. Smith, showed
that the parts of the rim were "inherently dangerous both on
the highway and in the shop. When in use, the dangerous
condition is often masked." In this case, the appellant
does not raise the question of sufficiency of the evidence
of design defect. There was no issue presented in the case
of intervening alteration in the design of the product.
Goodyear's design engineer, Gerhart Gerbeth, testified that
he could find no evidence of any indication that anyone had
changed Goodyear's design of either the rim or the ring,
either or both of which could have contributed to the
explosion that injured the plaintiff.
Appellant Goodyear contends that instruction no. 13 is
erroneous in omitting the language requiring that the
"product reached Dennis Kuiper without substantial change in
the condition in which it was sold." However, appellant in
this instruction did not submit the defective condition of
the product, but rather that the product was defectively
designed.
Appellant objects to instruction no. 13 which states:

"You are instructed that in order to
recover on the allegation of design
defect, the plaintiff must prove:
"First, that the defendant designed and
manufactured the K-type rim base and ring
which at the time of manufacture was
defective in design and unreasonably
dangerous to the user.
"Second, that at the time of the accident
the K-type rim base and ring were being
used by Dennis Kuiper in a manner
reasonably anticipated by the defendant.
"Third, that the defective design in the
K-type rim base and ring proximately
caused injury to the plaintiff."
Appellant argues that the instruction omits the
requirement that the product be shown to be in substantially
the same condition at the time of injury as it was at the
time it left the manufacturer's hands.
The correct law governing plaintiff's proof in a
design case is found in Brown, 176 Mont. at 105, 106, 576
P.2d at 716, we stated:
"[l] In order to establish a prima facie
case in strict liability based upon the
above definition, a plaintiff must prove
the following elements:

(1) The product was in a defective
condition 'unreasonably' dangerous to the
user or consumer;
(2) The defect caused the accident and
the injuries complained of; and

(3) The defect is traceable to the
defendant."
Court's instruction no. 13 requires the jury to find
that the product was defective in design at the time of
manufacturing. This satisfies the three-prong test for a
prima facie case in strict liability, which is the third
element of the plaintiff's case set forth in Brown, supra.
F e find that all of the elements of the design defect case
J
are set forth in Brown and are incorporated in the
instruction no. 13.
At this point we note that the respondent cites as
authority in its brief, Kuiper v. District Court of the
Eighth Judicial Dist., supra, for the proposition that said
case sets forth the elements of strict liability for
defective design and failure to warn. The respondent
further bases much of his argument on a citation allegedly
made in Kuiper to that effect. We note that the action in
Kuiper was one of supervisory control directed to the
discovery of certain documents and compelling answer
thereto.
In rejecting Goodyear's argument denying his motion
for new trial, the trial court very carefully considered the
objections to the above two instructions and set forth his
reasons for denying the same. We concur in the trial
judge's holding and find no error. The trial judge noted in
denying the motion for new trial that,

"There is no requirement that a design
remain in substantially the same
condition since obviously the design of
the product does not change from the date
of its original manufacture, absent some
modification in design which was not an
issue in this case.
"This issue is considered at length
during the instruction conference between
the court of counsel and it is the
court's concerted opinion that in a
[product liability] design case, the
changes in the product through wear,
tear, or even abuse do not affect the
question of whether the original design
was defective and unreasonably dangerous.
Design is judged not by the condition of
 the product, but the state of scientific
and technical knowledge availabe to the
designer at the time the product was
place on the market."
Goodyear acknowledged this proposition in its offered
instuction 27(a), which was court's instuction no. 14.
"If the design was defective and that
defect proximately caused the accident,
any design changes and condition of the
rim during the prior uses are irrelevant
and would not preclude the plaintiff's
recovery for design defect. * * *"
The Court notes that Goodyear's proposed instruction
25(a), given as court's instruction no. 24, uses the word
"anticipate" and resolves any possible confusion or
misdirection regarding substantial change by requiring a
finding in favor of Goodyear. If the jury determined the
product was not defective and unreasonably dangerous when it
left Goodyear's control, but was made dangerous by
subsequent alteration, change, improper maintenance, abuse,
or abnormal use, which the manufacturer could not reasonably
anticipate, there would be no liability. These instructions
were read together, and in light of the evidence of the case
make it clear that Goodyear could not be held liable for
defects in the product occurring after it left Goodyear's
control, as opposed to design defect. Both instructions are
correct statements of the law.
Obviously, the trial judge here instructed the jury to
the effect of subsequent alteration or change, but they were
cautioned that the law does not presume that the product was
in defective condition at the time it left the hands of the
manufacturer. Instruction no. 20, stated that the lapse of
time from the date of the manufacture to the date of the
accident, was a factor to be considered; instruction no. 22,
t h a t t h e m a n u f a c t u r e r is n o t r e q u i r e d t o p r o d u c e o r s e l l a

p r o d u c t t h a t w i l l n e v e r wear o u t ; i n s t r u c t i o n no. 23, that
i n o r d e r t o r e c o v e r , t h e p l a i n t i f f had t o p r o v e t h a t t h e r i m
base and ring were being used in manner reasonably
a n t i c i p a t e d by G o o d y e a r ; i n s t r u c t i o n no. 13, t h a t t h e jury

m u s t f i n d t h a t t h e p r o d u c t was d e f e c t i v e i n d e s i g n a t t h e
t i m e of manufacturing i n o r d e r f o r p l a i n t i f f t o recover.

Not o n l y w e r e t h e s e i n s t r u c t i o n s p r o p e r s t a t e m e n t s o f
the law in product liability in Montana, but they were
properly given i n t h i s case. W e f i n d no e r r o r .

We have held in strict liability cases, such as
B r a n d e n b u r g e r , and Brown, t h a t :
"On w h a t e v e r t h e o r y , t h e j u s t i f i c a t i o n
f o r s t r i c t l i a b i l i t y h a s been s a i d t o be
t h a t t h e s e l l e r , by m a r k e t i n g h i s p r o d u c t
for the use and consumption, has
undertaken and assumed a special
r e s p o n s i b i l i t y t o w a r d a n y member of t h e
c o n s u m i n g p u b l i c who may b e i n j u r e d by
i t ; t h a t t h e p u b l i c h a s a r i g h t and d o e s
e x p e c t , i n a c a s e o f p r o d u c t s which i t
n e e d s and f o r which i t i s f o r c e d t o r e l y
on t h e s e l l e r , t h a t r e p u t a b l e s e l l e r s
w i l l s t a n d behind t h e i r goods; t h a t t h e
p u b l i c p o l i c y demands t h a t t h e b u r d e n o f
a c c i d e n t a l i n j u r i e s c a u s e d by p r o d u c t s
intended f o r consumption t o be placed
u p o n t h o s e who m a r k e t t h e m , a n d b e
t r e a t e d a s a c o s t of production a g a i n s t
which liability insurance can be
o b t a i n e d ; and t h a t t h e consumer o f s u c h
p r o d u c t s i s e n t i t l e d t o t h e maximum o f
p r o t e c t i o n a t t h e h a n d s o f someone, and
the proper persons t o a f f o r d it a r e those
who p l a c e d t h e p r o d u c t i n t h e m a r k e t . "

R e s t a t e m e n t of T o r t s ( 2 d E d . ) , S e c t i o n 402A, comment ( c ) , p .

Recognizing t h a t t h e s e l l e r is i n t h e b e s t p o s i t i o n t o
insure product s a f e t y , t h e law of s t r i c t l i a b i l i t y imposes
on t h e s e l l e r a d u t y t o p r e v e n t t h e r e l e a s e of "any p r o d u c t "
in the defective condition unreasonably dangerous to the
user or the consumer, "into the stream of commerce." See
Restatement of Torts (2d Ed.), Section 401(a)(65). This
duty is unknown in the law of negligence and it is not
fulfilled even if the seller takes all reasonable measures
to make his product safe. The liability issue focuses on
whether the product was defective and unreasonably
dangerous, not only upon the conduct of the user or the
seller. Put in this light, the only duty imposed on the
user is to act reasonably with respect to the product which
he knows to be defective and dangerous. It is only when the
user unreasonably proceeds to use a product which he knows
to be defective and dangerous, that he violates this duty
and relinquishes the protection of the law.
In summary, assumption of risk is an available defense
in a strict liability case. The defense must establish that
plaintiff voluntarily and unreasonably exposed himself to a
known danger. If the defense is found to exist then
plaintiff's conduct must be compared with that of defendant.
The same Montana law which governs comparison of
contributory negligence controls comparison of assumption of
risk.
The policies of negligence and warranty liability will
best be served by keeping the spheres in which they operate
separate until such time as the legislature indicates how
and by what extent they are to be changed. The standards of
care and the duties are well-defined in each sphere.
We have carefully examined the many issues raised
on this appeal, and except to the issues here addressed, we
find further discussion of these issues unnecessary.
However, under the facts and circumstances herein recounted,
i t c a n o n l y be s a i d t h a t t h e i r r e l e v a n t p o l i t i c a l e v i d e n c e

affected t h i s jury. I t t a k e s no f a n c i f u l f l i g h t t o p e r c e i v e

the strong probability of prejudice to the defendant

preparing t o defend a product l i a b i l i t y cause.

It is understandable for persons witnessing the

e n o r m i t y o f t h e m i s c o n d u c t o f t h e o f f i c i a l s o f Goodyear T i r e

& Rubber Company, i n its e f f o r t s t o re-elect R i c h a r d Nixon

t o h o l d t h e i r f e e t t o t h e f i r e a n d make them p a y f o r t h e i r

misdeeds. T h a t i s n o t t h e problem t h i s C o u r t had t o f a c e i n

deciding t h i s case.

The f i r s t J u s t i c e H a r l e n s p e a k i n g f o r t h e c o u r t i n t h e

case of Vicksburg and Meridan Railroad Co. v. O'Brien

( 1 8 8 6 ) , 119 U.S. 99, 1 0 3 , 7 S.Ct. 172, 174, 30 L.Ed. 299,

300, s t a t e d :

"While t h i s c o u r t w i l l n o t d i s t u r b a
judgment f o r an e r r o r t h a t d i d n o t
o p e r a t e t o t h e s u b s t a n t i a l i n j u r y of t h e
p a r t y a g a i n s t whom i t was c o m m i t t e d , i t
is w e l l - s e t t l e d t h a t a r e v e r s a l w i l l be
d i r e c t e d u n l e s s i t a p p e a r s beyond a d o u b t
t h a t t h e e r r o r complained o f d i d n o t and
could n o t have p r e j u d i c e d t h e r i g h t s of
the party."

S e e a l s o , Goff v . K i n z l e ( 1 9 6 6 ) , 1 4 8 Mont. 6 1 , 417 P.2d 105.

T h i s c a u s e i s remanded f o r a new t r i a l .

W concur:
e

74?@U&\
Chief J u s t i c e
Justices

Mr. Justice L.C. Gulbrandson specially concurring.

I concur with the result expressed in Mr. Justice John
Conway Harrison's Opinion, but not with the comments

expressed therein which reaffirm an abandonment of the
defense of assumption of risk enunciated in 2 Restatement of

Torts (2d Ed.), Section 402A, comment (n). ,/
/ /
Mr. Justice Frank B. Morrison, Jr. dissents as follows.
I very vigorously dissent from that aspect of the
majority opinion relating to Goodyear's political activities.
The serious departure from evidentiary standards found in the
position results from an emotional reaction
"Watergate". From time to time the judicial vision of even
appellate judges becomes clouded. Sadly, this is one of
those times.
Let us forget about political partisanship. Let us not
debate the morality of the Nixon administration. This is a
court of law. Well recognized evidentiary principles exist
and properly applied, they control the resolution of this
issue.
The applicable legal principles are:
1. In civil actions, a trial court has wide
discretion in admitting circumstantial evidence and
its ruling will not be disturbed on appeal absent a
showing of abuse of discretion. Unified School
District #490, Buttler County v. Celotex Corp.
(1981), 6 Kan. App.2d 346, 629 P.2d 196; Barmeyer
v. Montana Power Co. (1983), 657 P.2d 594, 40
St.Rep. 23.
2. Circumstantial evidence sufficient to prove a
fact in a civil cause need not exclude every
reasonable conclusion other than the conclusion
sought to be established. Plaintiff's evidence is
sufficient if it affords a basis for a reasonable
inference by the trier of fact although there are
other reasonable inferences which might be drawn by
that trier of fact. Jacques v. Montana National
Guard (1982), 649 P.2d 1319, 39 St.Rep. 1565.
3. Fraudulent, dishonest and dishonorable conduct
cannot often be proven by direct evidence.
Therefore, the courts grant great latitude to the
one having the burden of proof. Facts which throw
suspicion on a transaction or course of dealing are
admissible even though a certain amount of
speculation is necessarily involved when drawing
inferences from those facts. Montana National Bank
v. Michels (1981), 631 P.2d 1260, 38 St.Rep. 334;
Merchants National Bank v. Greenhood (1895), 16
Mont. 395, 41 P. 250.
 The evidence which the majority found to be improperly
admitted, and which will be excluded from the future trial,
can be summarized as follows:
In April of 1970, the PJational Highway Traffic Safety
Administration had instituted an investigation of K-rims.
The stated purpose of the investigation was to determine
whether the problem represented a safety defect within the
meaning of the National Traffic and Motor Vehicle Safety Act
of 1966 (tr. 1894). The investigation was known as OBI-215.
The investigation was officially closed on December 31, 1973,
without a consumer notification or recall campaign
(plaintiff's exhibit 37, tr. 1893 and 1899).
There is no question that Goodyear was seriously
concerned about the investigation and the potential of having
to notify consumers that K-rims were dangerously defective.
There were 2,900,000 K-type rims in service in 1972-73 (tr.
3181) . Joseph Hutchison, the head of safety for Goodyear,
estimated the cost of replacing K-rims at $50 apiece (tr.
1712). The cost of a recall would reach the magnitude of
$145,000,000. Hutchison, the head of safety, characterized
the investigation of K-rims as an "overwhelming problem"
(plaintiff's exhibit 72) . A Goodyear engineer researching
the problem, was told by the Department of Transportation
that the investigation had "top priority" (tr. 3735-36) .
The person who, prior to March of 1972, had headed the
office of defects investigation for NHTSA was one Joseph
Clark. In February and March of 1972, Goodyear executives
had negotiated a cash contribution to the Committee for
Re-election of the President. Initially, Goodyear offered
$20,000. Maurice Stands rejected this offer and said that he
hoped for $50,000. Thereafter, a Goodyear vice president
named Arden Firestone carried cash and checks totaling
approximately $45,000 to the Committee to Re-elect. This was
done March 14, 1972. Three days later, on March 17, 1972,
Carter was removed from his position and transferred to Ohio.
He was replaced by Andrew Detrick, who was placed in charge
of the office of defects investigation though he had no
background in that kind of work.
In early August, 1972, Joseph Hutchison met in
Washington with Andrew Detrick to lobby him regarding the
K-rim investigation. After Hutchison's first meeting with
Detrick, he wrote a letter summarizing his meeting as
follows:
"Detrick stated that he feels a safety problem
exists on these multi-piece truck rims, and that he
would like to handle this problem before it gets
any more publicity."
In the months that followed, Goodyear executives lobbied
Detrick against requiring a manufacturers' notification
campaign. Investigation 215 was officially closed on
December 31, 1973, without requiring consumer notification.
The closing of investigation 215 resulted from a
recommendation by Andrew Detrick. Detrick briefed the
administrator of the National Highway Traffic Safety
Administration and the job was accomplished.
The facts here are very simple. The decision to move
Detrick in as head of product defects investigation was made
by the Nixon administration. It was a political decision
pure and simple. The move occurred several days after a
$45,000 contribution was made to the campaign. To say that
this evidence cannot be considered by a jury because, as a
matter of law, there is no connection between the
contribution and the personnel change, is to totally fail in
recognizing the realities of the political process.
 All of the activities of Goodyear in attempting to
influence government action are admissible for one or more of
the following reasons:
(1) The evidence shows that Goodyear had knowledge of
the defect.
(2) The evidence shows that Goodyear was not taking
steps to notify the public of the known defect, but in fact
was attempting to scuttle any notification.
(3) The evidence tends to prove fraud, malice, or
oppression, which form the basis for an award of punitive
damages.
In Kuiper v. District Court (19811, 632 P.2d 694, 38
St.Rep. 1288, we said:
"That investigation was commenced in 1970 for the
purpose of determining why K-type truck rims seemed
to cause numerous accidents. The relator seeks to
establish that Goodyear attempted, through
government influence, to terminate the
investigation. The relator alleges that Goodyear
'covered up' the defect in a product, which
Goodyear knew to be unsafe, and that the relator is
entitled to prove such facts to establish a basis
for punitive damages." 632 P.2d at p. 696, 38
St.Rep. at p. 1289.
And,
"Relator's deposition questions are designed to
prove Goodyear knew it had a defective product and
attempted to prevent public knowledge of that
defect. Such facts would - -to prove malice and
tend
are relevant to the issues ~leaded." (em~hasis -
L

added) 632 p . 2 T a F p . 703, 3g ~ t . ~ e ~ - . 1298.
at p.
Likewise, the District Court held this evidence to be
admissible and in the order denying Goodyear's motion for a
new trial, on pages 15 and 16 of the order, said:
"In these circumstances Goodyear's motions in
limine must be denied in that the facts established
a submissible jury issue on the basis that the
slush fund payments were evidence of an attempt to
abort the spirited investigation at the NHTSA as
proof of defect in the product. - - Matter of
In the
the National Deposition of James D. Rhoades (i)
sc,
Archivist - - united States, ~iscellaneous No.
of the
79-0216, United States District Court for the
District of Columbia, October 1, 1980. Such
 evidence was also admissible on the issue of
malice. Kuiper v. District Court, Mont.
, 632 P.2d 694 (Mont. 1981)."
Dishonest conduct can seldom be proven with direct
evidence. The difficulties of the task are eloquently
described by Justice De Witt in Merchants' National Bank v.
Greenhood, supra, wherein he said:
"Fraud cannot often be proven by direct evidence.
Fraud conceals itself. It does not move upon the
surface in straight lines. It goes in devious
ways. We may with difficulty know 'whence it
cometh and whither it goeth.' It 'loves darkness
rather than light, because its deeds are evil.' It
is rarely that we can lay our hand upon it in its
going. We are more likely to discover it at its
destination, before we know that it has started
upon its sinuous course. When we so discover it,
the search light of a judicial investigation goes
back over its trail and lightens it from beginning
to end. As the woodsman follows his game by slight
indications, as a broken twiq or a displaced
pebble, so fraud may become apparent by innumerable
circumstances, individually trivial . . .
but in
their mass 'confirmation strong as proofs of holy
writ.' The weight of isolated items tending to
show fraud may be 'as light as the shadow of
drifting snow,' but the drifting snow in time makes
the drift, the avalanche, the glacier. Fraud may
hang over the history of the acts of a man like the
leaden-hued atmosphere upon the house of Usher,
'faintly discernible but pestilent, an atmosphere
which has no affinity with the air of Heaven.'" 16
Mont. at p. 429, 41 P. at p. 259.
Justice De Witt, in concluding remarks, stated the scope
of judicial review which should have guided the deliberations
of this Court.
"Under this atmospheric pressure of fraud the jury
in this case lived and breathed for the 21 days of
the trial. We have followed them through the
history of those days, as it is transmitted to this
court in the record. We have not the advantage of
breathing and seeing and hearing which they had.
The district court had that advantage, and agreed
with the findings of the jury. We are of opinion
that, under these circumstances, the evidence is
not so insufficient that we should disturb the
result." 16 Mont. at pp. 429-430, 41 P. at p. 259.
The majority places emphasis upon the fact that the
trial court found that evidence of Goodyear's attempts to
suppress knowledge of the dangerous propensities of its
split-rim and its efforts to scuttle the investigation would
be prejudicial to the defendant. Of course such evidence
would be prejudicial. The purpose of offering the evidence
is to expose the fraud and punish the defendant. The
question is not just whether the evidence is prejudicial, but
rather whether our rules of evidence permit consideration of
the evidence. The evidence here introduced was not only
relevant and probative but was essential to prove a course of
conduct that plaintiff seeks to punish.
If I understand the majority opinion correctly, no
certain piece of testimony or document is found to be
irrelevant, thereby justifying a new trial. Rather, any
evidence, either testimonial or documentary, which falls
under the umbrella designated "Watergate" is to be
suppressed. Like Rosemary's tapes, this evidence of
wrongdoing is erased from public scrutiny and forever
shielded from jury censor.
The majority states: "We regret that counsel deemed it
necessary to bring in this totally extraneous and prejudicial
material. It prevented his seriously-injured client, as well
as the defendant, from receiving a fair trial." In my
judgment trial counsel would have been remiss not to have
presented the evidence of bribery. The failure is not
counsel's. The fault lies here.
As with most dissents, my cry may neither be heard nor
felt. At least my conscience is clear.
*
Mr. Justice John C. Sheehy, dissenting:

I dissent.
My heart does not bleed with the majority for the
captains of industry called Goodyear who were caught in a
sticky wicket. Instead, my heart bleeds for a
grievously-injured Dennis Kuiper who must return yet again to
the courtroom to get just compensation, but this time hobbled
in his proof of the malice of these honorable industry
captains.
The majority of justices see no relevance in this case
in the illegal donation to Nixon's campaign and the almost
immediate dismissal by the Nixon administration of its
investigation of the safety of the K-28 rims. The majority
wants a smoking gun for proof, ignoring the many times in
opinions that each has signed that fraud is almost never
subject to direct proof, because the evil that men do is done
clandestinely, without record, and that circumstantial
evidence is necessary to bring out fraud.
Dennis Kuiper was injured on August 13, 1979. For more
than ten years prior to that date, Goodyear was aware that
its K-28 rim could come apart explosively, and that the rim
posed a danger to the life and limb of any person mounting or
dismounting tires thereon. Properly, Dennis Kuiper has sued
for punitive as well as compensatory damages. Punitive or
exemplary damages are allowed when the tortfeasor has been
guilty of oppression, fraud or malice, actual or presumed,
and are given for the sake of example and by way of punishing
the tortfeasor. Section 27-1-221, MCA. Therefore,
Goodyear's knowledge that it had a dangerously defective rim,
and its efforts to avoid curing that defect or removing the
rim from the market over a period of years is an essential
part of Kuiper's proof of malice against Go0dyea.r. The
sordid donation by Goodyear to Nixon's campaign was a part of
Goodyear's malicious effort to keep its defective product on
the market and in use in spite of its knowledge of the
defect.
The relevance of the Nixon campaign donation by Goodyear
is best summarized by the District Court in this case, in
denying Goodyear's motion for new trial:
". . .A summary of the plaintiff's evidence
includes the undisputed fact that Goodyear for many
years prior to the investigation of the K rim
maintained an offbook account known only by the
code name 'GOYEDA' in a Swiss bank from which funds
were drawn and maintained at Goodyear's world
headquarters in Akron, Ohio for the purpose of
ma-king illegal domestic political contributions.
Goodyear's Board Chairman and general counsel
participated in cash payments of $40,000 to Maurice
Stans, Chairman of the Finance Committee to Reelect
the President (FCREEP) in March of 1972 in
circumstances which give rise to an inference of
attempts to seek political favors. Goodyear became
listed on the document known in the Watergate
investigation as Rosemary's List, a record of
substantial poltical contributors maintained by the
personal secretary of Richard Nixon. - - -
At the--time
of these contributions there - . ~endinabefore the
- was 2

National Highway Traffic Safety Administration
(NHTSA) a defects investigation involving the
2
K rim which - the subiect - this suit=
Goodvear - - is - - of
well as a Firestone multi-piece rim and proposed
rule making which had the potential for limiting or
discontinuing production of most multi-piece truck
rims. Contemporaneous with the cash payments by
Goodyear to 'FCREEP' key personnel in charge of
these proceedings at 'NHTSA' were transferred to
other positions and new personnel of questionable
qualifications were placed in charge of the
proceedings. The defect investigation of the K rim
was thereafter discontinued inconsequentially
following the Nixon reelection and the appointment
of Egil Krogh as Under Secretary of Transportation.
In a memorandum of August 15, 1972, Goodyear's
safety vice-president report to the president of
Motor Wheel Corporation that he had had a
conference with the newly selected chief of the
Office of Defects Investigations at the 'NHTSA' and
was advised that in view of that public official 'a
safety problem exists on these multi-piece truck
rims, and that he (the public official) would like
to handle this problem before it gets any more
publicity. Then followed a meeting with the public
official several days after the Nixon reelection
and the investigation was closed without requiring
any recall of the product. Goodyear's subsequent
conduct in a.ttempting to cover up the existence of
the investigation and effect of the corporate
nature of the contributions is additional evidence
that a quid pro quo was intended. The evidence was
undisputed that following the relevations of the
connection between the Committee to Reelect the
President and the Watergate burglary, the Common
Cause litigation forced the disclosure of identity
of contributors and as a result Maurice Stans
contacted Goodyear general counsel Arden Firestone
requesting the names of the contributors on behalf
of Goodyear. Instead of disclosing to Stans and to
the United States District Court of the District of
Columbia that the cash contributions to FCREEP were
corporate monies, Firestone met with Russell
DeYoung , Goodyear board chairman, and they agreed.
to submit the names of Goodyear executives who
purportedly contributed when in fact they had not
given a single penny. This continued effort to
cover up through misrepresentation of the identity
of the source of the contribution leads to the
inference that Goodyear sought a quid pro quo in
attempting to avoid public disclosure of the fact.
According to DeYoung's testimony before the Ervin
Committee, the videotape which was in evidence, it
was only the pressure from Archibald Cox, Watergate
Specia.1 Prosecutor and the fear of adverse
publicity that caused Goodyear to come forward with
the admission of a corporate contribution.
"Goodyear and its board chairman Russell DeYoung
pleaded guilty to violating the Federal Election
Laws with respect to the contribution. Following
the convictions of Goodyear and its board chairman,
DeYoung was subpoenaed before the Ervin Committee
on November 15, 1973. At that time DeYoung swore
under oath before the Senate of the United States
tha.t: 'at the time the contribution was made, the
company was not engaged in any significant
litigation with the government and was not aware of
any material problems it faced with any branch of
the federal government,' and that the illegal
contribution was merely for the good of the
country. There was no disclosure of the defects
investigation of the Goodyear K multi-piece rim, or
the rule making proceedings involving multi-piece
rims, which were both pending at the time Goodyear
made the illegal payments. The video-tape of the
proceedings which was offered by the plaintiff and
viewed by the jury not only documented the facts of
the payment and denial of the investigations
pending, but the jury had the opportunity to judge
the demeanor and credibility of the Goodyear board
chairman when asked about the reason for the
payment and his explanation thereof. Four days
following DeYoung's testimony before the Ervin
Committee and denial of the existence of any
 pending national investigations at the time the
payments were made, an interna.1 Goodyear memorandum
reported that the same government official who told
Goodyear's safety vice-president that he wanted to
handle the matter without publicity was reported to
have advised that Goodyear should 'sit quietly'
with respect to closing of the K rim investigation
until the government official advised Goodyear what
'its next move should be.' In these circumstances
Goodyear's motions in limine must be denied in that
the facts established a submissible jury issue on
the basis that the slush fund payments were
evidence of an attempt to abort the spirited
investigation at the NHTSA as proof of defect in
the product.. . ."
The District Court's foregoing summary of the evidence
with respect to the campaign donation is brief and correct.
The expanded record before us, so lengthy that we cannot
incorporate it here in full, and so devastatingly connected
to the government's K-rim investigation in 1972 is so
shocking, that no smoking gun is needed. Undoubtedly,
Goodyear was buying its protection through the political
donation.
1llustra.tive of the machinations that were going on
between Goodyear and the administration officials is the
memorandum by its technical manager for product quality and
safety addressed to J. F. Hutchison, vice-president of
Goodyear, on November 19, 1973:
"J. F . Hutchison, vice-president.

"Subject: Rim investigation --
Case -215.
"I have just talked with Andy Detrick [the federal
official in charge] this morning relative to the
closing of the above case.
"As you know there have been a number of questions
raised by Mr. Garbeth as to certain information
which we feel should be held out of the closed
file.
"Mr. Detrick informs me that they have their legal
people working on this and we should sit quiet and
wait until we hear from Detrick as to what our next
move should be. I should add that there is a
question in their own minds as to whether or not
the information they gleaned from our files in
 Akron will be kept out or not, and this is the one
part that their law people are looking into."
The rim investigation was closed by the qovernment in
December 1973.
In light of the foregoing record, it is interesting to
note the testimony of Russell DeYoung, board chairman of
Goodyear before the Ervin Committee on November 15, 1973,
when he stated under oath:
". . . It [the $40,000 contribution] was made
solely because we thought the reelection of the
president was in the best interest of the country.
It was not made with a view to obtaining government
favors. Nor was I pressured in any way into making
it. Goodyear's total business with the federal
government, most of which is obtained at
competitive bidding, constitutes less than 3
percent of its sales. - - - - contribution
At the time the
was - - company was - engaqed in any
- made the - not
significant litigation - - government - -
with the and was
not aware of any material problems - faced with
it
any branch o f - federal government. No Goodyear
- the
employee in charge of government business was aware
of the contribution, and there is no indication
that any government official was made aware of the
contribution." (Emphasis added.)
DeYoungls statement that Goodyear was not aware of a.ny
material problem it faced with the government is an outright
untruth. Its own people estimated that a. recall of the rims
in use would have cost Goodyear approximately $140 million.
The monstrous extent of the evil that was the Nixon
administration is hard for some people to accept. Ten years
later, a syndicated columnist finds Nixon merely "unlucky."
Often one hears that Nixon only did what others have done,
though his actions are an unparalleled trough in our national
ethics. It was expressed in our own conference on this case
that Goodyear could not ha.ve hoped to "buy out" for a mere
$46,000. But Nixon and his coterie were not selling to the
highest bidder, they were selling to any bidder. FCREEP
agent Maurice Stans had set out with a suitcase full of
corporate officials that either wanted to gain government
contracts or to avoid adverse regulation. Favorable
government consideration, or the hope of it, was the bait.
The very nature of Stans' offer should have alerted the
offerees. If they contributed before April 7, 1972, there
would be "no record" because of a hole in the law then
applicable. Stans' undertaking was tailor-made for the
gullible, the greedy and the crooked. That he would come
together with the Goodyear officials was as natural as the
meeting of two moles in the dark.
For truth to tell, the men who ran Goodyear in the early
70's were cheats. They cheated their stockholders by
siphoning into a Swiss bank account discounts accruing from
European purchases, stealing from company profits by that
much. They cheated the I.R.S. by understating company
profits, thus increasing taxes for the rest of us. They
cheated our election laws and soiled our democracy by
illegally coughing up at the command of a corrupt
administration the cash they had smuggled into our country.
They travelled to Washington, D.C. as bagmen, to hand-deliver
the illicit lucre like truckling sycophants. Their lawyers
now tell this Court that these cheats made their dark,
forbidden contributions of stolen money under cover of
unlawful secrecy to achieve "good government." And strange
to tell, there are judges who see no dispute for a jury in
that. Thieves and brigands, these cheats find a haven in the
very institutions they would have torn up by the roots. No
whisper of their chicanery in hiding the death-dealing K-rims
shall echo in the next District Court. Hidden from the next
jury and the fierce light of its scrutiny is the sordid story
of venal men who did not give a snap for human safety, for
working men like Dennis Kuiper. In the sanitized next trial,
the Goodyear blimp will float in pristine blue, far above the
wiles and schemes of its ground crew. I know not what other
trenchant orders may issue while I sit on this Court, but I
pray that someday some grandchild will read and be glad that
I had none of this.
There is other manifest error in the majority opinion.
It is needless for me to comment on it, as any comment would
go unheeded as is this comment. It is enough to say that I
would affirm the judgment of the District Court.

-
&@ >&?-
, .
.
Justice u
Mr. Justice Daniel J. Shea, dissenting:

By a simple stroke of the pen, and by a failure to
fairly analyze the evidence, the majority declares that
plaintiff failed to show a connection between the 1972
Goodyear contributions to the Committee to Re-elect the
President and the government's decision later that vear,
after President Nixon had been re-elected, to quietly end the
government's multi-piece rim product safet.y investigation.
The maiority sta.tes (pp. 15-16) :
"Our careful review of the very extensive record,
shows a total absence of evidence connecting the
political contribution of Goodyear to the
investigation by a federal agency of multi-piece
rims of the type which injured the plaintiff. As a
result, it is clear that the evidence of Goodyear's
contribution to the Committee to Re-elect the
President was inadmissible under Rule 402,
M0nt.R.Evi.d."
This conclusion arrived at by reviewing the testimony of
Mr. Malek in isolation, could not be farther from the truth.
Justices Morrison and Sheehy have amply set forth the
contrary evidence, evidence that fully justified the jury n
'
inferring the necessary facts in a. circumstantial case, to
awa.rd exemplary damages zga.instGoodyear.
It was not merely a coincidence that the National
Highway Traffic Safety Administration closed its official
investigation on December 31, 1:973, less than two months
after the re-election of President Nixon, thereby avoiding an
expensive consumer notification program or possibly even a
government request that Goodyear voluntarily reca.11 its K-rim
wheels.
Goodyear was vita-lly concerned about the investigation
and the ramifications of notifying consumers that the K-rim
wheels were dangerously defective. The proiected cost to
Goodyear was 145 million dollars, and it was characterized as
an "overwhelming problem." Goodyear was fully aware that the
governmental investigation had top priority--hut then the
Goodyear people went to work.
In February and March 1972, Goodyear made its
contributions to the Committee to Re-elect the President.
Three days after these contributions, the person who headed
the investigation for the government, Joseph Clark, was
removed from his position and transferred to an innocuous
position in Ohio. His replacement, Andrew Detrick, had no
background in product defects investigation.
After Detrick's appointment and a few months after the
contributions (August 1972), a Goodyear representative,
Joseph Hutchinson, met with Detrick to discuss the K-rim
wheel investigation. This Goodyear agent later summarized
this meeting in a memo to his company, by explaining that
Detrick indeed felt a safety problem existed (for the wheels
still being used by the public) but "that he [Detrick] would
like to handle this problem before it gets publicity." By
the end of December this task was accomplished.
In the following months after August Goodyear executives
succeeded in lobbying Detrick against a governmental
requirement that Goodyear notify purchasers of the potential
hazards of the K-rim wheels. In late December 1972, after
President Nixon was re-elected and while Egil Krogh was
Undersecretary of the Department of Transportation, the
government quietly announced that the multi-piece wheel
investigation was ended.
Goodyear's political contributions took on added meaning
because of the revelations during the Watergate episode, and
especially revelations before the Ervin Committee
investigating the Watergate Hotel break-in and its
ramifications. These developments proved that Goodyear
attempted. to cover up the source of the corporate
contributions to the Committee to Re-elect the President. It
was also established that Goodyear attempted to cover up the
significance of the contributions by the testimony of its
chairman, who testified that when the contributions were made
Goodyear was not involved in significant proceedings with the
government. But it was revealed that Goodyear had two rather
significant proceedings pending with the government, both
proceedings involving multi-piece wheel rims--wheel rims like
the one that burst apart and grievously injured Dennis
Kuiper .
Post-election Watergate investigations developed the
connection between the Watergate burglary and the Committee
to Re-elect the President--that is, the Committee, directly
or indirectly, brought about the Watergate burglary. After
these revelations, Goodyear was asked to reveal its
contributors, but Goodyear, throuqh Chairman DeYoung and
Arden Firestone, decided that instead the corporation would
claim that corporate officers had individually given the
money rather than the corporation. This evidence was given
to the Ervin Committee. This continuing coverup is
circumstantial evidence that the jury was entitled to hear as
bearing on the motivations of Goodyear in making the
contributions to the Committee to Re-elect the President.
Through a videotape of Goodyear Chairman DeYoung's
testimony before the Ervin Committee, the jury saw and heard
his falsifications. He admitted that it was only pressure
from the Special Prosecutor Archibald Cox and fear of adverse
publicity that Goodyear was finally persuaded to admit that
the contributions were actually corporation contributions.
The Goodyear chairman was asked whether these contributions
were motivated by ulterior motives and Chairman DeYoung
replied that the contributions were motivated solely "for the
good of the country." Yet he testified falsely in stating
that when, the contributions were ma.de, no governmental action
of any consequence was pending. The uncontradicted and
undeniable evidence was that two significant government
proceedings were pending regarding the mu1ti-rim wheels.
First, the government was conducting the multi-rim wheel
defect investigation, and the Goodyear company projected a
government ordered consumer notification program to cost
Goodyear at least 145 million dollars. Second, the
government also had pending rulemaking proceedings involving
multi-piece wheel rims. Both government proceedings involved
the same kind of multi-piece wheel rims that burst apart into
Dennis Kuiper's head.
Although the majority would grant a new trial and order
that evidence of the government investiga.tion of the
multi-piece wheel rims and political contributions of
Goodyear be excluded nowhere does the majoritv discuss the
evidence that was admitted at trial. Instead, the majority
focuses on the opening statement of plaintiff's counsel and
on the testimony of Mr. Malek before the Ervin Committee. As
a result of this selective focusing, the majority declares:
.
". . The key element is tha.t plaintiff completely
failed to connect the political contribution of
Goodyear to the federal investigation of the
multi-piece wheels. The plaintiff failed to prove
that the contribution was related in any manner to
the multi-piece wheel, which exploded and caused
the injury to the plaintiff." (Slip op. at 19.)
I am not sure I understand this conclusion by which the
majority declare that plaintiff's proof failed. The
conclusion appears to have two parts, but I do not believe
that as to the second part, the majority truly mean what it
says. In the first sentence, the majority states that
plaintiff did not establish the connection between the
political contributions and governmental multi-piece wheel
investigation. If this is the key conclusion, it could only
have been reached by ignoring the evidence set forth by
Justices Morrison and Sheehy in their dissents. But if in
the second sentence the majority is stating that plaintiff
had a duty to prove the contributions were made to influence
governmental action on the particular wheel rim that injured
plaintiff, the majority has placed an impossible burden on
all plaintiffs, for that kind of proof is impossible. I do
not, however, believe that the majority would impose such a
requirement, although by the language used, it appears that
it has.
Assuming that the majority holding is confined to the
conclusion that plaintiff did not prove the connection
between the political contributions and multi-piece wheel rim
investigation, how does the majority reach this conclusion?
Reliance is placed on the opening statement of plaintiff's
counsel which failed, in the eyes of the majority, to make
this connection, and on the testimony of Mr. Malek, a member
of the Committee to Re-elect the President, who testified -
he
knew of no connection between the contributions and any
attempt by Goodyear to influence government action on any
matter.
The majority opinion confuses me. The opinion devotes
several pages to quoting parts of the opening statement of
plaintiff's counsel as it relates to the political
contributions and the government investigation of the
multi-piece wheels. The majority also says the opening
statement was defective because it did not set forth the
connection between Goodyear's contributions and the
government's investigation of the wheels manufactured by
Goodyear. The majority then appears to say that because the
opening statement was defective, it ipso facto prejudiced the
trial. And yet the majority does not appear to grant a new
trial because of its declaration that the opening statement
was defective. Rather, the majority grants a new trial, and
orders evidence excluded at the new trial, because the trial
evidence did not establish the connection between the
Goodyear contributions and the government investigation of
Goodyear's multi-piece wheels. To reach this conclusion from
the trial evidence, the majority relies exclusively on the
testimony of Mr. Malek, a member of the Committee to Re-elect
the President. This is hardly classifiable as even-handed
appellate review.
Although the majority devotes several pages of the
opinion to quoting the opening statement of plaintiff ' s
counsel, the opening statement has no bearing on the issues
relied on by the majority to vacate the jury verdict. The
majority orders a new trial based on its perception of the
evidence, presented at trial, not on whether the opening
statement was either defective or prejudicial. The opening
statement is not evidence and it can shed no light on whether
the trial. evidence established the connection between the
political contributions and the government investigation.
Rather than to quote from the opening statement, which is not
used as a basis to grant a new trial, it is the majority's
obl..igation to fairly deal with the evidence presented at
trial--the evidence set forth by Justices Morrison and Sheehy
in their dissents.
REASONS GIVEN FOR THE INADMISSIBILITY OF THE EVIDENCE ARE
ILLUSORY:
Why must the government investigation and political
contribution evidence not reach the eyes and ears of the
jury? The majority lists several reasons, and states in
essence as to each that the jury was allowed to speculate
with no evidentiary foundation, and therefore its conclusions
are unfounded. I believe, however, that sufficient evidence
was presented for the jury to fit the pieces together and
reach its verdict assessing exemplary damages against
Goodyear. I discuss each of the reasons listed by the
majority, which are illusory at best.
What is so important, so vital in Mr. Malek's testimony
that the majority orders a new trial and evidence to be
excluded from the second trial? Malek, a member of the
Committee to Re-elect the President, testified, according to
the majority's summary, that - had
he - knowledge
no of
situations in which "proceedings before any department or
agency were interfered with, influence, or obstructed."
Assuming the truth of this statement, it proves only that -
Mr.
Mal-ek had no knowledge of attempts by re-election committee
members on behalf of Goodyear or other contributors, to
influence government proceedings then pending. Malek's
testimony does not exonerate the entire re-election
committee, it does not exonerate the officials of the
Department of Transportation, and it certainly does not
exonerate the Goodyear officials.
On its face, and considered in an evidentiary vacuum,
Malek's testimony establishes nothing for or against
plaintiff. But when considered with other testimony and
evidence admitted at trial, Malek's testimony was not
irrelevant. The jury was entitled to conclude, based on all
the evidence, that Malek's testimony before the Ervin
Committee was simply another effort to cover up and therefore
should be given no weight. Or, alternatively, if the jury
believed Malek's testimony before the Ervin Committee, the
jury was entitled to conclude that Malek was walking through
those times wearing a blindfolder and earplugs.
And now to the reasons given for the inadmissibility of
the governmental investigation and political contribution
evidence.
First, the majority says the jury was impermissibly
allowed to speculate on the K-rim wheel investigation. Just
what speculation was permitted of the jury, the majority
doesn't say. But the majority says that speculation on the
investigation was impermissible because Goodyear had
voluntaril-y discontinued the manufacture of the K-rim wheels
three years before the investigation and because at the time
of the investigation the government didn't have the authority
to order a wheel recall. This reasoning is baffling and
misses the point. Voluntary discontinuing production of an
item does not establ-ish that the item already in the hands of
the public was not defecti~~e
and dangerous. Nor does the
presence or absence of power to recall a product establish
that the product already in the hands of the public was not
defective. In fact, discontinuance or production may have
been motivated by the conclusion that the product was both
defective and dangerous to the public.
Nor does the presence or absence of governmental power
to recall defective products bear on Goodyear's motives in
influencing a favorable governmental decision on the
investigation. The undeniable fa.ct is that the government
did have the authority to investigate product defects and to
require the manufacturer to notify the consumers who had come
into possession of those products by the distributing efforts
of the manufacturer. Here the situation is that the
Department of Transportation did not order a notification
campaign and in fact closed the investigation shortly after
the re-election of the President. The totality of the
evidence supported a jury inference that the investigation
was closed because the campaign contributions had their
intended effect.
Second, in concluding that the evidence irnpermissiblv
allowed the jury "to surmise, with no evidentiary support,
that there was a White House Commitment before Goodyear made
its contribution," the opinion relies entirely on the
testimony of Malek before the Ervin Committee to establish
this fact. (Emphasis added.) The Malek memorandum, however,
was not offered to prove a pre-existing commitment from the
White House to grant political favors to contributors. The
memorandum spoke for itself: it simply suggested that the
re-election functionaries were out to politicize the
executive branch of government by using the enormous
influence of governmental favors as the carrot.
It is odd indeed that although the majority relies
entirely on the Malek memorandum as the impermissible
evidence by which all the evidence was to be measured, not
once does the majority discuss this evidentiary piece of
evidence other than the reference to it in quoting from the
r>pe:lr-nq skatement of plaintiff ' s counsel. The majority
o ~ ~ ~ ? r I c ~ h e k fact that the essential question at all times
tci ~
was whether Goodyear made political contributions with an
expectation of reaping favorable governmental action on
issues close to Goodyear's pocketbook. It is not important
whether the governmental officials, or those c1zivinr.r :-
'>
( 'lnve
the power to influence governmental decisions, committed
themselves before or after the contributions. The motives
and actions of the Goodyear officials were on trial, and the
motives and actions could only be demonstrated by proof of
governmental complicity. With Goodyear's actions as the
focal point I have no doubt that the jury had before it a
strong circumstantial case that Goodyear expected to reap
hai~dsome returns from favorable governmental. action on the
multi-rim wheel investigation. Who knows, had the
investigation not been closed after President Nixon's
re-election, possibly the very tire rim that exploded into
Dennis Kuiper's head would not then have been in use.
Although evidence of attempts to influence an
investigation by political contributions would be sufficient
by itself for the jury to consider exemplary damages, here
the plaintiff could only get the picture before the jury by
revealing to the jury what the post-Watergate break-in
investigation evidence disclosed. It was only through this
evidence that the jury would have a more complete picture of
what Goodyear had attempted to accomplish and in fact
accomplished through its political contributions.
The third reason given for the inadmissibility of the
political contributions and investigation evidence is that
the jury was allowed to speculate from the evidence that
unknown persons in the White House knew of and could attend
to Goodyear's needs before the Department of Transportation.
The majority states that a jury conclusion to this effect
would be wholly without foundation, but the fact is that the
majority's statement is wholly without foundation. Only one
fitted with blindfolders and earplugs could conclude that the
Department of Transportation's decision to close the K-rim
wheel investigation did not have direct or indirect White
House influence.
Aside from the majority's ignoring the political
realities, the reason assigned for excluding the evidence
misses the point. The evidence against Goodyear was
admissible regardless ~f whether it could be proved that
specific White House personnel could accomplish Goodyear's
objectives in the investigations pending before. the
Department of Transportation. The evidence certainly tended
to prove Goodyear's ulterior motives in making its political
contributions, and it is, after all, Goodyear's motives and
conduct that form the basis for the jury to consider an award
of exemplary damages. Whether or not Goodyear was successful
in its efforts to influence government conduct by its
political contributions is not necessary to an award of
exemplary damages against Goodyear; but the evidence of
Goodyear's success gave to the jury a mare complete picture
of the magnitude of the involvement and the harm created by
the collusion of big business and biq government.
The evidence without question permitted a iury inference
that people in high places were looking out for the interests
of Goodyear. Goodyear knew how strongly the government was
focusing on the serious problems that the wheel rims posed
for the public, and Goodyear's own people estimated a
possible 145 million dollar cost to Goodyear. But then the
Goodyear people went to work.
 The evidence set forth by Justices Morrison and Sheehy,
and that I have repeated in a different format in this
dissent, surely gives rise to an inference that someone
beyond the Department of Transportation influenced its
decision to close the multi-piece wheel investigation. A

serious safety problem is hardly handled properly from the
standpoint of either the government or the public, when the
government makes the decision to close the investigation
before the safety problems become too widely publicized.
Fifth and finally, the majority declares that the
evidence is inadmissible because it permitted the jury to
improperly speculate that Andrew Detrick "closed the K-rim
investigation differently than those closed by his
predecessors." If there is evidence to suggest that Detrick
followed standard operating procedures, and that Detrick was
not influenced by improper motives, the majority do not
suggest what it is. The evidence suggests, and the jury was
entitled to believe, that improper political influence was
the motivating factor behind the closure of the multi-piece
wheel investigation.
Ample evidence exists in the record for the jury's
assessment of exemplary damages against Goodyear. I would
affirm the judgment.