Grimshaw v. Ford Motor Co. (119 Cal. App. 3d 757, 1981)

Opinion

TAMURA, Acting P. J.

A 1972 Ford Pinto hatchback automobile unexpectedly stalled on a freeway, erupting into flames when it was rear ended by a car proceeding in the same direction. Mrs. Lilly Gray, the driver of the Pinto, suffered fatal burns and 13-year-old Richard Grimshaw, a passenger in the Pinto, suffered severe and permanently disfiguring burns on his face and entire body. Grimshaw and the heirs of Mrs. Gray (Grays) sued Ford Motor Company and others. Following a six-month jury trial, verdicts were returned in favor of plaintiffs against Ford Motor Company. Grimshaw was awarded $2,516,000 compensatory damages and $125 million punitive damages; the Grays were awarded $559,680 in compensatory damages. On Ford’s motion for a new trial, Grimshaw was required to remit all but $3 1/2 million of the punitive award as a condition of denial of the motion.

Ford appeals from the judgment and from an order denying its motion for a judgment notwithstanding the verdict as to punitive damages. Grimshaw appeals from the order granting the conditional new trial and from the amended judgment entered pursuant to the order. The Grays have cross-appealed from the judgment and from an order denying leave to amend their complaint to seek punitive damages.

Ford assails the judgment as a whole, assigning a multitude of errors and irregularities, including misconduct of counsel, but the primary thrust of its appeal is directed against the punitive damage award. Ford contends that the punitive award was statutorily unauthorized and constitutionally invalid. In addition, it maintains that the evidence was insufficient to support a finding of malice or corporate responsibility for malice. Grimshaw’s cross-appeal challenges the validity of the new trial order and the conditional reduction of the punitive damage award. The Grays’ cross-appeal goes to the validity of an order denying them leave to amend their wrongful death complaint to seek punitive damages.

Facts

Since sufficiency of the evidence is in issue only regarding the punitive damage award, we make no attempt to review the evidence bearing on all of the litigated issues. Subject to amplification when we deal with specific issues, we shall set out the basic facts pertinent to these appeals in accordance with established principles of appellate review: We will view the evidence in the light most favorable to the parties prevailing below, resolving all conflicts in their favor, and indulging all reasonable inferences favorable to them. (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 507 [156 Cal.Rptr. 41, 595 P.2d 619]; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 [101 Cal.Rptr. 568, 496 P.2d 480].)

The Accident.

In November 1971, the Grays purchased a new 1972 Pinto hatchback manufactured by Ford in October 1971. The Grays had trouble with the car from the outset. During the first few months of ownership, they had to return the car to the dealer for repairs a number of times. Their car problems included excessive gas and oil consumption, down shifting of the automatic transmission, lack of power, and occasional stalling. It was later learned that the stalling and excessive fuel consumption were caused by a heavy carburetor float.

On May 28, 1972, Mrs. Gray, accompanied by 13-year-old Richard Grimshaw, set out in the Pinto from Anaheim for Barstow to meet Mr. Gray. The Pinto was then 6 months old and had been driven approximately 3,000 miles. Mrs. Gray stopped in San Bernardino for gasoline, got back onto the freeway (Interstate 15) and proceeded toward her destination at 60-65 miles per hour. As she approached the Route 30 off-ramp where traffic was congested, she moved from the outer fast lane to the middle lane of the freeway. Shortly after this lane change, the Pinto suddenly stalled and coasted to a halt in the middle lane. It was later established that the carburetor float had become so saturated with gasoline that it suddenly sank, opening the float chamber and causing the engine to flood and stall. A car traveling immediately behind the Pinto was able to swerve and pass it but the driver of a 1962 Ford Galaxie was unable to avoid colliding with the Pinto. The Galaxie had been traveling from 50 to 55 miles per hour but before the impact had been braked to a speed of from 28 to 37 miles per hour.

At the moment of impact, the Pinto caught fire and its interior was engulfed in flames. According to plaintiffs’ expert, the impact of the Galaxie had driven the Pinto’s gas tank forward and caused it to be punctured by the flange or one of the bolts on the differential housing so that fuel sprayed from the punctured tank and entered the passenger compartment through gaps resulting from the separation of the rear wheel well sections from the floor pan. By the time the Pinto came to rest after the collision, both occupants had sustained serious burns. When they emerged from the vehicle, their clothing was almost completely burned off. Mrs. Gray died a few days later of congestive heart failure as a result of the burns. Grimshaw managed to survive but only through heroic medical measures. He has undergone numerous and extensive surgeries and skin grafts and must undergo additional surgeries over the next 10 years. He lost portions of several fingers on his left hand and portions of his left ear, while his face required many skin grafts from various portions of his body. Because Ford does not contest the amount of compensatory damages awarded to Grimshaw and the Grays, no purpose would be served by further description of the injuries suffered by Grimshaw or the damages sustained by the Grays.

Design of the Pinto Fuel System:

In 1968, Ford began designing a new subcompact automobile which ultimately became the Pinto. Mr. Iacocca, then a Ford vice president, conceived the project and was its moving force. Ford’s objective was to build a car at or below 2,000 pounds to sell for no more than $2,000.

Ordinarily marketing surveys and preliminary engineering studies precede the styling of a new automobile line. Pinto, however, was a rush project, so that styling preceded engineering and dictated engineering design to a greater degree than usual. Among the engineering decisions dictated by styling was the placement of the fuel tank. It was then the preferred practice in Europe and Japan to locate the gas tank over the rear axle in subcompacts because a small vehicle has less “crush space” between the rear axle and the bumper than larger cars. The Pinto’s styling, however, required the tank to be placed behind the rear axle leaving only 9 or 10 inches of “crush space”—far less than in any other American automobile or Ford overseas subcompact. In addition, the Pinto was designed so that its bumper was little more than a chrome strip, less substantial than the bumper of any other American car produced then or later. The Pinto’s rear structure also lacked reinforcing members known as “hat sections” (two longitudinal side members) and horizontal cross-members running between them such as were found in cars of larger unitized construction and in all automobiles produced by Ford’s overseas operations. The absence of the reinforcing members rendered the Pinto less crush resistant than other vehicles. Finally, the differential housing selected for the Pinto had an exposed flange and a line of exposed bolt heads. These protrusions, were sufficient to puncture a gas tank driven forward against the differential upon rear impact.

Crash Tests:

During the development of the Pinto, .prototypes were built and tested. Some were “mechanical prototypes” which duplicated mechanical features of the design but not its appearance while others, referred to as “engineering prototypes,” were true duplicates of the design car. These prototypes as well as two production Pintos were crash tested by Ford to determine, among other things, the integrity of the fuel system in rear-end accidents. Ford also conducted the tests to see if the Pinto as designed would meet a proposed federal regulation requiring all automobiles manufactured in 1972 to be able to withstand a 20-mile-per-hour fixed barrier impact without significant fuel spillage and all automobiles manufactured after January 1, 1973, to withstand a 30-mile-per-hour fixed barrier impact without significant fuel spillage.

The crash tests revealed that the Pinto’s fuel system as designed could not meet the 20-mile-per-hour proposed standard. Mechanical prototypes struck from the rear with a moving barrier at 21 miles per hour caused the fuel tank to be driven forward and to be punctured, causing fuel leakage in excess of the standard prescribed by the proposed regulation. A production Pinto crash tested at 21 miles per hour into a fixed barrier caused the fuel neck to be torn from the gas tank and the tank to be punctured by a bolt head on the differential housing. In at least one test, spilled fuel entered the driver’s compartment through gaps resulting from the separation of the seams joining the rear wheel wells to the floor pan. The seam separation was occasioned by the lack of reinforcement in the rear structure and insufficient welds of the wheel wells to the floor pan.

Tests conducted by Ford on other vehicles, including modified or reinforced mechanical Pinto prototypes, proved safe at speeds at which the Pinto failed. Where rubber bladders had been installed in the tank, crash tests into fixed barriers at 21 miles per hour withstood leakage from punctures in the gas tank. Vehicles with fuel tanks installed above rather than behind the rear axle passed the fuel system integrity test at 31 -miles-per-hour fixed barrier. A Pinto with two longitudinal hat sections added to firm up the rear structure passed a 20-mile-per-hour rear impact fixed barrier test with no fuel leakage.

The Cost to Remedy Design Deficiencies:

When a prototype failed the fuel system integrity test, the standard of care for engineers in the industry was to redesign and retest it. The vulnerability of the production Pinto’s fuel tank at speeds of 20 and 30-miles-per-hour fixed barrier tests could have been remedied by inexpensive “fixes,” but Ford produced and sold the Pinto to the public without doing anything to remedy the defects. Design changes that would have enhanced the integrity of the fuel tank system at relatively little cost per car included the following: Longitudinal side members and cross members at $2.40 and $1.80, respectively; a single shock absorbant “flak suit” to protect the tank at $4; a tank within a tank and placement of the tank over the axle at $5.08 to $5.79; a nylon bladder within the tank at $5.25 to $8; placement of the tank over the axle surrounded with a protective barrier at a cost of $9.95 per car; substitution of a rear axle with a smooth differential housing at a cost of $2.10; imposition of a protective shield between the differential housing and the tank at $2.35; improvement and reenforcement of the bumper at $2.60; addition of eight inches of crush space a cost of $6.40. Equipping the car with a reinforced rear structure, smooth axle, improved bumper and additional crush space at a total cost of $15.30 would have made the fuel tank safe in a 34 to 38-mile-per-hour rear-end collision by a vehicle the size of the Ford Galaxie. If, in addition to the foregoing, a bladder or tank within a tank were used or if the tank were protected with a shield, it would have been safe in a 40 to 45-mile-per-hour rear impact. If the tank had been located over the rear axle, it would have been safe in a rear impact at 50 miles per hour or more.

Management’s Decision to Go Forward With Knowledge of Defects'.

The idea for the Pinto, as has been noted, was conceived by Mr. Iacocca, then executive vice president of Ford. The feasibility study was conducted under the supervision of Mr. Robert Alexander, vice president of car engineering. Ford’s Product Planning Committee, whose members included Mr. Iacocca, Mr. Robert Alexander, and Mr. Harold MacDonald, Ford’s group vice president of car engineering, approved the Pinto’s concept and made the decision to go forward with the project. During the course of the project, regular product review meetings were held which were chaired by Mr. MacDonald and attended by Mr. Alexander. As the project approached actual production, the engineers responsible for the components of the project “signed off” to their immediate supervisors who in turn “signed off” to their superiors and so on up the chain of command until the entire project was approved for public release by Vice Presidents Alexander and MacDonald and ultimately by Mr. Iacocca. The Pinto crash tests results had been forwarded up the chain of command to the ultimate decision-makers and were known to the Ford officials who decided to go forward with production.

Harley Copp, a former Ford engineer and executive in charge of the crash testing program, testified that the highest level of Ford’s management made the decision to go forward with the production of the Pinto, knowing that the gas tank was vulnerable to puncture and rupture at low rear impact speeds creating a significant risk of death or injury from fire and knowing that “fixes” were feasible at nominal cost. He testified that management’s decision was based on the cost savings which would inure from omitting or delaying the “fixes.”

Mr. Copp’s testimony concerning management’s awareness of the crash tests results and the vulnerability of the Pinto fuel system was corroborated by other evidence. At an April 1971 product review meeting chaired by Mr. MacDonald, those present received and discussed a report (exhibit 125) prepared by Ford engineers pertaining to the financial impact of a proposed federal standard on fuel system integrity and the cost savings which would accrue from deferring even minimal “fixes.” The report refers to crash tests of the integrity of the fuel system of Ford vehicles and design changes needed to meet anticipated federal standards. Also in evidence was a September 23, 1970, report (exhibit 124) by Ford’s “Chassis Design Office” concerning a program “to establish a corporate [Ford] position and reply to the government” on the proposed federal fuel system integrity standard which included zero fuel spillage at 20 miles per hour fixed barrier crash by January 1, 1972, and 30 miles per hour by January 1, 1973. The report states in part: “The 20 and 30 mph rear fixed barrier crashes will probably require repackaging the fuel tanks in a protected area such as above the rear axle. This is based on moving barrier crash tests of a Chevelle and a Ford at 30 mph and other Ford products at 20 mph. [11] Currently there are no plans for forward models to repackage the fuel tanks. Tests must be conducted to prove that repackaged tanks will live without significantly strengthening rear structure for added protection.” The report also notes that the Pinto was the “[s]mallest car line with most difficulty in achieving compliance.” It is reasonable to infer that the report was prepared for and known to Ford officials in policy-making positions.

The fact that two of the crash tests were run at the request of the Ford chassis and vehicle engineering department for the specific purpose of demonstrating the advisability of moving the fuel tank over the axle as a possible “fix” further corroborated Mr. Copp’s testimony that management knew the results of the crash tests. Mr. Kennedy, who succeeded Mr. Copp as the engineer in charge of Ford’s crash testing program, admitted that the test results had been forwarded up the chain of command to his superiors.

Finally, Mr. Copp testified to conversations in late 1968 or early 1969 with the chief assistant research engineer in charge of cost-weight evaluation of the Pinto, and to a later conversation with the chief chassis engineer who was then in charge of crash testing the early prototype. In these conversations, both men expressed concern about the integrity of the Pinto’s fuel system and complained about management’s unwillingness to deviate from the design if the change would cost money.

The Action•

Grimshaw (by his guardian ad litem) and the Grays sued Ford and others. Grimshaw was permitted to amend his complaint to seek punitive damages but the Grays’ motion to amend their complaint for a like purpose was denied. The cases were thereafter consolidated for trial. Grimshaw’s case was submitted to the jury on theories of negligence and strict liability; the Grays’ case went to the jury only on the strict liability theory.

Ford’s Appeal

Ford seeks reversal of the judgment as a whole on the following grounds: (1) Erroneous rulings relating to Mr. Copp’s testimony; (2) other erroneous evidentiary rulings; (3) prejudicial misconduct by plaintiffs’ counsel; (4) instructional errors; and (5) jury misconduct. On the issue of punitive damages, Ford contends that its motion for judgment notwithstanding the verdict should have been granted because the punitive award was statutorily unauthorized and constitutionally invalid and on the further ground that the evidence was insufficient to support a finding of malice or corporate responsibility for malice. Ford also seeks reversal of the punitive award for claimed instructional errors on malice and proof of malice as well as on the numerous grounds addressed to the judgment as a whole. Finally, Ford maintains that even if punitive damages were appropriate in this case, the amount of the award was so excessive as to require a new trial or further remittitur of the award.

In the ensuing analysis (ad nauseam) of Ford’s wide-ranging assault on the judgment, we have concluded that Ford has failed to demonstrate that any errors or irregularities occurred during the trial which resulted in a miscarriage of justice requiring reversal.

I

The Testimony of Harley Copp

Mr. Harley Copp, a former Ford engineering executive, was plaintiffs’ principal witness on the subject of defects in the design, placement, and protection of the Pinto’s gas tank and on Ford management’s decision to place the car on the market with knowledge of the defects. Ford assails Mr. Copp’s testimony on three basic grounds: (1) He should not have been permitted to testify at all because plaintiffs failed to disclose his identity before trial and because Ford was denied the opportunity to depose him; (2) he should not have been allowed to testify during direct examination to the reason for his termination by Ford; and (3) he should not have been permitted to testify on direct examination concerning the contents of reports, studies, and tests on which he relied in forming his opinions.

(1) Rulings Pertaining to Copp’s Identity and Requests to Depose Him:

After trial had been under way for a month, defense counsel made an oral motion for the disclosure of the identity of “any disgruntled Ford employee or former employee” whom plaintiffs intended to call as a witness and for the opportunity to depose him before he was called as a witness. Plaintiffs objected on the ground that Ford had the opportunity in the course of pretrial discovery to seek the identity of plaintiffs’ experts and to depose them and that to permit depositions to be taken at that stage of the proceedings would interrupt the trial unduly. Plaintiff’s counsel (Mr. Hews) stated that he intended to call a former Ford employee but declined to reveal his identity except to the court outside the presence of defense counsel. The judge conducted an unreported in camera inquiry of plaintiffs’ counsel following which the judge dictated an account of the proceedings and ordered the transcript sealed. Thereafter, the court denied Ford’s motion, stating: (1) That the witness whom plaintiffs intended to call was contacted after plaintiffs had responded to defendants’ last request for a list of plaintiffs’ expert witnesses; (2) defendants had ample opportunity to learn the witness’ name and to depose him through pretrial discovery procedure; and (3) that to permit a deposition at that stage of the trial would interrupt the progress of the trial unduly. Ford did not object to the in camera proceedings or request disclosure of the matters revealed to the judge, did not ask for an opportunity to rebut anything that might have been said, and did not object to the court’s consideration of matters disclosed during the in camera proceeding in making its ultimate ruling.

After plaintiffs called Mr. Copp as a witness (without objection) and during the course of his direct examination, Ford twice moved orally to depose Mr. Copp before he continued with his testimony. The court denied the motions as untimely and on the further ground that Ford would not be prejudiced by lack of prior opportunity to depose the witness in light of its broad power to cross-examine him.

Ford contends that the court should have barred Mr. Copp from testifying because of plaintiffs’ failure to disclose his identity during pretrial discovery or, at the very least, that the court abused its discretion in denying Ford’s motion to depose him before he testified. The contentions lack merit.

A party can be compelled to identify the experts whom he contemplates calling as witnesses and such experts may, upon good cause shown, be deposed by the other party. (Bolles v. Superior Court (1971) 15 Cal.App.3d 962, 963 [93 Cal.Rptr. 719]; Scotsman Mfg. Co. v. Superior Court (1962) 242 Cal.App.2d 527, 530-532 [51 Cal.Rptr. 511]; Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 204 [41 Cal.Rptr. 721]; Louisell & Walley, Modern Cal. Discovery (2d ed. 1972) § 5.12, p. 337.) A party can also be compelled at an appropriate stage of the proceedings before trial to elect whether or not he will call as a witness an expert with whom he has consulted in trial preparation and to disclose his election to his adversary. (Sanders v. Superior Court (1973) 34 Cal.App.3d 270, 279-280 [109 Cal.Rptr. 770].) If the party elects to call the expert as a witness, the opposing party should be granted a reasonable time within which to conduct appropriate additional discovery. {Id., at p. 279.)

Willful failure to disclose the identity of an expert whom the party intends to call as a witness may justify exclusion of his testimony. (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274-275 [105 Cal.Rptr. 276]; Code Civ. Proc., § 2019, subd. (b), § 2034, subd. (b).) However, where it appears that a decision to call a new and different expert is made after the response to a compelled election and was not willfully delayed in violation of the spirit of the discovery rules, the failure to exclude such expert’s testimony is not an abuse of discretion. (Rangel v. Graybar Electric Co. (1977) 70 Cal.App.3d 943, 948 [139 Cal.Rptr. 191]; see Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 780, fn. 4 [149 Cal.Rptr. 499]; Powers, A Guide to Interrogatories in California Practice (1975) 48 So.Cal.L.Rev. 1221, 1256-1257.) It has been said that interrogatories should not be permitted to be used as a trap “pinning a party for all time to an answer intended to reflect only that party’s knowledge as of the date of the answer.” (Id., at p. 949; see Singer v. Superior Court, 54 Cal.2d 318, 324-326 [5 Cal.Rptr. 697, 353 P.2d 305]; Powers, supra.)

In the present case, the evidence discloses the following chronology of events respecting identification of plaintiff’s expert witnesses. Plaintiffs’ responses to Ford’s demand for the names of the experts and to codefendant Wilson-Ford’s motion to compel election were filed before January 10, 1977. The responses listed the experts and added: “Plaintiff is presently engaging in trial preparation which includes extensive additional investigation into Ford Pinto, which may lead to additional expert witnesses.” Plaintiffs’ counsel met Mr. Copp for the first time on January 18, 1977, and learned of his potential availability as a witness.

Whether there has been a willful failure to disclose the identity of an expert witness is a matter to be determined by the trial court and its finding will not be disturbed unless it is so lacking in evidentiary support or is so arbitrary as to constitute an abuse of discretion. (Rangel v. Graybar Electric Co., supra, 70 Cal.App.3d 943, 948; see also Fairfield v. Superior Court (1963) 246 Cal.App.2d 113, 118-121 [54 Cal.Rptr. 721].) The trial court found that plaintiffs’ responses to Ford’s demand for a list of the expert witnesses and to codefendant’s motion for election contained a full, accurate, and complete list of persons then known to plaintiffs who would be called; that the person whose identity Ford was seeking was “acquired” by plaintiffs after defendant’s last request for a list of experts; and that Ford had ample opportunity through pretrial discovery to learn the name of plaintiffs’ additional expert and to depose him. As we explain below, there is substantial evidentiary support for those findings.

That the first contact between plaintiffs’ attorneys and Mr. Copp occurred on January 18, 1977, was confirmed by Mr. Copp’s testimony and was and is unchallenged by Ford. Plaintiffs’ response made it clear to defendant that the experts listed were those then known to plaintiffs, that plaintiffs were continuing a nationwide investigation and that other experts might be discovered. Thus, defendant can be said to have been on notice that plaintiffs’ investigatory work might uncover additional witnesses. Defendant’s brief suggests that plaintiffs had a burden to give them notice of any expert witnesses found after the election had been made. However, because defendant’s interrogatories were not continuing, plaintiffs had no obligation under the then existing law to update the list as additional experts were found who might be called as witnesses. There was also evidence that early disclosure of the witness’ identity might have subjected him to harassment and rendered him unavailable to plaintiffs. There was thus ample evidentiary support for the implied finding that there had been no willful suppression of Mr. Copp’s identity as a potential expert witness. There was also evidence to support the finding that defendants had ample opportunity through pretrial discovery to ascertain Mr. Copp’s identity and to depose him. There was indication that Ford’s counsel knew as early as June 1977 that Mr. Copp might be a witness for plaintiffs. That Ford’s oral motion was for the disclosure of any former “disgruntled” Ford employee who might be called as plaintiffs’ witness and that Ford’s motion was made only after and in apparent response to one made by plaintiffs for the disclosure of a possible Ford witness suggest that Ford knew the identity of the witness.

Ford complains that, because the trial court’s ruling was based on evidence taken at the in camera proceeding from which Ford was excluded, the ruling violated Ford’s due process right and constituted reversible error per se. No authorities are cited to support this contention and we find none. By its failure to object to the in camera proceeding, or to the court’s consideration of matters revealed in camera, or to request an opportunity to respond thereto, Ford waived its right to assert that the proceedings were improper. Procedural irregularities or erroneous rulings in connection with the relief sought or defenses asserted will not be considered on appeal where a timely objection could have been made but was not made in the court below. (Bardessono v. Michels (1970) 3 Cal.3d 780, 794 [91 Cal.Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717]; Nanny v. Ruby Lighting Corp. (1952) 108 Cal.App.2d 856, 859 [239 P.2d 885]. 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 276, pp. 4264-4265.) The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at page 610 [204 P. 33] (quoting the following passage from 1 Hayne on New Trial and Appeal, § 103): “‘In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’”

Turning to Ford’s motions to depose Mr. Copp before he continued with his direct testimony, we find no abuse of discretion in the court’s rulings. The right to conduct discovery “within 30 days before trial” is within the sound discretion of the trial court and in exercising its discretion the court is required to take into consideration the necessity and reasons for such discovery, the diligence or lack of diligence of the party seeking such discovery and his reasons for not having cornpleted his discovery prior to 30 days before trial, whether permitting such discovery will prevent the case from going to trial on the day set or otherwise interfere with the trial calendar or result in prejudice to any party, and any other matter relevant to the request. (Cal. Rules of Court, rule 222; 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 49, p. 2889.) The court was justified in denying Ford’s motions for its failure to exercise due diligence and because the granting of the motions would have caused an undue interruption in the orderly progression of the trial.

(2) Copp’s Testimony Concerning the Reasons for His Termination by Ford:

On direct examination, Mr. Copp testified to his employment history with Ford, including positions he held with the company in the United States and England and the date on which he left Ford. He testified he was forced to take an early retirement and, over defendant’s objection, was permitted to explain that this was because he spoke out on matters of safety. The court ruled that evidence of the circumstances under which Mr. Copp left Ford was admissible because it bore upon his credibility and was necessary to enable the jury to understand and evaluate his testimony.

Ford maintains that the evidence was inadmissible on direct examination because the witness’ credibility had not yet been challenged and that Ford was prejudiced by the erroneous ruling because it was compelled to cross-examine Mr. Copp concerning the reasons for his termination, in turn enabling plaintiffs to introduce prejudicial rehabilitation testimony not otherwise admissible. Ford relies on the general proposition that evidence to support the credibility of a witness is inadmissible until there has been an attempt to impeach; that until a witness’ credibility has been attacked, there is nothing to rehabilitate. (People v. Sweeney (1960) 55 Cal.2d 27, 39 [9 Cal.Rptr. 793, 357 P.2d 1049]; Witkin, Cal. Evidence (2d ed. 1966), § 1276, p. 1180; Jefferson, Cal. Evidence Benchbook, § 28.14, pp. 488-489, 492-493. See Evid. Code, §§ 790, 791.)

If the court’s ruling was proper under any theory, however, it must be upheld. A ruling correct in law will not be disturbed on appeal simply because given for a wrong reason; if right on any applicable theory of law, it must be sustained. (D’Amico v. Board of Medical Ex aminers (1974) 11 Cal.3d 1, 19 [112 Cal.Rptr. 786, 520 P.2d 10].) The principle applies to evidentiary rulings. (Wilcox v. Berry (1948) 32 Cal.2d 189, 192 [195 P.2d 414]; Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329 [48 P. 117]; Southers v. Savage (1961) 191 Cal.App.2d 100, 105 [12 Cal.Rptr. 470].) Assuming that enhancing the witness’ credibility was not a valid independent basis for the court’s ruling, the evidence was nevertheless admissible (1) because it went to the witness’ qualification as an expert and (2) because it was relevant to the issue of malice on Grimshaw’s claim for punitive damages.

A party offering an expert witness is entitled to examine him “as to his qualifications and experience so that the full weight to be accorded his testimony will become apparent.” (Moore v. Belt (1949) 34 Cal.2d 525, 532 [212 P.2d 509]; Salmon v. Rathjens (1907) 152 Cal. 290, 299 [92 P. 733].) Such examination “should not be limited by narrow and stringent rules.” (Eble v. Peluso (1947) 80 Cal.App.2d 154, 156-157 [181 P.2d 680].) It was therefore within the court’s discretion to permit plaintiffs to elicit from Mr. Copp testimony as to when he left Ford and why. Evidence as to why he left Ford was part of the background information concerning the witness’ professional experience which would assist the fact finder in determining the weight to be given to his testimony. While the evidence may also have tended to enhance the witness’ credibility, the purpose of permitting a party producing an expert to question him as to his educational background, training, and experience in his area of expertise is not only to establish “the competency of the witness to the satisfaction of the court, but also for the purpose of making plain the strength of the witness’s [sic] grounds of knowledge and the reason for trusting his belief.” (Salmon v. Rathjens, supra, 152 Cal. 290, 299; 2 Wigmore, Evidence (Chadbourne rev. 1979) §§ 562, subd. (2), 655, pp. 759-760, 884-886.) Therefore, the fact that the evidence may have enhanced the witness’ credibility did not render it inadmissible.

Additionally, the circumstances surrounding Mr. Copp’s termination were relevant to the issue of malice on the claim for punitive damages. “[A]ll relevant evidence is admissible” except as otherwise provided by statute. (Evid. Code, § 351.) Relevant evidence means evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The general test of relevancy is whether the evidence tends logically, naturally and by reasonable inference to establish a material fact. (People v. Warner (1969) 270 Cal.App.2d 900, 907 [76 Cal.Rptr. 160].) “Evidence tends ‘in reason’ to prove a fact when ‘the evidence offered renders the desired inference more probable than it would be without the evidence.’ [Citations.] Evidence is relevant not only when it tends to prove or disprove the precise fact in issue but when it tends to establish a fact from which the existence or nonexistence of the fact in issue can be directly inferred. [Citations.] The trial court is vested with wide discretion in deciding relevancy.” (Id., at pp. 907-908, italics deleted; People v. Green (1980) 27 Cal.3d 1, 19 [164 Cal.Rptr. 1, 609 P.2d 468]; Cramer v. Morrison (1979) 88 Cal.App.3d 873, 879 [153 Cal.Rptr. 865].) Circumstantial evidence is admissible to establish motive, knowledge or state of mind since direct evidence on such facts is rarely available. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 923, fn. 6 [148 Cal.Rptr. 389, 582 P.2d 980]; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 66 [118 Cal.Rptr. 184, 529 P.2d 608, 65 A.L.R.3d 878].) The fact that Ford fired a high ranking engineering executive for advocating automotive safety was indicative of Ford management’s attitude towards safety in automobile production and was thus relevant to the issue of malice. It had a tendency in reason to prove that Ford’s failure to correct the Pinto’s fuel system design defects, despite knowledge of their existence, was deliberate and calculated. Ford’s argument that firing Mr. Copp in 1976 for speaking out on safety does not reasonably tend to show that Ford disregarded safety in designing the Pinto some five years earlier lacks merit. The evidence was not that Mr. Copp first took his stand on safety in 1976; he testified that he had been outspoken on auto safety during all the many years he worked for Ford.

Ford complains that since Mr. Copp was permitted to testify to the circumstances surrounding his termination, Ford was compelled to cross-examine him to show that the reason for his dismissal was unexplained absences from work and unsatisfactory work performance; that if the court had not permitted Mr. Copp to give his version of the reason for termination, Ford would have had little or no reason to examine him about his retirement and plaintiffs would not have been able to adduce rehabilitation testimony highly prejudicial to Ford. The record discloses that Mr. Copp testified only briefly concerning the circumstances of his early retirement from Ford but that on cross-examination Ford engaged in extensive questioning to show that the reason for his termination was not his safety views but unsatisfactory work and absenteeism. Plaintiffs thereafter introduced rehabilitating testimony. Mr. Copp was permitted to testify to his campaign for automotive safety during his entire period of employment with Ford, including a conversation he had with Henry Ford II on the subject, his testimony before a United States Senate Committee concerning the Chevrolet Corvair’s unsafe design and his role in exposing Ford’s conduct in connection with the emission control program. Ford argues that but for the court’s erroneous initial ruling and its consequent cross-examination on the reason for Mr. Copp’s retirement, the damaging rehabilitation evidence would not have come in. Since we find no error in the court’s initial ruling and since Ford has not advanced any independent reason why the rehabilitating evidence should have been excluded, Ford’s complaint concerning the prejudicial nature of that evidence must be rejected.

(3) Mr. Copp’s Testimony Concerning Matters Relied Upon in Forming His Opinion:

Ford complains that the court erroneously permitted Mr. Copp to testify on direct examination to the contents of the literature, reports and tests on which he relied in forming his opinions. Ford cites five such instances: Testimony concerning examples of vehicles meeting a 50-mile-per-hour moving barrier test without fuel tank rupture and fire; testimony that field reports proved over-the-axle fuel tank position to be superior in design; testimony about a proposal United States Steel Co. made to Ford concerning a bladder within a tank; testimony that he based his opinion that a bladder within a tank was feasible in 1969 and 1970 on the fact that Ford had started testing such a device in 1967 and that United States Steel had successfully built such a tank that withstood up to 30-miles-per-hour fixed barrier crash tests without puncturing; and testimony that during his career he had seen the results of several hundred over-the-axle tests published in journals and that there was not one reported fuel tank failure in any of them regardless of the speed of the tests. Ford contends that in the cited instances Mr. Copp was permitted to testify concerning details of the hearsay matters on which he relied in forming his opinion.

While an expert may state on direct examination the matters on which he relied in forming his opinion, he may not testify as to the details of such matters if they are otherwise inadmissible. (People v. La Macchia (1953) 41 Cal.2d 738, 744-745 [264 P.2d 15], overruled on other grounds in County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 680 [312 P.2d 680]; Baily v. Kreutzmann (1904) 141 Cal. 519, 521-522 [75 P. 104]; Intoximeters, Inc. v. Younger (1975) 53 Cal.App.3d 262, 273 [125 Cal.Rptr. 864]; Furtado v. Montecello Unified Sch. Dist. (1962) 206 Cal.App.2d 72, 79-80 [23 Cal.Rptr. 476]; People v. Nahabedian (1959) 171 Cal.App.2d 302, 310-311 [340 P.2d 1053].) The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence. (People v. La Macchia, supra, 41 Cal.2d 738.) Ordinarily, the use of a limiting instruction that matters on which an expert based his opinion are admitted only to show the basis of the opinion and not for the truth of the matter cures any hearsay problem involved, but in aggravated situations, where hearsay evidence is recited in detail, a limiting instruction may not remedy the problem. (Evid. Code, §§ 352, 355; see Conservatorship of Buchanan (1978) 78 Cal.App.3d 281, 289 [144 Cal.Rptr. 241]; Kelley v. Bailey (1961) 189 Cal.App.2d 728, 738 [11 Cal.Rptr. 448]; see also Adkins v. Brett (1920) 184 Cal. 252, 258 [193 P. 251].) The court is not required to give such limiting instructions sua sponte. (Evid. Code, § 355; Kelley v. Bailey, supra, 189 Cal.App.2d 728, 738; see e.g., People v. Richards (1976) 17 Cal.3d 614, 618-619 [131 Cal.Rptr. 537, 552 P.2d 97].) Mr. Copp was not permitted to testify concerning the details of the hearsay matters on which he relied in forming his opinion.

In the instant case, the record shows that in at least three of the instances cited by Ford, it made no objection on the ground now asserted on appeal. In addition, most of the matters to which Mr. Copp referred were within his personal knowledge and experience. When Mr. Copp was permitted to testify to the matters on which he based his opinion that the bladder within a tank was feasible, the judge gave the jury a proper limiting instruction at Ford’s request. Ford would have been entitled to like limiting instructions in other instances had it made such requests but it did not do so. Finally, in no instance was Mr. Copp permitted to read the reports or documents to which he referred or relate their contents in specific detail. In light of these circumstances, we conclude that the court did not commit reversible error in the cited instances where the expert was permitted to testify to the matters he considered in forming his opinions.

II

Other Evidentiary Rulings

Ford contends that the court erroneously admitted irrelevant documentary evidence highly prejudicial to Ford. We find the contention to be without merit.

(1) Exhibit No. 125:

Exhibit No. 125 was a report presented at a Ford production review meeting in April 1971, recommending action to be taken in anticipation of the promulgation of federal standards on fuel system integrity. The report recommended, inter alia, deferral from 1974 to 1976 of the adoption of “flak suits” or “bladders” in all Ford cars, including the Pinto, in order to realize a savings of $20.9 million. The report stated that the cost of the flak suit or bladder would be $4 to $8 per car. The meeting at which the report was presented was chaired by Vice President Harold MacDonald and attended by Vice President Robert Alexander and occurred sometime before the 1972 Pinto was placed on the market. A reasonable inference may be drawn from the evidence that despite management’s knowledge that the Pinto’s fuel system could be made safe at a cost of but $4 to $8 per car, it decided to defer corrective measures to save money and enhance profits. The evidence was thus highly relevant and properly received. (See Evid. Code, §§ 210, 351.)

Ford’s contention appears to be addressed not so much to the admissibility of exhibit No. 125 but to the use which Grimshaw’s counsel made of it in his argument to the jury. Ford complains that while exhibit No. 125 recommended “that $100 million be spent,” Grimshaw’s counsel argued that the report showed $100 million would be saved and urged the jury to award that sum as punitive damages. It is not clear that exhibit No. 125 recommended that “$100 million be spent”; it states that over the period 1973 to 1976 the cost estimates to meet the federal standards would be $100 million. Nor is the record clear that Grimshaw’s counsel was referring to exhibit No. 125 when he urged the jury to award punitive damages in the sum of $100 million. In any event, Ford failed to object to counsel’s argument as a misstatement of the evidence. In the absence of an objection and a request for admonition where the admonition would have cured the harm, the issue may not be raised on appeal. (Horn v. Atchison, T. & S.F. Ry. Co., 61 Cal.2d 602, 610 [39 Cal.Rptr. 721, 394 P.2d 561], cert. den. Atchison T. & S.F. Ry. Co. v. Horn (1964) 380 U.S. 909 [13 L.Ed.2d 736, 85 S.Ct. 892]; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 859-860 [139 Cal.Rptr. 888, 93 A.L.R.3d 537].)

(2) Exhibits Nos. 95 and 122:

Ford urges that a report (exhibit No. 95) and a motion picture depicting Ford’s crash test No. 1616 (exhibit No. 122) should have been excluded because they were irrelevant and highly prejudicial to Ford in that they showed that in a 21.5-mile-per-hour crash of a 1971 Pinto prototype into a fixed barrier the filler neck of the fuel tank separated allowing fluid to spill from the tank, whereas no such filler neck separation occurred in the Gray vehicle. Under the test for ascertaining relevancy of evidence to which we have previously alluded, we find no abuse of discretion in the court’s ruling. Not only did the filler neck separation show the vulnerability of the Pinto fuel system in a 21.5-mile-per-hour fixed barrier test, but crash test No. 1616, as Ford conceded, resulted in a puncture of the fuel tank from the exposed bolt heads on the differential housing. Thus, the exhibits showed the defect in the Pinto’s gas tank location and design, the hazard created by the protrusions on the differential housing, and, in addition, they served as evidence of Ford’s awareness of those defects. Exhibits Nos. 95 and 122 were properly received in evidence.

(3) Exhibit No. 82:

Ford contends admission into evidence over its objection of a report known as the “Chiara memorandum” (plaintiffs’ exhibit No. 82) was error. The report, dated February 1971, was a Ford engineering study of the costs of a proposal for a fuel tank over the axle and a tank within a tank for a Ford-Mercury automobile. Ford argues that the study was irrelevant because it pertained to an entirely different car to be built four years later. Mr. Copp testified, however, that the information in the study could be applied equally to the Pinto. The study showed that the cost of placing the gas tank over the axle with protective. shield was about $10 and that a tank within a tank with polyurethane foam between tanks would have cost about $5. Whether the probative value of the evidence was outweighed by the danger of undue prejudice was a matter for the trial judge. (Evid. Code, § 352; e.g., Cramer v. Morrison, supra, 88 Cal.App.3d 873, 884-885; Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 522 [105 Cal.Rptr. 904].) In the circumstances, we find no abuse of discretion in the judge’s determination.

(4) Exclusion of Evidence Proffered by Ford:

Ford contends that two items which it attempted to introduce into evidence were erroneously excluded. One was a statistical study from an accident data bank maintained by the State Patrol of the State of Washington. Ford sought to introduce the evidence to show that proportionately the Pinto produced no greater chance of injury or death from fire than other vehicles. The court sustained plaintiff’s objections to the evidence on the ground its probative value was at best minimal whereas the prejudicial effect was substantial. In addition, the court felt that the admission of the evidence would confuse the jury and would result in undue consumption of time. (See Evid. Code, § 352; Cramer v. Morrison, supra, 88 Cal.App.3d 873, 884-885; Celli v. Sports Car Club of America, Inc., supra, 29 Cal.App.3d 511, 522.) We fail to find an abuse of discretion in the court’s ruling.

First, the excluded study encompassed only a small number of collisions which resulted in Pinto fires, thus rendering the sampling open to misleading inferences. Furthermore, the reliability of the field reports from which the data were extracted and fed into the computer was questionable both because of the lack of adequate instruction concerning the information requested as well as the absence of any check on the accuracy of the information provided. Finally, the report and statistics covered the period 1970-1976. Inasmuch as the Pinto underwent substantial modifications during 1973 and thereafter, the reports may not have given a true picture of the earlier versions of the Pinto.

Ford also contends that its offer to prove that Mr. Freers, Ford’s chief light car engineer, purchased a Pinto for his family when the Pinto first went on the market was erroneously refused. The record, however, fails to reflect any such offer of proof and Ford does not contend otherwise. This court is limited to reviewing matters appearing of record. (Bardessono v. Michels, supra, 3 Cal.3d 780, 784; Nanny v. Ruby Lighting Corp., supra, 108 Cal.App.2d 856, 859; 6 Witkin, Cal. Procedure (2d ed.) supra, pp. 4264-4265.) Furthermore, even if an offer of proof had been made and the court had erroneously denied it, the error would not have resulted in a miscarriage of justice compelling reversal. (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 304, p. 4287.)

III

Alleged Misconduct of Counsel

Ford recites a litany of alleged misconduct by plaintiffs’ counsel which, it urges, effectively denied it a fair trial. The charges range from alleged violations of orders in limine, to asking questions suggesting Ford had been guilty of criminal conduct in an unrelated matter, framing questions containing factual assumptions not supported by the record, to misconduct in arguments to the jury.

(1) Alleged Violations of an Order in Limine:

At the commencement of trial the court, on Ford’s motion, made an order in limine that counsel not mention any other Pinto fires without first approaching the bench and obtaining a ruling. Ford contends that plaintiffs’ counsel violated that order on two occasions and that the court erred in denying Ford’s motion for a mistrial for those violations.

The first instance pertained to a question propounded by the Grays’ counsel to a highway patrol officer who investigated the accident as to whether he had ever seen a Pinto involved in an accident with a standard sized automobile and whether the Pinto burned. Ford objected and moved for a mistrial. The judge sustained Ford’s objection, denied the motion for mistrial, and admonished the jury that the question was not evidence and that both question and answer should be disregarded.

The second instance of a charged violation of the order in limine arose out of a question Grimshaw’s counsel asked Ford’s engineer, Mr. Kennedy. The witness was being examined on the Pinto’s vulnerability in rear-end collisions and had testified that based on performance, the Pinto had performed better than “the general population in this particular respect.” Pressed for the source of his information, Mr. Kennedy admitted he was relying upon a Ford press release which he said was based on government statistics and field performance. Plaintiffs’ counsel thereupon asked the witness whether he acknowledged that the following statement appeared in a governmental report: “On each occasion the Ford Pinto gas tank buckled and gas spewed forth. Fire totally gutted the vehicle. Statistics . .. [record unclear] .. . indicate that three such conflagrations were experienced by one rental agency in a six month period, demonstrating a clear and present hazard to all Pinto owners.” Ford objected and immediately moved for a mistrial on the ground that the question violated the order in limine and that the subject matter of the question was prejudicial to its case. Plaintiffs’ counsel argued that the question was proper because the witness had interjected statistics reportedly based on field performances and government reports to defend Pinto’s performance but conceded he should have approached the bench and obtained a ruling before he asked the question. The court denied the motion for a mistrial but admonished plaintiffs’ counsel that it would not hesitate to grant a mistrial if counsel did not “proceed with utmost care.” In open court the judge sustained Ford’s objection and admonished the jury to disregard the question and to draw no inferences from it.

As to the first alleged violation, the record is not entirely clear concerning the intended scope of the initial in limine order. In ruling on the motion for mistrial, the judge recalled that the order was made before counsel’s opening statements and was to the effect that no reference be made in the opening statements to other Pinto fires without first approaching the bench. In any event, the question could not have affected the verdict in view of the prompt admonition to the jury to disregard the question and in view of the judge’s frequent admonitions throughout the trial that counsel’s questions were not evidence and that no inferences were to be drawn from them. (See 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 164, pp. 2984-2985, and cases cited therein.)

As to the second alleged misconduct relating to the order in limine, the question arguably may have been within the scope of proper cross-examination of the adverse expert witness but there is no doubt that failure to approach the bench before asking the question violated the ground rule which had been clarified after the first incident. The trial court, however, was in the best position to evaluate the effect of the misconduct. It made that assessment in ruling on the motion for a mistrial and later in passing on Ford’s motion for a new trial in which one of the grounds was the asserted misconduct of counsel in violating the order in limine. In denying both motions, the trial judge impliedly determined that the misconduct did not result in prejudice and that the verdict was not the result, in whole or in part, of the charged misconduct. Such determinations by the trial court may not be disturbed on appeal unless they are patently wrong. (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 72 [107 Cal.Rptr. 45, 507 P.2d 653, 94 A.L.R.3d 1059]; Cope v. Davison (1947) 30 Cal.2d 193, 203 [180 P.2d 873, 171 A.L.R. 667].) We cannot say that the trial judge’s implied assessment of the effect of the charged misconduct on the verdict was manifestly wrong.

(2) Questions Relating to Ford’s Compliance With Federal Emission Standards:

Ford contends that plaintiffs’ counsel was guilty of misconduct in attempting to get before the jury the fact that Ford had doctored its records to show compliance with federal emission standards, a subject which Ford says was irrelevant to the integrity of the Pinto’s fuel system. The matter first came up during redirect-examination of Mr. Copp. When asked about his position relative to Ford’s compliance with the federal emission standards, Mr. Copp responded that Ford maintained two computer printouts, one of which was doctored to show compliance and was used to report that fact to the government, and that he had investigated this “fraud” and called it to the attention of Ford executives. He was then asked whether this situation resulted in criminal charges against Ford. Ford objected and moved for a mistrial. The objection was sustained but the motion for mistrial was denied and the jury was admonished to disregard the question. The second time the matter came up was during plaintiff’s cross-examination of Mr. Tubben, Ford’s engineering expert, concerning Ford’s procedure in certifying compliance with federal regulations. He was asked whether Ford kept two files in order to pass federal emission standards. Objection and a motion for mistrial ensued. The court sustained the. objection but denied the mistrial.

The questions were arguably proper in both of the above-described instances. Mr. Copp’s testimony concerning the emission control matter tended to rebut Ford’s evidence that Mr. Copp was fired for absenteeism and unsatisfactory performance. Cross-examination of Mr. Tubben on the subject of compliance with federal emission controls tended to impeach his testimony that the Pinto met all federal regulations. The court nevertheless sustained Ford’s objections to the questions, presumably on the basis that the prejudicial effect of the evidence outweighed its probative value, but denied the mistrial motions. We find no abuse of discretion in the court’s ruling denying a mistrial. There were sufficient bases for the court’s implied determination that the questions were not asked in bad faith and that the admonitions to the jury would avoid the harmful effect of the questions. (See e.g., Tobler v. Chapman (1973) 31 Cal.App.3d 568, 576-577 [107 Cal.Rptr. 614]; Tellefsen v. Key System Transit Lines (1958) 158 Cal.App.2d 243, 246-247 [322 P.2d 469, 67 A.L.R.2d 556]; 4 Witkin, Cal. Procedure (2d ed.) supra, pp. 2984-2986.)

(3) The Form of Questions Propounded by Plaintiff's’ Counsel:

Ford contends that Grimshaw’s counsel repeatedly asked questions containing factual assertions not supported by the record and that this constituted misconduct requiring reversal. Ford cites questions propounded during cross-examination of Mr. Kennedy, Mr. Tubben and Ford’s carburetor expert. In many of the examples cited, Ford interposed no objections; in others, the court sustained Ford’s objections. More importantly, most of the questions of which Ford now complains were properly asked on cross-examination of Ford’s experts. It is well established that wide latitude should be allowed in cross-examining experts on their qualifications and on the reasons given for the opinions expressed. (Evid. Code, § 721; Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472, 482 [72 Cal.Rptr. 321, 446 P.2d 129]; Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 219 [331 P.2d 617]; Hope v. Arrowhead & Puritas Waters, Inc. (1959) 174 Cal.App.2d 222, 230 [344 P.2d 428].) Finally, in none of the instances did Ford even suggest that plaintiff’s counsel was guilty of misconduct in asking the questions; it did not cite counsel for misconduct or request an admonishment. A claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and request that the jury be admonished. (E.g., Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 318 [74 Cal.Rptr. 534, 449 P.2d 750], cert. den. in Southern Pacific Co. v. Sabella (1969) 395 U.S. 960 [23 L.Ed.2d 746, 89 S.Ct. 2100]; Horn v. Atchison, T. & S. F. Ry. Co., supra, 61 Cal.2d 602, 610.)

In light of the length of the trial, the thousands of questions which were asked and the complexity of the factual issues in this case, it was inevitable that some of the questions might assume facts not then in evidence. The few instances in which this may have occurred cannot be characterized as a pervasive course of misconduct. The able trial judge in the instant case did not permit the trial to degenerate into a free-for-all. He exercised firm and fair control over the conduct of the trial, made prompt evenhanded rulings on objections, admonished counsel when necessary, and constantly reminded the jury that what counsel said was not evidence. We find no misconduct of counsel or miscarriage of justice resulting from the form of the questions propounded by plaintiffs’ counsel. We find nothing approaching the egregious conduct of counsel or lack of courtroom control by the judge that occurred in Love v. Wolf (1964) 226 Cal.App.2d 378 [38 Cal.Rptr. 183], cited by Ford to support its contentions.

(4) Arguments to the Jury.

Ford contends that counsel for Grimshaw committed prejudicial misconduct during argument to the jury by arguing matters not supported by the evidence, exaggerating, mischaracterizing experts’ testimony, arguing evidence which had been excluded, and arguing evidence admitted for a limited purpose as if it had been admitted for all purposes. Ford also complains that in rebuttal argument, Mr. Robinson, arguing for Grimshaw, suggested an improper means of fixing damages.

It is settled that misconduct of counsel in argument to the jury may not be urged for the first time on appeal absent a timely objection and request for admonition in the trial c